Punjab-Haryana High Court
Dharam Pal And Another vs State Of Haryana on 17 August, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.954-SB of 2000
Date of decision: August 17, 2010
Dharam Pal and another
.. Appellants
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Anmol Partap Singh Mann, Advocate
for the appellants.
Mr. J.S. Rattu, D.A.G. Haryana for the respondent.
A.N. Jindal, J
This appeal has arisen out of the judgment dated 14.9.2000
passed by the learned Additional Sessions Judge, Rewari, convicting the
accused Satbir husband and his brother Dharampal under Sections 304-
B/498-A IPC and acquitting Hira Lal father-in-law, Gindo mother-in-law
and Bala wife of Dharam Pal of the said charges. The convicted accused
were sentenced as under :-
U/s 498-A IPC : Rigorous imprisonment for three years and
fine of Rs.10,000/- each.
U/s 304-B IPC : Rigorous imprisonment for seven years.
Kamlesh was married to Satvir about 1- ½ years prior to her
death. She caught fire on 5.9.1998 and thereafter died on 21.11.1998 due to
septicemia on account of the said burn injuries. She made statement under
Section 164 Cr.P.C. (Ex.PA/1), on 28.10.1998. The relevant translated
extract of her statement is as under :-
"It is of 5.9.1998. I am resident of Badala and my in-laws
house is at Kanuka. The name of my husband is Satvir. The
name of my father-in-law is Hira Lal. My husband, Jeth
Dharam Pal, Jethani Bala, mother-in-law Gindo had made a
Criminal Appeal No.954-SB of 2000 -2-
***
demand of Daj Dahej (dowry) and also had demanded a sum of Rs.50,000/- for construction of a house. I regretted saying that my parents were not in a position to pay the said amount. I was given beatings with Danda by my husband and Jeth gave me kick blows. I poured kerosene oil upon myself in the room in which the television was lying. The oil was in the Pawa, which was used as a lamp. I poured oil upon myself and lit the match stick and I was burnt. I made hue and cry, then my husband, father-in-law, mother-in-law, Jeth and neighbourer extinguished the fire. Then my father-in-law, Jeth and husband took me to the private hospital and admitted me there. Four days thereafter I was brought back to the house of my in-laws. When I was nearing death, then my father came to my in-laws house and took me to Badala. I remained at Badala for four days. Then on 27.10.1998, during evening at about 8.00 p.m. I am admitted in Government Hospital, Bhiwani. I was married one and half years ago. I do not want to say anything more.
RO&AC Sd/-
RTI Kamlesh JMIC/Bhiwani/Duty
Magistrate 28/10.98
5.50 P.M.
The parties are Jogi (snake charmers) by caste (a weaker tribe of the society). The occurrence had taken place on 5.9.1998 and she was not taken to any hospital up to 26.10.1998. It was only on 27.10.1998, that she was shifted to Government Hospital, Bhiwani. Postmortem examination was conducted on 22.11.1998 at 3.30 p.m. The case was investigated and ultimately challan was presented in the court.
The accused persons were charged under Section 498-A/304-B IPC, to which they pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Davinder Singh, Judicial Magistrate Ist Class, Bhiwani who on 28.10.1998 recorded statement (Ex.PA/1) of Kamlesh (deceased) under Section 164 Cr.P.C.
Criminal Appeal No.954-SB of 2000 -3-*** PW-2 Dharam Pal and PW-3 Mishri are the parents of the deceased who did not support the prosecution case regarding maltreatment and demand of dowry as such they were declared hostile.
PW-4 Dr. Jagtar Singh had medico-legally examined Rani deceased on 27.10.1998 and prepared the medico-legal report Ex.PD.
PW-5 C. Naresh Kumar had prepared the scaled site plan Ex.PE. PW-6 HC Hem Raj on receipt of ruqa Ex.PA/2 had recorded the formal FIR Ex.PA/4.
PW-7 ASI Basant Lal is the Investigating Officer. PW-8 Dr. Ishwar Singh had deposed that he, vide his opinion Ex.PA/6 and Ex.PA/7, had opined that she died of septicemia.
