Punjab-Haryana High Court
Raghbir Singh vs State Of Punjab on 30 October, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.S-13-SB of 2003
.....
Date of decision:30.10.2013
Raghbir Singh
...Appellant
v.
State of Punjab
...Respondent
....
(2) Criminal Revision No.2145 of 2003
.....
Jarnail Kaur
...Petitioner
v.
State of Punjab and others
...Respondents
....
Coram: Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. D.S. Malwai, Advocate for the appellant in Criminal
Appeal No.S-13-SB of 2003 and for respondents No.2 to 5
in Criminal Revision No.2145 of 2003.
Mr. Yogesh Gupta, Assistant Advocate General, Punjab
for the respondent-State.
Mr. G.S. Sandhu, Advocate for the complainant in Cr. Appeal
No.S-13-SB of 2003 and for the revision petitioner in
Criminal Revision No.2145 of 2003.
......
Inderjit Singh, J.
This judgment will dispose of above mentioned Criminal Appeal No.S-13-SB of 2003 filed by Raghbir Singh and Criminal Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [2] Revision No.2145 of 2003 filed by Jarnail Kaur against State of Punjab, Balkar Singh, Balbir Singh, Ishar Kaur, and Baljit Kaur as these arise out of the same judgment of conviction and order of sentence dated 28.11.2002 passed by learned Additional Sessions Judge (Adhoc), Patiala.
The above criminal appeal and criminal revision have been filed against the judgment of conviction and order of sentence dated 28.11.2002 passed by learned Additional Sessions Judge (Adhoc), Patiala, whereby accused-appellant Raghbir Singh has been held guilty and convicted for the offence under Section 306 of the Indian Penal Code (hereinafter referred to as `IPC'). However, accused Balkar Singh, Balbir Singh, Ishar Kaur, and Baljit Kaur have been acquitted of the charge framed as against them. Accused-appellant Raghbir Singh has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of `500/- for the offence under Section 306 IPC.
Criminal Revision No.2145 of 2003 has been filed for punishing accused-respondents No.2 to 5 for the offence under Section 302 IPC.
The brief facts of the prosecution case are that on 5.9.1999, on receiving a wireless message regarding admission of Binder Kaur alias Ravinder Kaur in A.P. Jain Hospital, Rajpura due to burn injuries, ASI Gurdev Singh along with other Police officials reached the hospital, where he was informed that she has been referred to Patiala. On 6.9.1999, ASI Gurdev Singh along with Police officials reached Rajindra Hospital, Patiala and obtained the opinion of the doctor regarding her fitness to Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [3] make the statement. The doctor declared her unfit to make statement. On the same day in the evening SI Hargobind Singh along with ASI Gurdev Singh and other Police officials reached Rajindra Hospital, Patiala and obtained the opinion of the doctor to record her statement. The doctor declared her condition as critical. SI Hargobind Singh again reached the hospital to know the condition of the injured. She was declared fit to make the statement. SI Hargobind Singh then informed the Duty Magistrate. On the direction of the Judicial Magistrate, SI Hargobind Singh reached the hospital to know the condition of the injured. She was declared fit to make the statement. Then the Judicial Magistrate recorded the statement of Ravinder Kaur alias Binder Kaur wife of Raghbir Singh, in which she stated that she was married on 15.10.1993 with Raghbir Singh. She gave birth to two daughters, namely, Manjit Kaur of five years and Gurpreet Kaur of three years. She had been separated from the family from 4/5 months. Her father-in-law has given a room of four khans for her living. Her mother-in-law Ishar Kaur and sister of her husband Baljit Kaur, who is unmarried, have been giving her filthy abuses, since the time of separation. They have given her slaps on two times. Her husband did not say anything to them, rather he had been beating her at their instance. Her husband has come to the village from 4/5 months after performing the job of taxi driver at Delhi. Her mother-in-law and Baljit Kaur were asking her to give them the money earned by Raghbir Singh at Delhi which had been given to her. They had a doubt that her husband had given the money to her and she was not giving the same to them. She tried to make Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [4] them understand that Raghbir Singh had not given any money to her.
On 5.9.1999 at about 7.00 p.m., she was sitting in her room. Ishar Kaur and Baljit Kaur came to her. The younger brothers of her husband, namely, Balkar Singh and Balbir Singh remained standing outside. Her mother-in-law told her to give them the money. She tried to satisfy them that Raghbir Singh had not given any money to her. She had no money. On this her mother-in-law caught her from the arms and Baljit Kaur put the kerosene oil on her. She tried to run away but the nearby standing Balkar Singh gave her fire with the matchstick. Balbir Singh stopped her to go out. Her husband Raghbir Singh was also standing there. She started crying loudly. They did not try to put off the fire but were looking at her. The neighbourers then reached there including his relative Karmu. He witnessed the occurrence. They put off the fire. On the arrival of the public, her husband also started putting off the fire. On the basis of this statement, formal FIR was recorded. After necessary investigation, the challan was presented in Court.
