Punjab-Haryana High Court
Raj Singh And Another vs . The State Of Haryana on 1 October, 2008
Author: K.S.Garewal
Bench: K.S.Garewal, Jitendra Chauhan
Criminal Appeal Nos. 363 & 430 DB of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 1.10.2008
Criminal Appeal No. 363 DB of 2005
Raj Singh and another Vs. The State of Haryana
AND
Criminal appeal No. 430 DB of 2005
Ashok Kumar Vs. The State of Haryana
CORAM:- HON'BLE MR. JUSTICE K.S.GAREWAL
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Shri Baldev Singh, Senior Advocate, assisted by
Mr. Arashvinder Singh, Mr. R.K.Dahiya and
Mr. Bijender Dhankar, Advocates for the appellants.
Ms. Navin Malik, Additional Advocate General, Haryana
K.S.GAREWAL,J.
Ashok Kumar (26), son of Sardara and Laxmi Devi (50), of Nahra District Sonepat got married to Sunita, daughter of Kartar Singh and Dhanpati (PW-7), of Dulhera, Police Station Bahadurgarh in July 1999. On May 23, 2000 at 10.00 p.m. Sunita suffered extensive burns in her matrimonial home, struggled to survive for five days but inspite of prompt medical attention, she succumbed to burn injuries on May, 28, 2000. The learned Additional Sessions Judge, Sonepat tried Sunita's husband Ashok Kumar, mother-in-law Laxmi Devi, Ashok Kumar's brother Raj Singh and his wife Phoolan, for the murder of Sunita. Ashok Kumar, Raj Singh and Phoolan were found guilty under Section 302/34 and 498-A of the Indian Penal Code on May 2, 2005 and sentenced to life imprisonment and lesser sentences. Laxmi Devi was acquitted.
The case was registered on the basis of the complaint filed by Dhanpati before ASI Bishamber Lal. Dhanpati's statement was recorded at Criminal Appeal Nos. 363 & 430 DB of 2005 2 3.15 a.m. on May 24, 2000 at Post Graduate Institute of Medical Sciences, Rohtak where her daughter had been admitted.
The prosecution case as unfolded in Dhanpati's statement was that at the time of marriage, she had given dowry more than her capacity. But when Sunita returned to her parental home after 15 days of her marriage, she told her mother that Laxmi Devi, Raj Singh, Phoolan, Anita and Ashok Kumar would taunt her for bringing less dowry. They would say that she had not brought a fridge and a colour television.
A month later Ashok Kumar came to take Sunita back, this was resisted by Dhanpati's son Kuldeep and nephew Balraj. Ashok undertook that Sunita would not be harassed. On this Sunita returned with Ashok to Nahra. 1 ½ months later Dhanpati visited her daughter at Nahra. Ashok Kumar, his brother Raj Singh and mother Laxmi Devi told Dhanpati that they had to purchase a vehicle and she should bring Rs. 2.5 lacs. Dhanpati replied that she did not have such capacity and asked them to send Sunita back but they did not do so. After this incident, Sunita's harassment increased.
On May 23, 2000 Dhanpati again visited Nahra to find out how Sunita was doing. On seeing her, Sunita started weeping and said that her in-laws used to beat her and would kill her. Dhanpati stayed for a while and then returned home and took her son Kuldeep alongwith her, back to Sunita's house. They reached at 10.00 p.m. and wanted to take Sunita back. At this time Ashok Kumar, Raj Singh and Phoolan were present. They started scuffling with Dhanpati and Kuldeep and pushed them out of the house. Sunita was set on fire after kerosene oil was poured on her. A number of villagers gathered and Sunita was taken in a jeep to the hospital Criminal Appeal Nos. 363 & 430 DB of 2005 3 at Sonepat. After some time she was taken to Post Graduate Institute of Medical Sciences, Rohtak and admitted in ward No.4.