PW-9 Dr. J.S. Dahiya has proved the post mortem report which he conducted on 22.11.1998. It is also proved on the record that she expired on 21.11.1998.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Dharam Pal while denying the allegations explained as under :-
"I am innocent and have been falsely implicated in this case. We never harassed Kamlesh alias Rani on account of demands of dowry. The younger sister of Kamlesh alias Rani namely Ram Bhateri alias Bimlesh is also married to my younger brother Sanjay at village Kanuka. My brother Satyaveer and his wife Kamlesh were residing separately from us. In fact, Kamlesh had caught fire accidentally while cooking food on 5.9.1998 at the house. I, my parents and brother had extinguished the fire from the body of Kamlesh and got her treated in Yadav Hospital, Rewari. We had informed about this to the parents of Kamlesh. The parents and Ram Niwas and uncle of Kamlesh had visited her in Yadav Hospital, Rewari and at that time also, she had told them that she had caught fire accidentally while cooking food at Chulah in the house. After her father had taken her to his house then this Criminal Appeal No.954-SB of 2000 -4- *** false case was framed against us. We got her treated in PGIMS Rohtak and even donated blood to save her life. She also sworn an affidavit in the presence of Jai Bhagwan, Oath Commissioner and Shri Jora Singh Kundu Advocate in PGI, MS Rohtak on 13.11.1998. I may be allowed to lead defence ."
Identical pleas were raised by Satvir accused. Statements of the other accused need not be discussed as they were acquitted in the case.
In defence, the accused examined Jai Bhagwan Advocate (DW1), Jora Singh Kundu Advocate (DW2), Ram Niwas (DW3) and Ram Bhateri (DW4).
The trial resulted into conviction of Satvir and Dharam Pal. The trial court while recording conviction has relied upon the dying declaration alone.
Arguments heard. Record perused.
As regards the evidence with regard to death, having taken place within seven years of the marriage at the house of the accused other than in normal circumstances, is disputed. Relationship between parties as well as the fact that sister of deceased was married to the brother of the accused is also not disputed. The parties are jogies by caste, a weaker section in the State and convention of dowry is hardly prevalent on account of poverty. Any way, even in the instant case the star witnesses namely Dharam Pal (PW2) and Mishri (PW3) had not supported the case of the prosecution regarding harassment and maltreatment of the deceased 'soon before her death' on account of demand of dowry.
Before evaluating the dying declaration, it would be appropriate to reiterate some dates. The marriage took place 1- ½ years prior to 28.10.1998 i.e. recording of dying declaration of Kamlesh alias Rani which is in the shape of statement under Section 164 Cr.P.C. The occurrence took place on 5.9.1998 when she, even according to the dying declaration, poured kerosene upon herself and suffered burn injuries. The fire was extinguished by her father-in-law, mother-in-law, Jeth and neighbour. She was taken to some private hospital by her in-laws and was admitted there. Four days thereafter, she was brought back to the house by Criminal Appeal No.954-SB of 2000 -5- *** them. It was only when her condition became serious, her parents came and took her to Badala. The dying declaration reveals that she was taken to Badala only on 23.10.1998 and thereafter on 27.10.1998 she was admitted in Government Hospital, Bhiwani. This statement purported to be treated as dying declaration reveals that since 5.9.1998 till 23.10.1998 she remained with the accused who took care of her. She made a statement under Section 164 Cr.P.C. Ex.PA/1 on 28.10.1998. She died in PGI, MS, Rohtak on 21.11.1998. Postmortem was conducted on 22.11.1998. The FIR No.286 was registered on 29.10.1998 under Section 498-A IPC and thereafter on her death, offence under Section 304-B IPC was added. Even as per allegations in the dying declaration, there is single instance of maltreatment that too by Satvir and Dharampal and no allegations of maltreatment or demand of dowry were made by Kamlesh against others.