On presentation of challan, the trial Court finding prima facie case against accused, framed charges for the offences under Section 302 read with Section 34 IPC and 120-B IPC, to which the accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Dr. D.S. Bhullar, Department of Forensic Medicine, Medical College, Patiala, who conducted post-mortem examination on the dead body of Ravinder Kaur alias Binder Kaur on 13.9.1999 and found that epidormal to deep Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [5] burns were present all over the body except upper parts of face, scalp, back of neck, soles of feet, dorsal side of feet and perineal area. The cause of death was shock due to burns which were ante-mortem and sufficient to cause death in the ordinary course of nature. PW-2 ASI Gurdev Singh mainly deposed regarding his visit to A.P. Jain Hospital, Rajpura and also to Rajindra Hospital, Patiala and he deposed regarding the opinion of the doctor. PW-3 Dr. Asdeep Singh, deposed regarding conducting of medico-legal examination of Binder Kaur on 5.9.1999. She was brought by her relative Surjan Singh at 9.30 p.m. PW-4 Gurbachan Singh mainly deposed regarding scaled site plan Ex.PH. PW-5 Shri S.K. Arora, Civil Judge (Senior Division), Faridkot, deposed regarding recording the statement of Binder Kaur. In cross-examination, he stated that he has not recorded the time of starting the statement and when it completed. The doctor had not mentioned the time. Even on the endorsement, no time has been mentioned. In the application also, no time has been mentioned. One lady and one gent were sitting with Ravinder Kaur alias Binder Kaur when they reached there but they were sent out. A suggestion was given that Binder Kaur was not in a position to make statement which was denied. He also stated in cross-examination that he did not inquire whether those persons were from the parents side of Binder Kaur or from her in-laws side. PW-6 HC Jagir Singh and PW-7 C-II Gurbachan Singh are formal witnesses, who tendered in evidence their affidavits Ex.PM and Ex.PN respectively. PW-8 Jarnail Kaur wife of Gurmail Singh is the mother of the deceased. She deposed as per Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [6] prosecution version. PW-9 SI Hargobind Singh is the Investigating Officer, who mainly deposed regarding conducting of investigation in this case.
At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and was confronted with the evidence of the prosecution, but he denied the correctness of the evidence and pleaded himself as innocent. Appellant-Raghbir Singh in his statement under Section 313 Cr.P.C. stated that he had been falsely implicated in this case by the mother of deceased. He never misbehaved or maltreated Ravinder Kaur. She put kerosene oil on her body and lit herself on fire. He tried to extinguish fire and also received burn injuries in that process. He is innocent.
No defence witness in defence has been examined.
The learned trial Court after going through the evidence and material on record, vide its impugned judgment and order convicted and sentenced the accused-appellant for the offence as mentioned above and acquitted accused-Balkar Singh, Balbir Singh, Ishar Kaur and Baljit Kaur of the charge framed as against them.
At the time of arguments, learned counsel for the appellant only argued that the appellant has been falsely implicated in the present case. No other argument has been advanced by him.
On the other hand, learned Assistant Advocate General, Punjab appearing for the respondent-State and learned counsel for the complainant argued that there is nothing on the record to show that Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [7] appellant Raghbir Singh is innocent. He also argued that there is dying declaration against the appellant. There is no defence version given by the appellant. The occurrence took place in the house of the appellant and he is to explain under Section 106 of the Indian Evidence Act as the facts were in special knowledge of the appellant, but there is no explanation as to why she committed suicide. He argued that the oral statement of PW-8 Jarnail Kaur and the dying declarations recorded by Judicial Magistrate and the Investigating Officer support and corroborate the prosecution version. The evidence of the prosecution is also supported and corroborated by medical evidence and investigation of the case.
In the revision petition filed by the complainant-petitioner, learned counsel for the revision petitioner argued that all the accused- respondents No.2 to 5 including appellant Raghbir Singh and Balkar Singh, Balbir Singh, Ishar Kaur, Baljit Kaur etc., who have been acquitted are liable to be convicted and sentenced for the offence under Section 302 IPC on the basis of dying declaration. The learned trial Court has wrongly acquitted all these accused under Section 302 IPC. He argued that the examination of the doctor to prove that the injured Binder Kaur was in fit condition is not necessary when the Judicial Magistrate is recording the statement and recording his satisfaction regarding the fitness of the injured, at the time of recording of dying declaration. Therefore, he argued that respondents No.2 to 5 Raghbir Singh, Balkar Singh, Balbir Singh, Ishar Kaur, and Baljit Kaur be convicted for the offence under Section 302 IPC.
Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh
Cr. Appeal Nos.S-13-SB of 2003 etc. [8] I have gone through the evidence on record minutely and carefully and have also heard learned counsel for the parties and learned Assistant Advocate General, Punjab for the respondent-State.
From the evidence on record, firstly I find no merit in the arguments of the learned counsel for the appellant in the criminal appeal. In the present case, the occurrence took place in the house of appellant Raghbir Singh. It is in the evidence and even in the dying declaration that Raghbir Singh husband of Binder Kaur along with children were residing separately in the house. The occurrence took place in the house of appellant Raghbir Singh. There is no explanation as to why she committed suicide. The facts were especially within the knowledge of appellant Raghbir Singh, but he has not explained the same nor given any explanation. No defence witness has been examined. There is nothing on the record to show that he is innocent or has been falsely implicated. There is no reason or ground to falsely implicate him in the present case. Binder Kaur has also levelled allegations in the dying declaration against appellant Raghbir Singh. Jarnail Kaur PW-8 mother of the deceased also deposed as per prosecution version. The evidence of the prosecution is also supported and corroborated by medical evidence and investigation of the case.
Therefore, from the evidence on record, it cannot be held that Raghbir Singh appellant is innocent or has been falsely implicated in the present case.
As regards the revision petition, I find that there is no other Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [9] evidence on the record of any type except the dying declaration to prove the offence under Section 302 IPC. It is settled law that the accused can be convicted on the basis of dying declaration alone but the Court is to scrutinise the dying declaration carefully and more cautiously and also got corroboration from some other evidence when there is some chance of false implication, exaggeration, tutoring etc. In the present case, there are two dying declarations, one as recorded by Judicial Magistrate and the other is by SI Hargobind Singh. As per the prosecution version, firstly ASI Gurdev Singh went to A.P. Jain Hospital, Rajpura but it was told to him that injured Binder Kaur had been referred to Rajindra Hospital, Patiala. Then at 8.15 a.m. he went to Rajindra Hospital, Patiala and reached at 10.00 a.m. and obtained the opinion of the doctor as per endorsement Ex.PF/1. Binder Kaur was declared unfit to make the statement and the time written on the application looks to be 1.00 p.m. which later on tried to be made as 11.00 a.m. On the same day, as per prosecution version, application was given for recording the dying declaration by the Judicial Magistrate and the doctor declared the condition of Binder Kaur as critical. The Judicial Magistrate directed SI Hargobind Singh first to obtain opinion of the doctor regarding fitness of the injured. Then the Investigating Officer filed an application and obtained the opinion regarding fitness of the injured. The Judicial Magistrate recorded the statement, but as per his cross-examination no time has been mentioned when he started writing the dying declaration. There was no time mentioned when he completed the statement. There is Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [10] no time mentioned on the endorsement of the doctor. There is no time on the application filed by the Police to the doctor to get the opinion regarding fitness which fact creates doubt regarding the fitness of Binder Kaur especially when the doctor was not brought to the witness box, who was present at the time of recording of dying declaration and who gave the opinion regarding fitness of the injured. Learned trial Court has correctly appreciated the evidence on this point and also held that even no bed head ticket or other record of the hospital has been produced from where the condition of injured can be known. Therefore, in the facts and circumstances of the present case, I find no illegality in the finding of the trial Court.
In the revision petition the Court is to see whether there is any illegality or the judgment is perverse or some evidence has not been discussed or the reasoning given by the trial Court is not as per law. In the facts and circumstances of this case the Court has correctly not relied upon the dying declaration. As per the statement of PW-8, they also reached the hospital and Binder Kaur also talked with Jarnail Kaur etc. The Judicial Magistrate has stated that one man and one woman was sitting when he reached the hospital but he did not inquire whether they were from the parents side or from in-laws side. The tutoring of Binder Kaur also cannot be ruled out in this case. Otherwise also, Balkar Singh, Balbir Singh, Ishar Kaur and Baljit Kaur were residing separately from Binder Kaur. There is only general allegation that they were demanding share in the money earned by Raghbir Singh, which they suspect was Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [11] handed over to Binder Kaur. There is nothing on the record that these accused-respondents asked Raghbir Singh to give the money. There is nothing as to how much money he had earned or brought. Otherwise also, as per evidence, he shifted to the village 4/5 months earlier and the house was got constructed by father of Raghbir Singh for Raghbir Singh. Therefore, in these circumstances, it looks unnatural that these respondents in the revision petition were asking for the share.
