Punjab-Haryana High Court
Vikram And Others vs State Of Haryana on 19 April, 2012
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 780-DB OF 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: April 19, 2012
Parties Name
Vikram and others
...APPELLANTS.
VERSUS
State of Haryana
...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Ms. Aditi Girdhar, Advocate, amicus curiae, for the appellants.
Mr. Pardeep Singh Punia, Addl. AG, Haryana
Jasbir Singh, J.
JUDGMENT
Smt. Poonam, aged about 20 years, died of the burn injuries, which she received in her matrimonial house on October 18, 1999. Appellant No. 1 (A-1) is her husband, appellants No. 2 and 3 (A-2 and A-3) are her father-in-law and mother-in-law respectively. In this appeal, the above accused have laid challenge to a judgment dated September 27, 2002, convicting them for commission of offences punishable under Sections 498- A and 304-B IPC. They have further challenged to an order dated September 30, 2002, vide which for commission of an offence under Section 498-A IPC, all the three were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- each. On the above date, they were also sentenced to undergo imprisonment for CRIMINAL APPEAL NO. 780-DB OF 2002 -2- life each for commission of an offence under Section 304-B IPC. Both the sentences were ordered to run concurrently.
Marriage between A-1 and the deceased was solemnised on March 8, 1997. She died on October 21, 1999, in PGIMS, Rohtak. Out of the wed-lock, no child was born. As per above facts, death has occurred within less than 1 ½ year from the date of Marriage.
It was an allegation against the appellants that they have subjected the deceased to cruelty and harassment with a view to force her to meet their unlawful demand for dowry. It started from the date of marriage and continued upto the date she received the burn injuries, which resulted into her death.
Smt. Poonam (deceased), after receipt of the burn injuries, was taken to PGIMS, Rohtak, where she made a statement Ex. PG/3 on October 20, 1999, stating that she was put to fire by the above accused on October 18, 1999. Her statement was recorded by PW9 Shri Bhupinder Nath, JMIC, Rohtak. Ruqqa Ex. PF/1 was sent to the Police Station, on the basis of which an FIR Ex. PE/1 was registered against the appellants on October 20, 1999, at 4.10 PM in Police Station Ganaur, district Sonepat.
The trial Judge has noted the following facts regarding case of the prosecution:
"Prosecution case is that the marriage of Poonam d/o Shri Daya Nand, resident of village Balla , district Karnal was solemnized with Vikram son of Harpal Singh and Smt. Darshana residents of village Bighan on March 8, 1997. After solemnization of the marriage, Poonam started living with her husband Vikram in his house situated at village Bhagan jointly with his parents. Vikram, his father Harpal and Smt. Darshana expressed their CRIMINAL APPEAL NO. 780-DB OF 2002 -3- unhappiness to Poonam for not bringing adequate dowry. They used to taunt her by saying that Vikram was the only son of his parents and she did not bring sufficient dowry. Rajesh brother of Poonam was blessed with a son. Vikram, Harpal and Smt. Darshna asked Poonam to bring a refrigerator when she went to pay a visit to the house of her parents on the occasion of birth of a son to his brother. Parents and brother of Poonam were unable to meet the demand of the accused persons for refrigerator. Poonam was not taken back by Vikram to his house and she had to stay with her parents for a period of 10 months. Thereafter, a panchayat was convened and Vikram was persuaded to take Poonam back to his house. A few days after her return to their house, the accused persons again started harassing Poonam to coerce her to bring a refrigerator and a wall clock. Poonam returned to the house of her parents. Again a Panchayat was convened at Panipat. Accused persons gave an assurance before that Panchayat that they shall not harass Poonam again. Poonam was, therefore, sent back to the house of Vikram. A few days after that Poonam suffered 100 per cent burn injuries in the house of accused persons. She was taken to Civil Hospital, Sonepat on 18.10.99 where she was medico- legally examined by Dr. C.P. Arora. Since Poonam had suffered extensive burn injuries and her condition was serious, she was referred to PGIMS, Rohtak by Dr. C.P. Arora."