Dhanpati's statement was recorded by ASI Bishamber Lal at Rohtak after he had satisfied himself that Sunita was unfit to make a statement. Case was originally registered under Sections 307/498-A/34 I.P.C. After Sunita's death offence under Section 307 was converted to Section 302 I.P.C.
The first medico-legal examination of Sunita was conducted at General Hospital, Sonepat by Dr. C.P.Sapra (PW-11) at 2.45 a.m. (wrongly recorded as p.m. in the statement of the witness) on May 24, 2000. In the opinion of the Medical Officer the patient was conscious, oriented, both pupils were normal. Superficial to deep 90% burns were present all over the body except small areas here and there. Injuries were kept under observation and the probable duration was about 24 hours. Dr. C.P.Sapra sent information to Incharge Police Post, General Hospital, Sonepat at 2.45 a.m. and then referred Sunita to PGIMS, Rohtak.
Sunita's condition kept on wavering between consciousness and unconsciousness. She would sometimes be declared fit to make a statement and sometimes unfit. Sunita was recorded fit to make statement on May 24, 2000 at 3.35 p.m. by Dr. Gauri Shankar (PW-3) but the statement which was recorded thereafter was not led in evidence by the prosecution. We had a look in the case diaries and found that a statement of Sunita had indeed been recorded on May 24 by ASI Bishamber Lal. Unfortunately ASI Bishambar Lal died during the course of trial before his evidence could be recorded.
Nevertheless, Mrs. Sunita Gupta, Judicial Magistrate, Rohtak Criminal Appeal Nos. 363 & 430 DB of 2005 4 (PW-12) was directed by Chief Judicial Magistrate, Rohtak on the basis of the application of ASI Bhishamber Lal, to record Sunita's statement. Mrs. Gupta reached the hospital, obtained Sunita's fitness certificate from the Medical Officer (Dr. R.Suresh) at 9.25 a.m. and recorded Sunita's statement. This statement was to subsequently to become a dying declaration.
Sunita died on May 28, 2000 and at 3.45 p.m. post mortem examination was conducted on her dead body by Dr. S.S.Dahiya and Dr. Ashok Goel. Their postmortem findings are as under:-
"There were burns present all over its person varying from superficial to deep all over the body except lower 1/4th of anterior abdominal wall, perinium, both soles and back of both knees. Synging of hair was present Suit particles were present. In larynx and trechae at places pus formation was present. Soft scab was present at places. Total percentage of burns were 85%.
Both lungs were congested. Stomach contained 50 mls of greyish food. Liver, spleen and kidneys were congested. Uterus contained 21 cms long male foetus. It was about 4 months old."
In the opinion of the Medical Officers cause of death was ante mortem burns and its complications which were sufficient to cause death in ordinary course.
After completion of the investigation Ashok Kumar and her mother Laxmi Devi were sent up for trial. The other accused Raj Singh, Phoolan and Anita were placed in column 2 of the report under Section 173 Cr.P.C. Charges were framed against the two accused, seven witnesses were examined including Mrs. Sunita Gupta. Thereafter the learned Sessions Criminal Appeal Nos. 363 & 430 DB of 2005 5 Judge on October 3, 2000 summoned Raj Singh, Phoolan and Anita under Section 319 Cr.P.C. The learned Sessions Judge had clearly been influenced by the dying declaration recorded by Mrs. Gupta which also contained the names of Raj Singh, Phoolan and Anita.
It appears that Anita is dead. This has been recorded in the order of the learned Sessions Judge on October 25, 2001. Therefore, proceedings against Anita abated. Charges were framed against Ashok Kumar, Laxmi Devi, Raj Singh and Phoolan under Section 498-A, 302/34 and alternatively, under Section 304-B I.P.C. to which they pleaded not guilty and claimed trial.
The main witnesses examined by the prosecution were Dr. S.S.Dahiya (PW-1), Dr. Gauri Shankar (PW-3), Dhanpati (PW-7), Dr. C.P.Sapra (PW-11), Mrs. Sunita Gupta (PW-12) and SI Rahul Dev (PW-13) (though not the Investigating Officer, this witness identified the writings and signatures of late ASI Bishamber Lal). Dr. R. Suresh, who had declared Sunita fit at 9.25 a.m. on May 25, 2000 was not examined.