Now the question arises as to whether this statement recorded on 28.10.1998 i.e. long time after she suffered burn injuries and long time before she died could be treated as dying declaration. To make the statement admissible in evidence as dying declaration, the person making such statement should no longer be alive. The Apex Court in case Lakhan vs. State of M.P. 2010 (4) R.A.J. 595, while elaborating the meaning of dying declaration and the circumstances in which it could be treated as dying declaration observed as under :-
"The doctrine of dying declaration is enshrined in legal mxim "Nemo moriturus praesumitur mentiri", which means "a man will not meet his maker with a lie in his mouth". The doctrine of Dying Declaration is enshrined in Section 32 of the Indian Evidence Act, 1872 (hereinafter called as, "Evidence Act") As an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross examined. Such statements themselves are relevant facts in certain cases."Criminal Appeal No.954-SB of 2000 -6-
*** The Apex Court in Lakhan's case (supra) further observed as under :-
"This court has considered time and again the relevance/ probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reasons that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution's version differs from the version given in the dying declaration, the said declaration cannot be acted upon. (vide: Kushal Rao v. State of Bombay AIR 1958 SC 22; Rasheed Beg & Ors. v. State of Madhya Pradesh, AIR 1974 SC 332; K.R. Reddy & Anr. v. The Public Prosecutor, AIR 1976 SC 1994; State of Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617; Uka Ram v. State of Rajasthan, 2001 (2) RCR (Criminal) 416: (2001) 5 SCC 254; Babu Lal & Ors. v. State of M.P. 2004 (1) R.C.R. (Criminal) 603 : 2004 (2) Apex Criminal Appeal No.954-SB of 2000 -7- *** Criminal 348 : (2003) 12 SCC 490; Muthu Kutty & Anr. v. State, 2005 (1) R.C.R. (Criminal) 639 : 2005 (1) Apex Criminal 287 : (2005) 9 SCC 113; State of Rajasthan v.Wakteng, 2007 (3) R.C.R. (Criminal) 330 : 2007 (3) R.A.J. 480 : AIR 2007 SC 2020 and Sharda v. State of Rajasthan 2010 (1) R.C.R. (Criminal) 565 : 2010 (1) R.A.J. 46 : (2010) 2 SCC 85.)"
However, the Apex Court while making a difference between the dying declaration and the statement under Section 164 Cr.P.C. observed that in case it is recorded after a long time he/she suffers injuries and long after he/she dies cannot be termed as statement made by the deceased under Section 32 (1) of the Evidence Act. Similar observations were made in case S. Arul Raja vs. State of Tamil Nadu 2010 (4) R.A.J. 503 wherein it was observed as under :-
"31. It is trite law that for a statement to be admissible in evidence as a dying declaration, the person making the statement should no longer be alive. If the person eventually does not die after making the statement, then the same cannot be treated as a dying declaration.
32. The cited authority of the High Court in regards to the admissibility of a dying declaration, Rattan Singh v. State of Himachal Pradesh reported in 1997 (1) R.C.R. (Criminal) 550 : (1997) 4 SCC 161, in fact confirms the necessary condition of death failing which this statement will be inadmissible under the dying declaration rule.
33. Other case law also confirms this necessary condition. In Ramprasad v. State of Maharashtra, reported in 1999 (2) R.C.R. (Criminal) 819 : (1999) 5 SCC 30, this Court held :-
13. Ext. 52 is the dying declaration made by PW 1 Ramu Somani, which was recorded by a Judicial Magistrate (PW 16). Both the trial court and the High Court counted Ext. .52 as a piece of Criminal Appeal No.954-SB of 2000 -8- *** evidence. Shri R.S. Lambat, learned counsel contended that both the courts have gone wrong in treating Ext. 52 as evidence because the person who gave that statement is not dead and hence it could not fall under Section 32 of the Evidence Act, 1872. Counsel further contended that even otherwise Ext. 52 could only have been used to contradict PW 1 as provided in Section 162 of the Code of Criminal Procedure (for short, "the Code"0 as it was a statement recorded during investigation.
