Crl.Appeal No.382-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.382-DB of 2001 Date of Decision: November 11,2009 Ved Parkash, Jamna Devi and Santosh .....Appellants v. State of Haryana. .....Respondent CORAM: HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.K.Yadav, Advocate for the appellants. Mr.S.S.Randhawa, Additional Advocate General, Haryana. ....... RAM CHAND GUPTA, J. 1. The present appeal has been filed against judgment of conviction dated 25.7.2001 and order of sentence dated 28.7.2001 passed by the Court of then Additional Sessions Judge, Rewari, vide which present appellants-accused were convicted for offences under Sections 302, 498-A read with Section 34 of the Indian Penal Code (hereinafter to be referred as `IPC') and sentenced to undergo imprisonment for life for offence under Crl.Appeal No.382-DB of 2001 -2- Section 302/34 IPC. Accused Jamna Devi and Santosh were also sentenced to pay fine of Rs.20,000/- each, failing which to further undergo rigorous imprisonment for a period of two years each, whereas Ved Parkash was sentenced to pay fine of Rs.5,000/- and, in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. All the accused were also sentenced to undergo imprisonment for a period of one year and to pay fine of Rs.1000/- each, and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months each under Section 498-A IPC. However, all the sentences were ordered to run concurrently. 2. Smt.Mamta (deceased) was daughter-in-law of Jamna Devi- accused and sister-in-law of Santosh-accused, whereas Ved Parkash- accused is her brother-in-law. She sustained about 100% burns in the house of her in-laws on 3.10.1999 at about 3.00 p.m. and as per case of prosecution she was set on fire by all the three accused in furtherance of their common intention and that they also used to harass and used to treat her with cruelty. 3. After the occurrence, Smt.Mamta (deceased) was taken to Civil Hospital, Bawal by her husband Madan Lal and however, she was referred to General Hospital, Rewari at about 4.10.p.m. for further treatment as she was having 100% burns. Smt.Mamta was then taken to General Hospital, Rewari and, however, she was referred to Post Graduate Institute of Medical Science, (hereinafter to be referred as `PGIMS') Rohtak, where she was got admitted by her husband. 4. Medico legal examination of Smt.Mamta was conducted in Crl.Appeal No.382-DB of 2001 -3- PGIMS, Rohtak, vide Ex.PE/1 in the presence of her husband Madan Lal and her mother Smt.Chanderkanta at 7.50 p.m. and she stated before the Medical Officer that she received burns by pouring of kerosene by her mother-in-law and sister-in-law at her residence at 3.00 p.m. on 3.10.1999. 5. After receipt of Ruqa Ex.PA, Jagat Raj, Assistant Sub Inspector of Police Station Bawal had visited the General Hospital Rewari, However, he was informed that the patient was referred to PGIMS Rohtak and hence, he reached PGIMS Rohtak and gave application Ex.PF to the Medical Officer and obtained his opinion Ex.PF/1 that the patient was fit to make statement and he recorded his statement Ex.PG at about 10.00 p.m., on which he made endorsement Ex.PG/1 and sent the same to the police Station for registration of FIR, on the basis of which formal FIR Ex.PG/2 was recorded at 1.30 a.m. on 4.10.1999 and the special report reached the Judicial Magistrate Ist Class, Rewari at about 10.00 a.m. on 4.10.1999. Smt.Mamta (deceased) wife of Madan Lal, aged about 24 years, Caste Chugh, resident of Mohalla Hasanpura, Bawal, got recorded her statement vide Ex.PG with Jagat Raj, ASI on 3.10.1999 at about 10.00 p.m. and the same reads as under: “I am a resident of above address. I am a house wife. I was married with Madan Lal s/o Daulat Ram, Mohalla Hasanpura, Bawal, about six years ago. Till date, I could not bear a child. Just after the marriage, my mother-in-law, sister- in-law (Nanad) and brother-in-law (Jeth) used to harass me and started taunting me since just after one year of marriage that I am Banjh (barren) and that I am unable to bear a child and that I am Badmash (characterless) and as to why I be not die. Since I could not bear a child, so they used to harass me. Today, i.e., on 3.10.1999 at about 3.00 p.m., my mother-in-law- Crl.Appeal No.382-DB of 2001 -4- Jamna Devi, sister-in-law- Santosh and brother -in-law -Ved Parkash had come to me together and my sister-in-law-Santosh and mother-in-law-Jamna Devi jointly poured kerosene oil on me and set me on fire. I was burnt and nobody tried to rescue me. Lateron I was got admitted in civil Hospital, Bawal by my husband Madan Lal and from there I was brought to Rewari and from Rewari to PGIMS Rohtak. Now you have come. I got my statement recorded and I have heard the same, which is correct.” 