It has come on record that after receipt of intimation from Dr. C.P.Arora (PW7), ASI Baljeet Singh (PW13) went to the Hospital, where he was told that the patient has been shifted to PGIMS at Rohtak. He went there, however, Poonam was declared unfit to make a statement. The Investigating Officer visited PGIMS, Rohtak again on October 20, 1999 at 8.30 AM. On an application Ex. PG/6 made by him, Dr. Atul Bhardwaj (PW10) declared the patient fit to make statement. A request was made to CRIMINAL APPEAL NO. 780-DB OF 2002 -4- Shri Bhupinder Nath, JMIC, Rohtak, (PW9) to record her statement, which he did on October 20, 1999, on the basis of which criminal proceedings were initiated against the appellants. The Investigating Officer thereafter went to the house of the appellants, got prepared a rough site plan of the place of occurrence with correct marginal notes. He also recorded statements of the witnesses and took into his possession some burnt articles. Smt. Poonam died on October 21, 1999. Post-mortem on the dead body was conducted by Dr. Sarah Aggarwal (PW12) on October 22, 1999. It was a case of receipt of 100% burn injuries.
On completion of investigation, final report was put in the Court. Copies of the documents were supplied to the appellants - accused as per norms. Case was committed to the competent Court for trial. They were charge-sheeted for commission of above offences, vide order dated February 12, 2000, to which they pleaded not guilty and claimed trial. The prosecution examined 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. A-1 further deposed as under:
"Poonam set her ablaze herself after bolting the store from inside. I was knocking the door to open the gate of the store. At that time, Dilbagh and Mukesh also came there and they extinguished the fire and Poonam told me, Dilbagh and Mukesh that she herself has poured kerosene on herself. Darshana and Harpal were not present in the house at that time. I tried to extinguish the fire and I immediately took her to the hospital. I CRIMINAL APPEAL NO. 780-DB OF 2002 -5- am innocent and there was no demand of dowry from our side and I am not at fault at all."
Similar defence was also taken by his co-accused. They also led evidence in defence. The trial Judge, on appraisal of evidence, found them guilty and they were convicted and sentenced as found mentioned in earlier part of this order.
Counsel for the appellants has vehemently contended that it was a case of suicide by the deceased. She poured kerosene oil on her body and put her to fire. The fire was extinguished by the appellants and then she was shifted to Government Hospital by them. In the process, injuries were also received by A-1 at his hands. Counsel further argued that except the dying declaration made by the deceased Ex. PG/3, there is no other evidence on record to prove that the offence was committed by the appellants as alleged. Before recording her statement, deceased was tutored by her brother to falsely implicate A-1 to A-3. There is no evidence on record to show that for bringing less dowry, the deceased was ever mal-treated by the appellants. The matter was never reported to the respectables of the village or to the police before the alleged occurrence. She further argued that uncorroborated statement made by the deceased cannot be made basis for conviction of the appellants. Regarding demand of dowry, statement made by brother of the deceased Rajesh Kumar (PW11) does not inspire any confidence. This witness has never reported fact regarding demand of dowry to any of his relations. She prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellants be acquitted of the charge framed against them.
Prayer made has vehemently been opposed by the State CRIMINAL APPEAL NO. 780-DB OF 2002 -6- counsel. He, by making reference to the statements made by the deceased and deposition made by Bhupinder Nath, JMIC (PW9) and Dr. Atul Bhardwaj (PW10), argued that the statement made by the deceased was voluntary and free from any pressure when recorded. No relation was allowed to be present near to the deceased. He further argued that the death has occurred within about 1½ year of the marriage. Burn injuries were received by the deceased in her matrimonial house. She was being maltreated to bring more dowry. To say so, reliance was placed upon the statement made by PW11 Rajesh Kumar brother of the deceased and letters of the deceased Ex. P1 and P2, which she wrote to her parents stating her sufferings at the hands of the appellants. He prayed that the appeal having no substance be dismissed.
It is an admitted fact on record that marriage between the deceased and A-1 was solemnised on March 8, 1997. She received burn injuries in her matrimonial house on October 18, 1999, and died on October 21, 1999. Death has occurred within 7 years of the date of marriage and it was unnatural.
There is sufficient evidence on record to say that the deceased was subjected to cruelty and harassment by the appellants. Letters Ex. P-1 and P-2, written by the deceased to her mother clearly indicate in that regard. Those letters were proved on record by PW6 Birmati Devi, Teacher of the deceased, who was conversant with her writing. Not only as above, PW11 Rajesh Kumar, brother of the deceased, has also deposed in no uncertain terms regarding demand of dowry by the appellants. He has deposed in Court that after marriage, the appellants raised a demand for CRIMINAL APPEAL NO. 780-DB OF 2002 -7- more dowry. When that was not met, A-1 left the deceased at her parental house, where she stayed for about 10 months. Thereafter, a Panchayat was convened and under pressure of the respectables, deceased was taken by him to her matrimonial house. Highhandedness of the appellants did not stop. Again a Panchayat was convened. Despite lengthy cross-examination, the defence has failed to shatter testimony of this witness.