Accused were examined without oath under Section 313 Cr.P.C. They denied all the circumstances appearing against them. Ashok Kumar gave the following explanation:-
"I have been falsely implicated in this case. Sunita deceased caught fire while working in kitchen on stove. She was tutored by ASI Bishamber Lal. Her mother Dhanpati and her brother and she made statement before the Magistrate totally false under the influence of the police and her mother and brother."
Similar statements were made by the other accused.
Three things stand out in the judgment of the learned Sessions Criminal Appeal Nos. 363 & 430 DB of 2005 6 Judge which show that the learned Sessions was somewhat unfamiliar with the evidence recorded and also not clear how the presumption under Section 113-B of the Evidence Act is used. Firstly, the learned Judge referred to the evidence of Kuldeep (PW-5) and Balraj (PW-6). These two witnesses were examined at the trial but after their evidence was recorded an order was passed under Section 319 Cr.P.C. to summon additional accused. Charges were reframed and evidence was recorded afresh. In the de novo trial neither Kuldeep nor Balraj were examined as witnesses and yet great reliance has been placed on their testimonies. This is really strange and shows lack of interest on the part of the learned Judge, to say the least. Secondly, it was pointed out that the learned Judges devoted a whole page to raise the presumption under Section 113-B of the Evidence Act and discuss its application to the facts of the present case but while concluding his discussion he holds the accused guilty under Section 302 I.P.C. We are not sure that the learned Judge was able to isolate the reasons for raising the above said presumption and holding that "accused can not be exonerated and court has only the option to presume that husband Ashok Kumar and his relatives Raj Singh and Phoolan have committed death of deceased/victim." Thirdly, the learned Judge in the same breath held that the prosecution had proved its case against Ashok Kumar, Raj Singh and Phoolan who have committed the murder in furtherance of their common intention.
Judges must be careful and clear about what evidence they can read for what purpose. Evidence of dowry death or presumption of dowry death do not have any relevance when the substantial evidence of dying declaration of the deceased is considered in relation to murder the charge. Judges should be able to separately deal with the two charges because both Criminal Appeal Nos. 363 & 430 DB of 2005 7 offences are distinct and separate. They have different ingredients and different modes of proof. For dowry death, presumption can play an important part, but for murder generally speaking, the presumption is of innocence of the accused because it is the prosecution which has to prove its case beyond reasonable doubt.
Coming to the value and reliability of the dying declaration, the tests are different. The Supreme Court had in Paparambaka Rosamma Vs. State of A.P. (1999) 7 SCC 695 held as under:-
"The deceased had sustained extensive burn injuries on her person. The doctor who performed the post-mortem stated that the injured had sustained 90% burn injuries. The prosecution case was solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind.... In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. (para 8)."
However, Paparambaka's case (supra) was over ruled by Five Judges of the Supreme Court in Laxman Vs. State of Maharashtra (2002) 6 SCC 710, who held as under:-
"It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind Criminal Appeal Nos. 363 & 430 DB of 2005 8 especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he had recorded the dying declaration."
Thereafter, the Supreme Court in P.V.Radhakrishna Vs. State of Karnataka (2003) 6 SCC 433 discussed the meaning and scope of dying declarations recorded under Section 32 of the Evidence Act and observed as follows:-
"The general rule is that all oral evidence must be direct. The eight clauses of Section 32 of the Evidence Act are exceptions to the general rule against hearsay. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute"........