6. Thereafter the ASI approached learned Duty Magistrate, Rohtak, for recording the statement of Smt.Mamta. Mrs. Shalini Nagpal, the then learned Judicial Magistrate Ist Class, Rohtak-PW4, visited PGIMS Rohtak, on application of police Ex.PC, on which she passed order Ex.PC/1. Dr.Kul Bhushan was on duty. She passed orders Ex.PC/2 to obtain opinion of doctor as to whether Smt.Mamta was fit to make the statement and the doctor gave his opinion Ex.PC/3 declaring Smt. Mamta fit to make the statement. She passed another order Ex.PC/4 asking the relatives, other attendants and the police to clear the room and, thereafter she recorded the statement of Smt.Mamta on oath, which is Ex.PC/5. The statement was read over to her and she thumb marked the same, after admitting the same to be correct. The doctor also remained present throughout the time the statement of Smt.Mamta was recorded, who also certified vide Ex.PC/6 that the patient remained fit throughout the time her statement was recorded. Learned Magistrate also gave certificate Ex.PC/7 after recording the statement of Smt.Mamta. 7. In statement Ex.PC/5 Smt.Mamta(deceased) stated before learned Magistrate that occurrence had taken place at about 3.00 p.m. Crl.Appeal No.382-DB of 2001 -5- yesterday and that she was married about six years ago. She further stated that her mother-in-law and sister-in-law used to taunt her that she was characterless and as to why she be not die and that they also used to harass her as she was unable to bear a child. She further stated that her mother-in- law Smt.Jamna Devi, sister-in-law Smt.Santosh and brother-in-law Ved Parkash used to harass her and that her mother-in-law and sister-in-law set her on fire by pouring kerosene oil on her body. She further stated that her husband never used to harass her. 8. Smt.Mamta succumbed to burn injuries and hence offence under Section 302 IPC was added. Post mortem examination on the dead body of Smt.Mamta was got conducted. The accused was arrested by Bhagat Singh, SI, on 7.10.1999. After completion of the investigation, report under Section 173 Cr.P.C. was filed against all the three accused. 9. Case was committed to the Court of Sessions by the then learned Judicial Magistrate Ist Class, Rewari, vide order dated 6.12.1999, after supplying the copy of challan and accompanying documents to the accused, as required under Section 207 Cr.P.C. 10. Learned Additional Sessions Judge, Rewari, charged all the accused for offences punishable under Sections 302/498 read with Section 34 IPC, to which they did not plead guilty and claimed trial. 11. In order to substantiate the allegation against the accused the prosecution has examined as many as 14 witnesses. 12. PW1 is Dr.A.S.Dahiya, the then Medical Officer, CHC, Bawal, who examined Smt.Mamta (deceased) when she was brought to Civil Hospital, Bawal by her husband Madan Lal and who sent Ruqa Ex.PA to the Crl.Appeal No.382-DB of 2001 -6- police Station and referred her to the General Hospital, Rewari for further management as she was having 100% burns. 13. PW2 is Rajinder Singh, Draftsman, who had prepared scaled site plan Ex.PB of the place of occurrence on 18.10.1999. 14. PW3 is Charan Dass, father of deceased Smt.Mamta. He deposed that on receiving information that his daughter Smt.Mamta was burnt, he along with his wife and son had gone to Hospital Rewari and however, they came to know that his daughter was already referred to PGIMS, Rohtak and hence, they had gone to Rohtak and found that his daughter was crying with pain and that on enquiry she told that her mother- in-law Jamna Devi and sister-in-law Santosh and brother-in-law Ved Parkash had burnt her. 15. PW4 is Mrs.Shalini Nagpal, the then Chief Judicial Magistrate Ist Class, Rohtak, who recorded the statement of Smt.Mamta Ex.PC/5 on police request, as detailed above. 16. PW5 is Smt.Chanderkanta, mother of deceased, who corroborated the version of her husband Shri Charan Dass PW3. She further clarified that her daughter told them that she was set on fire by pouring kerosene oil by her mother-in-law Jamna Devi and sister-in-law Santosh, while Ved Parkash, her brother-in-law kept standing nearby. 