IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1891-SB of 2002 Date of decision: 28th July, 2010 Manjit Singh and others … Appellants Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Tarannum Cheema, Advocate for the appellants. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the respondent-State. KANWALJIT SINGH AHLUWALIA, J. Manjit Singh-husband, Kulwant Singh-uncle (chacha), Ravinder Kaur-aunt (chachi) along with Gurdip Singh-a neighbour (friend) of husband, were nominated as accused in case FIR No. 32 dated 28.07.1994 registered at Police Station Khamanon. They were tried by the Court of Additional Sessions Judge, Fatehgarh Sahib, who vide his impugned judgment dated 31st October, 2002, acquitted Gurdip Singh accused, but held the other three guilty of an offence punishable under Section 304-B read with Section 34 IPC. Vide a separate order of even date, Manjit Singh was sentenced to undergo rigorous imprisonment for a period of ten years, whereas, Kulwant Singh and Ravinder Kaur, who were uncle and aunt of Manjit Singh, were sentenced to undergo rigorous imprisonment for a period of seven years. All the three accused were Criminal Appeal No. 1891-SB of 2002 further ordered to pay Rs.3000/- each as fine and in default of payment of fine sentence of three months rigorous imprisonment was imposed. Aggrieved against the same, the three convicts have filed the present appeal. On 28th July, 1994, HC Piara Singh PW-3, having learnt that Balwinder Kaur wife of Manjit Singh, resident of village Begowal, Tehsil Doraha, District Ludhiana, was admitted in the PGIMER Chandigarh as a case of poisoning, moved an application Ex.PA to the Executive Magistrate, Chandigarh, requesting that the statement of Balwinder Kaur be recorded. Ashwani Kumar, Executive Magistrate, U.T. Chandigarh, on receipt of the application, reached PGIMER Chandigarh and on the same day, i.e. 28th July, 1994 at about 12.30 p.m. sought opinion of the Doctor vide Ex.PA/1 regarding fitness of Balwinder Kaur. Dr.Vara Prasad, on the same day at about 12.40 p.m. declared the patient fit to make statement. The Executive Magistrate, having satisfied himself that Balwinder Kaur was conscious to make statement, recorded her statement Ex.PA/3, which not only constituted a dying declaration but on the basis of the same FIR Ex.PW-7/B was registered. Since much of the arguments have been advanced towards the dying declaration, its admissibility and competence of the deceased to make statement, it will be apposite here to reproduce the translation of the FIR as noticed by the trial Judge in para 2 of the impugned judgment, which reads as under: “This is my 6th year of marriage and I do not have any issue. I reside with my husband and with ‘Chacha’ (uncle) and ‘Chachi’ (aunt). My uncle Kulwant and aunt Ravinder Kaur asked me to bring Rs.10,000/- from my parents and in pursuance thereof I brought Rs.5000/- from my parents and handed over the same to them, but my uncle kept on hurling abuses to me and my husband. My aunt gave me beatings. I returned to my parental house. However, my mother again 2 Criminal Appeal No. 1891-SB of 2002 left me at my matrimonial home. I was given severe beatings by my husband and my aunt about 5 months back. I had been given beatings several times even prior to that and had been given beatings for about 4-5 years. I received serious injuries just above my eye and the said injury had to be stitched. At that time I was also threatened and told that I should tell everybody that the said injury had been received by the handle of the hand pump. Similarly, I had come back to my parental home about a month earlier. My husband along with Gurdeep Singh who is son of our neighbour had come to forcibly take me away, but due to sudden presence of Palo from the neighbourhood my husband and Gurdeep went away. My husband used to level lowly allegations against me. As such on being fed up I have consumed a tablet which is used in preserving wheat. I have consumed the said tablet at my parental home because my husband used to come to me and harass me. I have heard my statement which is correct.” It has come in the evidence that on 28th July, 1994, ASI Nasib Singh PW-7 was posted as Assistant Sub Inspector at Police Station Kheri Naud Singh. He received statement Ex.PA/3 of Balwinder Kaur, bearing endorsement Ex.PW-7/A and on the basis of the same, FIR Ex.PW-7/B was registered by ASI Karam Singh, whose signatures were identified by ASI Nasib Singh PW-7. The recording of statement of Balwinder Kaur, which has been termed as a dying declaration, commenced at 12.45 p.m. and was concluded at 1.15 a.m. at PGIMER Emergency Ward on the night intervening 28th and 29th July, 1994. Balwinder Kaur was got admitted in the hospital by her father Amarjit Singh. She expired in the Emergency Ward of PGIMER on 29th July, 1994 at 1.25 a.m. The post-mortem Ex.PL of Balwinder Kaur was conducted at General Hospital, Sector 16, Chandigarh on 29th July, 1994 at 4.30 p.m. 3 Criminal Appeal No. 1891-SB of 2002 After conducting of the post-mortem, opinion regarding cause of death was deferred to await report of the Chemical Examiner. A perusal of report of the Chemical Examiner Ex.PW-7/J reveals that Aluminum Phasphide, a