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on a guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant.".....Criminal Appeal Nos. 363 & 430 DB of 2005 9
"The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
We are of the considered opinion that the dying declaration of Sunita deceased Ex.PK was validly recorded by Mrs. Sunita Gupta, Judicial Magistrate Rohtak on May 25, 2000. An application was filed by ASI Bishamber Lal before Chief Judicial Magistrate on May 25 requesting that Sunita's statement be recorded. The Judicial Magistrate, reached the hospital at 9.20 a.m. Opinion of Dr. R. Suresh was obtained regarding fitness and thereafter Sunita's statement was recorded, when she was alone in the presence of the Doctor. Sunita put her thumb impression on the statement.
Dr. R. Suresh had at 9.25 a.m.certified that Sunita was fit to a make statement. After the statement was recorded Dr. R. Suresh had again certified at 9.40 a.m. that the statement had been voluntarily given and that Sunita had remained fit during the course of giving the statement.
According to learned Senior Counsel appearing for the appellants reliance cannot be placed on the dying declaration recorded by the Magistrate because the Medical Officer of the deceased was not produced by the prosecution to enable the defence to test him through cross-examination. There are so many questions which could be put to the Medical Officer. What were the doses of sedatives/pain killers given to Criminal Appeal Nos. 363 & 430 DB of 2005 10 Sunita? How much time had passed since the last dose was given? Was Sunita fully conscious or floating between consciousness and unconsciousness. It was argued that it would be unsafe to record conviction on the basis of dying declaration alone even if this has been recorded by the Judicial Magistrate as it had still to pass the test of scrutiny of the Court. Reference is made to Nallapati Sivaiah Vs. Sub Divisional Officer 2007 (4) RCR (Criminal) 439. In this case the entire nature of the dying declaration was considered and summed up. Laxman case (supra) was also explained in the following words:-
"The Constitution Bench in its authoritative pronouncement declared that there is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when a dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to make the statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor provided the court ultimately by holds the same to be voluntary and truthful. The judgment does not lay down a proposition that medical evidence, even if available on record, as also the other attending circumstances should altogether be ignored and kept out of the consideration to assess the evidentiary value of a dying declaration whenever it is recorded by a Magistrate. The Constitution Bench resolved the difference of opinion between the decisions expressed by the two Benches of three learned judges in Paparambaka Rosamma and ors. Vs. State of A.P. Criminal Appeal Nos. 363 & 430 DB of 2005 11 1999 (4) RCR (Criminal) 104 : (1997) 7 SCC 695 and Koli Chunilal Savji and anr. Vs. State of Gujarat (Supra) and accordingly held that there is no requirement of law that there should be always a medical certification that the injured was in a fit state of mind at the time of making a declaration and such certification by the doctor is essentially a rule of caution and even in the absence of such a certification the voluntary and truthful nature of the declaration can established otherwise."
The question to be considered in the present case is whether it would be safe to uphold conviction on the basis of the dying declaration alone though recorded by the Magistrate but without the Medical Officer being examined. According to the learned Senior Counsel there was evidence of mother of the deceased, Dhanpati (PW-7), to the effect that the deceased had never been subjected to any cruelty and nor had there been any dowry demand. Dhanpati had further testified that the deceased was living a happy married life with her parent-in-laws and husband and they had cordial relations with her. Lastly, Dhanpati stated that the deceased had caught fire while working in the kitchen, on account of bursting of a kerosene oil stove. Needless to say that Dhanpati was declared a hostile witness as she did not support the prosecution. We need not go into the reasons why Dhanpati had done a volteface, a complete about turn. Dhanpati was the mother of the deceased who had set the police into motion but who after 2 years of the occurrence had lost all memory of her daughter and completely discarded the essential duty a citizen to ensure that criminals are made to answer for their crime. We are not inclined to rely on Dhanpati 's statement to contradict the dying declaration.