17. PW6 is Puran Chand, photographer, who had taken photographs of the place of occurrence on police request, positives of which are Ex.P1 and P2 and negatives are Ex.P3 and P4. 18. PW7 is Jagat Raj, ASI, the Investigating Officer of this case, who first visited Civil Hospital, Rewari and when he came to know that Crl.Appeal No.382-DB of 2001 -7- Smt.Mamta was already referred to PGIMS Rohtak, he visited PGIMS Rohtak and collected copy of MLR Ex.PE/1 and Ruqa Ex.PE. He gave application Ex.PF and obtained opinion of doctor Ex.PF/1 that Mamta was fit to make the statement and thereafter recorded her statement Ex.PG, on the basis of which formal FIR was got registered. He also called Mrs.Shalini Nagpal, the then Duty Magistrate and got statement of Smt.Mamta recorded under Section 164 Cr.P.C., as detailed above. He received Ruqa Ex.PH regarding death of Smt.Mamta at about 11.15 p.m. on that day. He recorded statement of father, brother and one of the relatives of Smt.Mamta. He got conducted post mortem examination on the dead body of Smt.Mamta. He also recorded statement of mother of Smt.Mamta on 12.10.1999. 19. PW8 is Ram Swroop, Head Constable, who had recorded formal FIR Ex.PG/2 on the receipt of Memo Ex.PG with endorsement of Jagat Raj, ASI from PGIMS Rohtak and sent the special report to Illaqa Magistrate. 20. PW9 is Dr.G.N.Aggarwal, Medical Officer, Civil Hospital, Rohtak, who along with Dr.O.P.Dhania, conducted the post mortem examination on the dead body of Smt.Mamta and observed as under: “Superficial to deep burn all over the body except a part of lower abdomen and pelvis and few patches elsewhere, about 96% area of burn was seen. Normal skin shows read line separately from burn area. Singing of hair of scalp with underlying ecchymosis was seen. There was soot carbon particles seen in trachea. External burn over the mouth was there.” Crl.Appeal No.382-DB of 2001 -8- 21. He further deposed that in their opinion the cause of death was extensive ante mortem burns and their complications and that probable time that elapsed between death and post mortem was about 24 hours. He had proved carbon copy of post mortem report as Ex.PI/13 and deposed that the inquest papers Ex.PI/1 to PI/12 were also signed by him. 22. PW10 is Constable Naresh Kumar, who is a formal witness and who had tendered in evidence affidavit of his statement Ex.PJ. 23. PW11 is Constable Mangtu Ram, who had delivered special report of this case at the residence of the then learned Judicial Magistrate Ist Class, Rewari. 24. PW12 is SI Lal Singh, SHO, Police Station Sadar Rewari, who had prepared report under Section 173 Cr.P.C., after completion of the investigation of this case. 25. PW13 is Bhagat Singh, Sub Inspector, who was posted SHO, Police Station Bawal, and who had investigated this case after receiving message that Smt.Mamta had succumbed to the injuries. He had arrested all the three accused in this case on 7.10.1999. 26. PW14 is Dr.K.M.Mariya, Medical Officer, PGIMS Rohtak, who had medico-legally examined Smt.Mamta on 3.10.2000. He subsequently deposed that the patient had disclosed history of receiving burns by pouring kerosene oil by her mother-in-law and sister-in-law at her residence and that he had recorded the same in the MLR itself. He had proved carbon copy of MLR as Ex.PP. 27. Statement of all the accused in terms of Section 313 Cr.P.C. was recorded in which they denied the version of prosecution witnesses and Crl.Appeal No.382-DB of 2001 -9- claimed trial. 28. Ved Parkash accused had taken the plea that the deceased Mamta consigned herself to flames as she was frustrated lover. He had further taken the plea that at the time of occurrence he along with his brother Madan Lal was present at his shop and that he used to live separate from his brother Madan Lal and was having separate ration card. 29. Smt.Jamna Devi, mother-in-law of the deceased had also taken similar plea that Mamta committed suicide. She also took plea that she was not present at her residence and that her daugther Smt.Santosh accused alone was in the house and that she was summoned from the house of Shri Shanti Swaroop Narula,Chairman of the M.C., Bawal and that when she reached Smt.Mamta was being shifted to Hospital Bawal. 