14. We are in full agreement with the contention of the learned counsel that Ext. 52 cannot be used as evidence under Section 32 of the Evidence Act though it was recorded as a dying declaration. At the time when PW 1 gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.
15. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact" but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is Criminal Appeal No.954-SB of 2000 -9- *** not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof."
34. In the present case, on 26.1.2005 at about 7.15 a.m. PW- 46 (Executive Magistrate/Deputy Tehsildar), on receiving a written requisition from L.G. Hospital for recording the dying declaration of A1 who was admitted to the ICU Ward of the said hospital, went there and recorded the alleged dying declaration which is Ex. P22. Ex.P 22 cannot be said to be a dying declaration and that is so on account of various reasons, which may be elaborated herein.
35. The most important of them all is that A1 did not die after making the alleged dying declaration. From the decision of this Court in the aforementioned case, it is clear that when a person who has made a statement perhaps in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act."
In any case, while going through the said statement purported to have been treated as dying declaration and the evidence of Davinder Singh Judicial Magistrate Ist Class, Bhiwani (PW1), ASI Basant Lal (PW7) and other attending circumstances of the case, the dying declaration could certainly be said to be prompted and tutored one. The deceased suffered injuries on 5.9.1998 and she did not make any such statement or levelled allegations with regard to demand of dowry or cruelty on the part of the Criminal Appeal No.954-SB of 2000 -10- *** accused till 27.10.1998. Though during this period she remained admitted in the private hospital, yet, she did not disclose this fact there to the doctors. The parents of the deceased never apprehended fault on the part of the accused during this period and it was only on 28.10.1998 when they brought her to the Civil Hospital, Bhiwani, the deceased made the statement. It was the accused who extinguished the fire, got her admitted in the private hospital and treated her for a long time to their wisdom. It has also come in evidence that the sister of the deceased is married in the same house and she is living happily and no demand was raised from her by the accused. The court has already dis-believed major part of the statement made by the deceased, then how the remaining part of it could be believed. Since the deceased remained in the custody of her parents for some days, therefore, some chances of tutoring could not be ruled out. Even the time of recording statement of Kamlesh @ Rani Ex.PA/1, according to Devinder Singh, Judicial Magistrate Ist Class, Bhiwani, one or two persons were present near the bed of Kamlesh and they were sent out only on the directions issued by him. It is admitted by ASI Basant Lal (PW7) that he did not record the statement of Kamlesh @ Rani during his investigation. He was present at the time when her statement was recorded and many other patients were also in the said ward. He has also admitted during cross examination that it had come during investigation that the accused Satvir, Hira Lal, Dharampal, Gindo and Bala were residing separately from the deceased for the last one year. He has also admitted that during his investigation, it had come to surface that the accused had tried their best to save the deceased by getting treatment in the hospital. They had also contributed blood to her.
The other circumstances which create doubt over the genuineness of this statement under Section 164 Cr.P.C. is that later on, on 13.11.1998 the deceased had given duly sworn affidavit stating that the accused were not at fault at all and she did not make any such dying declaration earlier. This statement Ex.DB has been proved by Jora Singh Kundu Advocate (DW2). As such, in the given circumstances of the case, this court could reach the following irresistible conclusions :-
Criminal Appeal No.954-SB of 2000 -11-***
1. The statement Ex.PA/1 recorded long before she had died cannot be treated as dying declaration and could be termed only as statement under Section 164 Cr.P.C. which could be used for a limited purpose.
2. The said statement could be the result of tutoring for the purpose best known to the complainant and could not be placed reliance without any corroboration from the other source.
On scrutiny of the impugned judgment, it transpires that the trial court has not taken into consideration the aforesaid evidence and the settled legal position, as such, it has been rendered as invalid warranting interference by this Court.
As a result of the aforesaid discussions, the appeal is accepted, the impugned judgment is set aside, the accused are acquitted of the charges framed against them and they are directed to be set at liberty forthwith. Bail bonds and surety bonds furnished by them stand discharged. The fine, if any deposited by them, be refunded.
August 17, 2010 (A.N. Jindal) deepak Judge