pesticide, was detected in the viscera of the deceased Balwinder Kaur. After the registration of FIR, a case was registered, the same was investigated, a report under Section 173 Cr.P.C. was submitted, the accused were committed to the Court of Sessions, Fatehgarh Sahib and the trial was entrusted to the Court of Additional Sessions Judge, Fatehgarh Sahib, who charged all the four accused that on 28th July, 1994 at village Dhundan, Kulwant Singh being uncle of Manjit Singh, Manjit Singh being husband of Balwinder Kaur, Ravinder Kaur being aunt of Manjit Singh and Gurdip Singh being a friend of Manjit Singh, had all subjected Balwinder Kaur to cruelty and harassment in connection with the demand of dowry, due to which Balwinder Kaur died an unnatural death, as a result of consumption of poison and she was subjected to cruelty and harassment soon before her death, in furtherance of common intention of all the four accused. All the accused denied the charge under Section 304-B read with Section 34 IPC. It will be pertinent to mention here that when the charges were framed on 31st January, 1995, due to some typographical error, name of Ravinder Kaur was mentioned in the body of the charge as Narinder Kaur. A correction was carried out and a separate charge-sheet was drawn on 30th July, 2002. Since the accused had pleaded not guilty and claimed trial, the trial commenced against the accused. Prosecution examined Jaswant Kaur, mother of deceased Balwinder Kaur as PW-1. She stated that deceased Balwinder Kaur was married with Manjit Singh six years prior to the occurrence and there was no child from the wedlock of the parties. She further stated that Kulwant 4 Criminal Appeal No. 1891-SB of 2002 Singh, Manjit Singh and Ravinder Kaur demanded Rs.10,000/- as dowry and caused beatings. As the financial condition of parents of deceased Balwinder Kaur was not good, they only parted with Rs.5000/-. Thereafter, several times, beatings were given by the accused and she was forced to take her daughter to the parental house. This witness also stated that one month prior to the occurrence Gurdip Singh and Manjit Singh came to the house of the witness to take away her daughter forcibly, but on hue and cry raised by her, the accused left her house. Father of deceased Balwinder Kaur was residing in Germany and just two days prior to the occurrence he had come to his house. The following line of the cross-examination is required to be noticed: “Accused were harassing her as she could not produce any child and failed to bring more money.” Deceased Balwinder Kaur consumed poisonous tablets with a glass of water in her parental home, when her mother was working in the kitchen. It is stated that her father enquired in the presence of this witness as to why she had consumed poison, upon which deceased Balwinder Kaur replied that she was fed-up from her in-laws. It was further stated that parents of Manjit Singh accused were alive and his father was doing agricultural work. Jaspal Kaur alias Pal Kaur, a neighbour of Jaswant Kaur PW-1, was examined as PW-2. She also stated that deceased Balwinder Kaur was married with Manjit Singh six years ago and that there was no child from the wedlock of the parties. This witness, in her examination in chief, stated as under: “In laws of Balwinder Kaur were ill-treating her as they were not satisfied – again said demanding money, and on the ground that she could not produce any child.” 5 Criminal Appeal No. 1891-SB of 2002 This witness further stated that on her advice, an amount of Rs.5000/- was given by Jaswant Kaur PW-1 to her daughter deceased Balwinder Kaur but the accused were demanding Rs.10,000/-. Another line in the examination in chief of this witness, which assumes importance and is required to be reproduced, is: “Accused – again said Balwinder Kaur was demanding Rs.10,000/- as her husband, her mother in law and father in law were demanding Rs.10,000/-.” Jaspal Kaur alias Pal Kaur PW-2 further stated that when the deceased Balwinder Kaur was left in her parental house, Manjit Singh and Gurdip Singh came there to forcibly take her, but on the Raula (noise) being raised, this witness went there and the accused ran away. In cross-examination, this witness stated as under: “Balwinder Kaur used to reside with her mother 7 months prior to her death.” As stated earlier, HC Piara Singh PW-3 filed an application before the Executive Magistrate, on the basis of which dying declaration was recorded. Nettar Singh Patwari, who appeared as PW-4, had prepared the scaled site plan Ex.PB of the spot. Ashwani Kumar, Executive Magistrate PW-5, as mentioned earlier, had recorded the dying declaration. Kashmir Singh PW-6 tendered his affidavit Ex.PC. The dead body of Balwinder Kaur was entrusted to him on 29th July, 1994 at PGIMER and he took the same to General Hospital, Sector 16, Chandigarh. On 1st August, 1994, this witness had taken the viscera from the Police Station to the office of Chemical Examiner at Patiala. 