30. Smt.Santosh accused had also taken the plea that Smt.Mamta committed suicide as she was in love with somebody and that she picked up a letter, which had slipped from possession of Smt.Mamta. 31. Accused examined as many as 6 DWs in their defence. 32. DW1 is Madan Lal, husband of deceased, who deposed that on 3.10.1999 at about 2.30 p.m., he along with his brother Ved Parkash accused were present at the shop when he came to know that his wife set herself on fire and hence he reached there and noticed that his wife was crying in kitchen at first floor of the house and was saying “Mujhe Bachao, Galti Ho Gai” ( I be saved, I committed a mistake). He further deposed that he had taken his wife in a Maruti van to Civil Hospital, Bawal. He further deposed that his mother was not present in house when they reached there as she had gone to see wife of Shanti Swaroop, Chairman, who was ill. Crl.Appeal No.382-DB of 2001 -10- He further deposed that on information being given by him, his mother-in- law and brother-in-law had reached General Hospital, Rewari, and that they accompanied them to PGIMS Rohtak and that however, on the way her mother-in-law pressurized Mamta that she should implicate everybody and that however, his wife continued to say that there was no fault of anybody. He also deposed that earlier as well there was some dispute between him and his in-laws and the same was compromised vide Ex.DB. In the cross- examination he also deposed that his sister Santosh was present at the house when they reached there. 33. DW2 is Sher Singh son of Mam Chand, who deposed that his shop is situated in front of the house of the accused and that on 3.10.1999, after hearing noise from the house of Madan Lal, he had seen a girl running towards the shop of Madan Lal and thereafter, Madan Lal and Ved Parkash reached there. They had taken Smt.Mamta to Civil Hospital, Bawal. He deposed that on her enquiry Smt.Mamta told him that she had committed a mistake. He also deposed that on the way to Rohtak, mother of Mamta was asking her that she should implicate her in-laws. 34. DW3 is Vijay Rustogi, Handwriting and Finger Print Expert, who deposed that he had compared disputed thumb impression on compromise Ex.DB with writing of Mamta taken from letters Ex.DC and from red diary Ex.DD and that in his opinion, the disputed signature on Compromise Ex.DB is signed by one and the same person Mamta, who had written the writing Ex.DC and DD. 35. DW4 is Naresh Kumar Chugh son of Shri Radha Krishan Chugh, in whose presence compromise Ex.DB was effected between parents Crl.Appeal No.382-DB of 2001 -11- of Mamta and her in-laws. 36. DW5 is Manohar Lal son of Bodh Ram, another neighbour of the accused. He deposed that he had seen sister of Madan Lal weeping in front of her house. He also deposed that on her enquiry Mamta informed him that she had committed a mistake. 37. DW6 is Shanti Swaroop son of Shri Moti Ram, who deposed that on 3.10.1999, Smt.Jamna Devi was present in his house from 1.30 p.m. to 3.00 p.m. 38. Learned trial Court convicted and sentenced the accused aforementioned against which the present appeal has been filed. 39. We have heard learned counsel for the accused, learned Additional Advocate General, Haryana, and have gone through the whole record carefully. 40. It may be mentioned, at the very outset, that we have been informed that one of the accused, namely, Smt.Jamna Devi has already expired, hence, appeal filed on her behalf stands abated. 41. It has been argued by learned counsel for the appellants- accused that case of prosecution is based on dying declaration of the deceased and that however, dying declaration in this case cannot be believed as there are discrepancies in the different dying declarations and that the deceased was not mentally sound to make the statement as she had received 100% burns. He has argued that dying declaration is not a deposition in Court and that it is neither made on oath nor in the presence of accused nor its credence is tested by cross-examination and, hence, dying declaration should be subjected to close scrutiny. It has been argued that Crl.Appeal No.382-DB of 2001 -12- Smt.Mamta died just after 15 minutes of the alleged dying declaration being recorded by the Magistrate and hence, it cannot be said that she was mentally sound to make the statement. It is further contended that in the dying declaration recorded by the ASI, she named her brother-in-law, Ved Parkash, whereas she did not name him before the Medical Officer and before the Magistrate. It is further contended that in her statement before the Magistrate Smt.Mamta gave date and time of occurrence as yesterday whereas the occurrence had taken place on the same day. It has further been contended that the dying declaration was the result of tutoring by mother of Smt.Mamta as she accompanied her from Rewari to Rohtak and that in fact Smt.Mamta committed suicide, as some letter written by her to her lover was found by her sister-in-law. He has placed reliance upon Dandu Lakshmi Reddi vs. State of A.P. 1999 (3) RCR (Criminal) 764. 