The prosecution case solely rests upon statement Ex. PG/3 made by the deceased. Her statement was recorded by a Magistrate on a request made by the Investigating Officer. Before recording her statement on October 20, 1999, Investigating Officer ASI Baljeet Singh (PW13) went to PGIMS at Rohtak. Dr. Atul Bhardwaj told him that the patient was fit to make the statement. The Investigating Officer then presented an application before Shri Bhupinder Nath, JMIC, (PW9) at his house with a request that statement of the deceased be recorded. On asking of the above witness, Dr. Atul Bhardwaj (PW10) wrote on the application that the patient was fit to make the statement at 9.50 AM on October 20, 1999. Thereafter, statement of the deceased was recorded, translated version of which reads thus:
"Statement of Poonam wife of Vikram, aged 20 years, housewife, resident of Bhagwan, under Section 164 Cr.P.C.
Q: What is your name?
Ans: My name is Poonam.
Q Do you want to give the statement without any pressure?
Ans: Yes.
Q. What do you want to State?
Ans (Stated) I suffered burn injuries day before yesterday. It was Sunday. I was in the house of my husband. At that time, my mother-in-law Smt. Darshna, father-in-law Harpal Singh, my husband Vikram and a little girl Sweety aged 4/ 4 ½ years CRIMINAL APPEAL NO. 780-DB OF 2002 -8- were present in the house. It was 7.30 p.m. My mother-in-law was cooking meals. I went on the roof of the house for removing clothes by chance. I was having menstruation. I told my husband that I was having severe pain. He did not listen to me and asked forcibly to do the work. He told me to take over the work of cooking meals from his mother. He did not listen to my pleadings and started beating me. I came down stairs. My nose pin has been lost in the room on the first floor. I again went up stairs for searching the nose pin. I could not trace it. After that my husband dragged me down stairs. Then mother and son poured kerosene on me. My father-in-law set me ablze. What happened after that I do not know because I became unconscious. I do not want to say anything further. ( Further stated) they were greedy persons from the very beginning. They compelled me to bring a wall clock. When my brother was blessed with a son, they compelled me to bring a refrigerator. I had to live in the house of my parents for 10 months for their inability to give a refrigerator. My marriage was solemnized on March 8, 1997. I do not want to say any further. I am matriculate. I have heard my statement read over to me which is correct."
After recording above statement, a certificate was given by Dr. Ishwar Singh that the patient was unable to put signatures as both hands were burnt. Similar endorsement was made by Dr. Atul Bhardwaj. PW9 Shri Bhupinder Nath, Judicial Magistrate Ist Class, Rohtak, also gave a certificate Ex. PG/4, which reads thus:
"It is certified that it is true and correct version of Smt. Poonam w/o Vikram Singh and nothing has been added and deleted therein, which was recorded in the presence of attending doctor. Statement was given by her without any pressure. It was read over to her who although due to burn (certificate of attending doctor to this effect attached) could not put her signature CRIMINAL APPEAL NO. 780-DB OF 2002 -9- thereon. Copy of it be given to Investigating Officer and be sealed and sent to concerned learned Illaqa Magistrate."
The testimony of PW9 Bhupinder Nath, Judicial Magistrate Ist Class, could not be shattered during cross-examination. This witness has categorically stated that the deceased made the statement of her free will. She was not under any pressure.
As per law, dying declaration, if trustworthy and proved on record, conviction can be based upon it without any further corroboration. It is true that to know authenticity of the statement (dying declaration) , veracity of that statement cannot be subjected to cross-examination. In view of above, to know truthfulness of the statement /dying declaration, the Court is supposed to carefully analyse the same and also the mode and manner of its recording. It is also to be seen as to whether maker was in a fit state of mind or not. We have analysed statement of the deceased Ex. PG/3 in the light of above principles.
Their Lordships of the Supreme Court in Smt. Laxmi v. Om Parkash and others, 2001(3) RCR (Criminal) 358, have discussed the importance of dying declaration during trial and observed as under:
"The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the CRIMINAL APPEAL NO. 780-DB OF 2002 -10- maker of the dying declaration was present in the Court, making a statement stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction."