6 Criminal Appeal No. 1891-SB of 2002 ASI Nasib Singh PW-7 had taken the statement of the deceased Balwinder Kaur, which was recorded by the Executive Magistrate, to the Police Station, on the basis of which FIR was registered. He investigated the case and further deposed that after completion of the investigation, a report under Section 173 Cr.P.C. was presented by SHO Gurmail Singh, whose signatures he had identified in the Court. MHC Hans Raj PW-8 stated that on 29th July, 1994, ASI Nasib Singh had deposited the viscera with him in the Police Malkhana. SPO Bahadur Singh PW-9 tendered his affidavit Ex.PW-9/A to prove link evidence. Thereafter, prosecution closed its evidence and statements of the accused were recorded under Section 313 Cr.P.C. All incriminating circumstances were put to them but they denied the same. Accused Manjit Singh gave the following version: “My own parents i.e. father and mother are alive and therefore the question of any demand or any beatings by my uncle and aunt does not arise. During the days of occurrence, I was living separate from my parents and doing the work of milk selling. My father in law Amarjit Singh and his elder son are living in Germany since before the occurrence. My mother in law Jaswant Kaur and her small (young) son who used to live in their house at village Dhunda, my in-laws are quite rich people and maintaining better position than us and due to this my wife was not liking to stay with me at my village. She normally used to stay with her mother and younger brother. Due to reason also that she could not produce any child. Our marriage had taken place about 7 ½ years before the death of Balwinder Kaur. I have been coming and requesting my mother-in-law and my wife to take her to my house but my mother-in-law and my wife were not willing to stay with me. Through my common relations Surjit Singh and Malkiat Singh, I tried to contact my 7 Criminal Appeal No. 1891-SB of 2002 father-in-law in Germany who promised that he would come to his village and send Balwinder Kaur with me to my house. Accordingly, my father-in-law Amarjit Singh came to his house at village Dhunda. He was informed about the behaviour of the wife and daughter by Surjit Singh and Malkeet Singh our common relations, due to which there was quarrel between Amarjit Singh, Balwinder Kaur and Jaswant Kaur and Amarjit Singh gave beatings to Balwinder Kaur and wife Jaswant Kaur due to which Balwinder Kaur might have taken some poisonous substance. Because the quarrel has taken place in their house due to the non-joining of Balwinder Kaur to her matrimonial house. Amarjit Singh and his wife cooked up this false story. Kulwant Singh and his wife Ravinder Kaur have been falsely implicated because Ravinder Kaur my aunt is the daughter of the sister of the father of Amarjit Singh and they have been also requesting Amarjit Singh and Jaswant Kaur to send Balwinder Kaur with me. Gurdeep Singh has no concern or connection with our house. We are innocent and have been falsely implicated.” Kulwant Singh and Ravinder Kaur also took the similar stand. The entire prosecution evidence consists of dying declaration Ex.PA/3 made by deceased Balwinder Kaur wife of accused Manjit Singh and the statements of Jaswant Kaur PW-1 mother-in-law of Manjit Singh and Jaspal Kaur alias Pal Kaur PW-2, a neighbour of Jaswant Kaur PW- 1. Taking this evidence into consideration, the following facts have emerged: (i) The deceased had returned from her matrimonial home to her parental home about seven months before the occurrence; 8 Criminal Appeal No. 1891-SB of 2002 (ii) Manjit Singh husband, accompanied by his friend Gurdip Singh, had come to the house of his in-laws about one month before the occurrence to take away his wife, deceased Balwinder Kaur forcibly; (iii) The accused had demanded Rs.10,000/-, but only Rs.5000/- were given and deceased Balwinder Kaur was given beatings by her husband and aunt. She was given beatings 4/5 years before the occurrence also. (iv) Jaswant Kaur PW-1 and Jaspal Kaur alias Pal Kaur PW-2 have stated that for not giving birth to child and for demand of money the deceased Balwinder Kaur was also harassed. (v) In the dying declaration, it was stated that husband used to level lowly allegations (ghatia ilzam). (vi) Jaswant Kaur PW-1 had leveled general/vague allegations against the in-laws of deceased Balwinder Kaur. It has come in the evidence that parents of the accused Manjit Singh were alive. Jaspal Kaur alias Pal Kaur PW-2 stated that the in-laws used to harass Balwinder Kaur. From the above evidence, which has come on record, it can be safely said that since the deceased was living with her parents in their house for the last seven years, there was no demand of dowry soon before the death. Rather, one month before the occurrence, accused husband Manjit Singh along with his friend had gone to the house of his in-laws to bring his wife, which has been termed as an attempt to forcibly take away the wife from the house of in-laws. According to Jaswant Kaur PW-1 and Jaspal Kaur alias Pal Kaur PW-2, the marriage was six years old and one of the prime reasons for causing harassment was that deceased Balwinder Kaur had failed to conceive and give birth to a child. 