42. He has further argued that so far as accused Ved Parkash is concerned, no role has been attributed to him by deceased and that merely because he was also present at the time of occurrence, it cannot be said that he shared the common intention with his co-accused to burn Smt.Mamta. 43. On this point he has placed reliance upon Suresh and another vs. State of U.P. 2001 (2) AIJ (SC) 160 and Mithu Singh vs. State of Punjab AIR 2001 Supreme Court 1929. 44. On the other hand, it has been argued by learned Additional Advocate General, Haryana, that all the three dying declarations are consistent so far as factum of setting the deceased Smt.Mamta on fire by Smt.Jamna Devi and Smt.Santosh is concerned and there is no material discrepancy in the three dying declarations. It is further contended that Crl.Appeal No.382-DB of 2001 -13- mother of Smt.Mamta did not accompany her to PGIMS Rohtak and rather she along with her husband and son had directly reached Rohtak and hence, there was no question of tutoring of Mamta by her mother. It is further contended that dying declaration of Smt.Mamta is believable one as the same was given by her in the presence of her husband and she did not implicate her husband or any other member of the family. It is further contended that it was by slip of tongue that Smt.Mamta stated before the Magistrate that occurrence had taken place yesterday at 3.00 p.m., as admittedly the occurrence had taken place on 3.10.1999 at 3.00 p.m. It is further contended that husband of deceased is deposing falsely just to save his relatives after the death of his wife. Hence, it is argued that no reliance can be placed upon his testimony and other defence witnesses as no such version was given by husband of deceased to the police or to some other higher authorities after the occurrence. 45. In recent judgment rendered in Jaishree Anant Khandekar vs. State of Maharastra 2009 (3) RCR (Criminal) 765, Hon'ble Apex Court reiterated the principles for accepting the dying declaration under Section 32 of the Indian Evidence Act. Relevant paragraph of the same reads as under: “The judicially evolved rules of caution for acceptance of dying declaration have been stated by this Court in Paniben (Smt.) (supra), and in para Nos.18 and 19 of the said report, this Court has formulated several principles for accepting dying declaration, which have been laid down in various judgments of this Court in the last few decades. The principles stated in Paniben (Smt.) (Supra) have been again repeated by this Court in Shakuntala (Smt.) vs. State of Crl.Appeal No.382-DB of 2001 -14- Haryana 2007 (3) RCR (Criminal) 925: 2007 (4) RAJ 216: (2007) 10 SCC 168. The said principles are so salutary and cardinal in nature that they deserve to be reiterated and this Court does so herein below: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P., (1976(3) SCC 104) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar, 1985 (1) RCR (Criminal) 600 (SC). (iii) 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 had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K.Ramachandra Reddy v. Public Prosecutor (1976 (3) SCC 618). (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. (1974 (4) SCC 264). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., (1981 Supp. SCC 25). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P., (1981 (2) SCC Crl.Appeal No.382-DB of 2001 -15- 654) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu, (1980 Supp. SCC 455). (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar, (1980 Supp. SCC 769)) (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P., (1988 Supp.SCC 152) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, (1989(3) SCC 390) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held