Criminal Appeal Nos. 363 & 430 DB of 2005 12
However, there was another curious feature in this case which caught our eye. On May 24, 2000 at 3.35 p.m. Dr. Gauri Shankar had declared Sunita fit to make a statement. Usually when such a certificate is obtained by the Investigator, it is followed by the actual recording of the statement of the injured person. We checked the case diaries recorded by ASI Bishamber Lal and found that on May 24 he had indeed recorded a statement of Sunita, after getting the medical certificate from Dr. Gauri Shankar. This document was never tendered in evidence but all the same the Court is entitled to examine this evidence. This power is given to Judges under Section 165 of the Evidence Act which entitles a Judge, in order to discover or obtain proper proof of relevant facts, to order the production of any document. We have seen the statement and find that this statement is markedly similar to the dying declaration recorded by the Judicial Magistrate on the following day. But how will this similarity make a difference if the earlier statement is similar to the later statement. It is obvious that when the later statement was drawn up, the earlier statement was before the person who recorded the later statement. Sunita's statement on May 24 was before the Judicial Magistrate when she recorded the dying declaration on May 25.
The narration of events in the dying declaration recorded by the Judicial Magistrate is very similar if not identical to the statement recorded by ASI Bishambar Lal on May 24, 2000. Both statements of the deceased had been recorded after the Medical Officer attending on her had declared her fit to make statement. ASI Bishamber Lal died by the time the case came to trial, therefore, this may be the reason why the statement recorded by him was not placed on record. If the dying declaration recorded Criminal Appeal Nos. 363 & 430 DB of 2005 13 by the Judicial Magistrate is to be accepted the prosecution ought to have produced the Medical Officer Dr. R. Suresh. This would have certainly have added more acceptability to the dying declaration. It would have given the defence an opportunity to cross-examine him in respect of the level of consciousness of the maker of the statement, the medicines which he had administered and the presence of her family members or investigator near her. Nevertheless, we are convinced that the Magistrate had before her the earlier statement recorded by ASI Bishambar Lal. If this is so then the dying declaration of Sunita deceased as recorded by the Magistrate was not something which she had stated but was based on what she had earlier stated to ASI Bishambar Lal. The earlier dying declaration was never produced before the trial court but has been referred by us, by relying on Section 165 of the Evidence Act read with Section 172 of the Code of Criminal Procedure, in order to determine the real truth. Therefore, the truth is that the prosecution case is based on the statement recorded by ASI Bishamber Lal on May 24 but in the absence of the Investigator, neither was the statement produced in court nor was any cross-examination directed towards the circumstances in which the statement was recorded.
In this case it is quite obvious that death of the deceased had occurred nine months after marriage, there was evidence of harassment and cruelty in respect of demand of dowry, death had occurred otherwise than under usual circumstances. The ingredients of Section 304-B IPC are present. Presumption under Section 113-B of the Evidence Act can now be pressed into service. The only question that remains is whether the offence was committed by Ashok Kumar acting individually or whether Ashok Kumar's brother Raj Singh and sister-in-law Phoolan are equally guilty. It is Criminal Appeal Nos. 363 & 430 DB of 2005 14 not unusual for an Investigator to enlarge the number of accused and involve close relatives of the husband in a case under Section 304-B IPC. We accept the evidence of dowry demand as stated in the dying declarations but do not accept these declarations as reliable evidence of participation of Raj Singh and Phoolan.
Resultantly Criminal Appeal No. 363 DB of 2005 filed by Raj Singh and Phoolan is accepted. They are hereby acquitted of the charges framed against them. They are on bail. Their bail bonds are discharged.
Criminal Appeal No. 430 DB of 2005 filed by Ashok Kumar is partly allowed. Conviction of Ashok Kumar is hereby converted from under Section 302 IPC to one under Section 304-B IPC and he is sentenced to rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/-,in default of payment of fine, he shall further undergo rigorous imprisonment for a further period of one year. Fine if recovered shall be paid to the heirs of the deceased on her father's side but to District Legal Services Authority, Sonepat because Dhanpati did not support the prosecution. Ashok Kumar if on bail shall be taken into custody forthwith to undergo the remaining part of the sentence.
(K.S.GAREWAL) JUDGE (JITENDRA CHAUHAN) JUDGE October 1, 2008 RSK NOTE: Whether to be referred to the Reporter or not? Yes