In the present case, as has been discussed in earlier part of this order, statement made by deceased Smt. Poonam inspires confidence. She was very clear when stating that kerosene oil was poured upon her by A-1 and A-3 and she was put on fire by A-2. Corroboration to her statement is also coming out from the contents of the letters Ex. P1 and P2 written by her, to her parents wherein she has disclosed regarding her maltreatment by the appellants to bring more dowry articles. It is a case, in which the dying declaration made by the deceased coupled with other facts can be made basis to convict the appellant - accused.
Their Lordships of the Supreme Court in Sher Singh and another v. State of Punjab, (2008) 4 Supreme Court Cases 265, have opined that "acceptability of a dying declaration is greater because the declaration is made in extremity when the party is at the verge of death. One rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of dying declaration." It was further observed that the Courts are required to analyse CRIMINAL APPEAL NO. 780-DB OF 2002 -11- the dying declaration in a careful manner as the accused has no power to cross-examine the maker of the statement and if the statement is truthful, the same can be relied upon to convict an accused. Minor technicalities with regard to opinion of the doctor etc. are to be ignored.
In Bijoy Das v. State of West Bengal, (2008) 4 Supreme Court Cases 511, their lordships of the Supreme Court has opined that there was no reason as to why the doctor or the other witnesses should make a false statement about the dying declaration especially when there is no allegation of enmity between the accused and those witnesses (Para 10).
Similarly, in the case of Narain Singh v. State of Haryana, AIR 2004 Supreme Court 1616, after discussing the entire case law on the subject, it was opined that "if a dying declaration is found to be reliable, then there is no need of any corroboration by any witness and conviction can be sustained on its basis alone. Merely because statement of the deceased was not recorded before a Magistrate is no ground to discard the dying declaration made by her in view of facts mentioned above."
Their Lordships of the Supreme Court in Pores Yadav and others v. State of Bihar, (1999) 2 Supreme Court Cases 126 and in Mange Ram and another v. State, Delhi Administration, 1998 Supreme Court Cases (Criminal) 909, have justified reliance of the Courts on dying declaration made by the deceased to the Investigating Officer, as it was found to be reliable and trust-worthy.
The statement of the deceased was recorded in a proper manner. Upon request made by ASI Baljeet Singh (PW13), Shri Bhupinder Nath (PW9), Judicial Magistrate Ist Class, came to the hospital and verified CRIMINAL APPEAL NO. 780-DB OF 2002 -12- regarding fitness of the patient to make a statement. PW10 Dr. Atul Bhardwaj gave a certificate that the deceased was fit to make a statement, whereupon her statement was recorded in the presence of the doctors and as per certificate given by PW9 when making the statement deceased was not under pressure. The statement was read over to her. However, she could not put thumb-impression as her hands were burnt.
In view of the above facts, this Court feels that to convict the appellant - accused, reliance can be placed upon the statement made by the deceased Ex. PG/3. The defence version put on record by the appellants does not inspire any confidence. They have made no attempt either to approach the higher authorities or to the Court stating their grievance. No respectable of the village was brought in the witness -box. DW1 has appeared in their favour. Testimony of this witness cannot be relied upon because DW1 was cited as a prosecution witness. He was not examined having been won over and then this witness appeared in favour of the appellants. Otherwise also, there is nothing on record to show that the deceased committed suicide. As deposed by Dr. C.P.Arora, who attended the deceased on October 18, 1999, it was a case of 100% burn injuries. It was also so stated by Dr. Atul Bhardwaj (PW10). PW12 Dr. Sarah Aggarwal, who conducted post-mortem on the dead body, has stated that the above burns were the cause of death and the injuries were ante-mortem in nature.
Not only as above, the deceased has suffered the burn injuries when living with the appellants in their house. In such a situation, it is for the appellants to disclose the mode and manner in which burn injuries were CRIMINAL APPEAL NO. 780-DB OF 2002 -13- received by her. The plea of suicide by the deceased, as taken up by the appellants, does not inspire confidence. They have failed to discharge burden as imposed upon them under Section 106 of the Indian Evidence Act, 1872. The process of investigation is also very fair in this case. The Investigating Officer (PW13) has taken all care and precaution when getting statement of the deceased recorded before a Magistrate. This witness has also collected evidence in a very scientific manner from the spot. The trial Judge has analysed the facts and evidence on record in a very proper manner.
Counsel for the appellants has failed to indicate any misreading of evidence on the part of the Court below, which may necessitate any interference in this appeal. Dismissed.
(Jasbir Singh) Judge (Sabina) Judge April 19, 2012 DKC/Ashwani