Again when the dying declaration was recorded by the Judicial Magistrate, then what was the need to record the dying declaration by the Investigating Officer also has not been explained.
Learned counsel for the accused-respondents in the revision petition placed reliance on the judgment of Supreme Court in Shindo alias Sawinder Kaur and another v. State of Punjab, 2011 (2) R.C.R. (Cr.) 878 (SC), in which the dying declarations were not believed as the doctor was not examined, who declared the deceased fit to make the statement.
Learned counsel for the accused-respondents in the revision petition placed reliance on the judgment of the Supreme Court in Ramu alias Ram Kumar and others v. Jagannath, AIR 1994 SC 26, in which it is stated that exercise of revisional jurisdiction is not to be taken lightly when invoked by private complainant, setting aside of order of acquittal by High Court and the appeal was remanded for fresh hearing. It was held that interference by revisional Court is not justified in revision filed by private complainant against the order of acquittal. I have gone through this judgment. The law laid down in this case is fully applicable in the Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [12] present case.
Learned counsel for the accused-respondents in the revision petition placed reliance on the judgment of the Supreme Court in Bindeshwari Prasad Singh alias B.P. Singh and others v. State of Bihar (Now Jharkhand) and another, 2002 (4) R.C.R. (Cr.) 61 on the same point. He also placed reliance on the judgment of the Supreme Court in Jagannath Choudhary and others v. Ramayan Singh and another, AIR 2002 SC 2229, in which also it is held that scrutiny of evidence by High Court is not permissible. High Court interfering with acquittal on grounds that trial Court erred in discarding evidence of four eye-witnesses whose presence at scene of occurrence is not ruled out. It is held in that case that failure of the High Court to take note of other findings on which acquittal was recorded by trial Court is not proper.
Learned counsel for the accused-respondents in the revision petition placed reliance on the judgment of the Supreme Court in Nirmala Maruti Gunjal v. State of Maharashtra through the Police Inspector, Deolali, 2012 (1) R.C.R. (Cr.) 270, in which it is held that Medical Officers stated that deceased was fit to make a statement but they had not ascertained the mental fitness to make a rational statement.
Learned counsel for the accused-respondents in the revision petition also placed reliance on the judgment of the Supreme Court in Satyajit Banerjee v. State of West Bengal, 2005 (1) R.C.R. (Cr.) 723, in which it is held that direction for retrial should not be made by the High Court in all or every case where acquittal of accused is for want of Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [13] adequate or reliable evidence. Direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. I have gone through this judgment. The law laid down in this judgment fully applies to the facts of the present case.
On the other hand, learned counsel for the revision petitioner in the revision petition placed reliance on the judgment of the Supreme Court in State of Madhya Pradesh v. Dal Singh and others, 2013 (3) R.C.R. (Cr.) 1. In this case, it is held that any person can record dying declaration, but the person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement.
Learned counsel for the revision petitioner in the revision petition also placed reliance on the judgment of the Supreme Court in Govindappa v. State of Karnataka, (2010) 6 SCC 533, in which it is held that the mere absence of medical certificate regarding condition of deceased by itself is not sufficient to discard the dying declaration. Medical certification is only a rule of caution. The person recording the dying declaration must be satisfied about fit state of mind of the patient. Both these citations will not apply in the case, as already discussed no doctor was examined, no time was given and no medical record was produced and at 1.00 p.m. her condition was critical etc. Learned counsel for the revision petitioner in the revision petition also placed reliance on the judgment of the Supreme Court in Ram Briksh Singh and others v. Ambika Yadav and another, 2004 (2) Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal Nos.S-13-SB of 2003 etc. [14] R.C.R. (Cr.) 182, in which it is held that revisional Court cannot set aside order of acquittal on appreciation of evidence, but it can set aside the order on basis of material evidence which was available on record, but overlooked by trial Court. I have gone through the law laid down in this judgment. This judgment having distinguished facts will not apply in the present case.
Therefore, from the above discussion, I find that the prosecution has duly proved its case against Raghbir Singh appellant for the offence under Section 306 IPC beyond any reasonable doubt. The impugned judgment of conviction and order of sentence passed against Raghbir Singh appellant is correct and as per law and are upheld. Consequently, Criminal Appeal No.S-13-SB of 2003 is dismissed.
As regards Criminal Revision No.2145 of 2003, I find no merit in the same and the same is also dismissed.
The sentence of appellant Raghbir Singh was suspended by the trial Court, which was extended by this Court vide order dated 7.1.2003, and he was released on bail during the pendency of the appeal. As the appellant is on bail, his bail/surety bonds stand cancelled. He is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
October 30, 2013. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2013.11.14 10:22 I attest to the accuracy and integrity of this document Chandigarh