9 Criminal Appeal No. 1891-SB of 2002 Whereas, the dying declaration Ex.PA/3 states that the husband used to level wild allegations. Thus, taking the entire factual matrix into consideration, it will be difficult to say that the demand of dowry was the cause of death of the deceased Balwinder Kaur or the demand of dowry led the deceased to commit suicide, as neither the demand was soon before the death nor according to the prosecution evidence, was the only reason for commission of suicide. Seen in the context that the marriage was six years old and no child was born, it can be safely assumed that the deceased was harassed, tortured and thrown out of the house for not giving birth to a child. Thus, the offence, if any, will fall under Section 306 IPC and not under Section 304-B IPC. Furthermore, parents of accused Manjit Singh were alive. Therefore, uncle and aunt (Chacha and Chachi) have nothing to gain from the demand of dowry. Even though, specific accusation has been made in the dying declaration, no such specific utterance has been made by Jaswant Kaur PW-1 and Jaspal Kaur alias Pal Kaur PW-2 against these two accused. Therefore, benefit of doubt ought to accrue to appellants Kulwant Singh and Ravinder Kaur. Thus, Kulwant Singh and Ravinder Kaur are acquitted of the charges. Before this Court determines the quantum of sentence to be awarded to the appellant Manjit Singh for an offence punishable under Section 306 IPC, this Court will be failing in its duty if the arguments advanced by Ms.Tarannum Cheema, a young budding Lawyer are not noticed and dealt with. The counsel was at pains to present the case as a clear case of acquittal. A long written note of arguments, accompanied by plethora of judgments, was also submitted. Therefore, each argument and the judgment, are required to be considered to justify the conclusion, at which this Court has already arrived. It was submitted that the dying 10 Criminal Appeal No. 1891-SB of 2002 declaration, being incredible, ought to be ignored for the following reasons: (a) The doctor, who had declared the deceased fit to make statement, has not been examined; (b) The doctor, in whose presence statement of the deceased was recorded, has also not been examined. (c) There is no medical evidence on the record, as no witness has been examined, who conducted autopsy, from whom damage caused to the organs of the deceased could be determined, as prosecution has only placed on record the post-mortem report Ex.PL and report of the Chemical Examiner Ex.PW-7/J. (d) Jaswant Kaur PW-1 has stated that after consumption of poisonous tablets, the deceased started vomiting and her legs were trembling. Learned counsel has further submitted that it has come in evidence that before reaching the hospital, Balwinder Kaur had become unconscious. (e) The deceased had consumed poison on 28th July, 1994 at about 8.00 p.m., medical ruqa was sent at Police Post, PGIMER at about 10.36 p.m. and statement of the deceased was recorded between 12.45 p.m. to 1.15 a.m. HC Piara Singh PW-3 has stated that when the statement of deceased was recorded, she was administered glucose, blood and oxygen. Learned counsel has submitted that duration of consumption of poison; immediate precarious condition disclosed by mother Jaswant Kaur PW-1; non-examination of the doctor who opined that the patient was fit to make statement and in whose presence dying declaration was 11 Criminal Appeal No. 1891-SB of 2002 recorded and denial of opportunity to examine the doctor who conducted autopsy, are the circumstances sufficient to discard the dying declaration. To support these arguments, reliance has been placed upon ‘Kanchy Komuramma v. State of Andhra Pradesh’ 1996 SCC (Criminal) 31, wherein, in para 11, it was held as under: “11. … … … As a matter of fact, the failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the Court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law. These safeguards have not been observed in the present case. Even PW-8, Dr.Kurthy, the Casulty Officer has not stated that the deceased was in a fit condition to speak.” Further reliance has been placed upon ‘Khushal Rao v. State of Bombay’ AIR 1958 Supreme Court 22, wherein it was held as under: “17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the 12 Criminal Appeal No. 1891-SB of 2002 dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.” ‘Smt. Laxmi v. Om Prakash and others’ JT 2001 (5) SC 280 has been cited to say that where the medical condition of the deceased is precarious, dying declaration should not be taken into consideration. A perusal of the judgment in Smt. Laxmi’s case (supra) reveals that even though one of the circumstances to ignore dying declaration was that the neck, mouth and lips of the deceased were burnt and she was under sedation and was administered glucose through drip, yet the prime reason for discarding the dying declaration was that the deceased in that case had made multiple dying declarations. This Court is of the opinion that all the judgments cited by counsel for the appellants are not necessary to be dealt with, as now the matter stands concluded by Hon’ble the Apex Court in a Constitution Bench judgment rendered in ‘Laxman v. State of Maharashtra’ 2002 (4) RCR (Criminal) 149, wherein it was held as under: “3. The jursitic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may effect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a 13 Criminal Appeal No. 1891-SB of 2002 nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to