IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.889-SB of 1999 Date of Decision: June 30, 2010 Ashok Kumar .......Appellant Versus State of Haryana .......Respondent CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Baljinder Singh, Advocate for the appellant. Mr.Shakti Singh Chauhan, Asstt.Advocate General, Haryana. <><><> JITENDRA CHAUHAN, J. 1. Ashok Kumar, appellant, before this Court was convicted by the learned Trial Judge, vide judgment/order dated 9.9.1999, for an offence under Section 306 of the Indian Penal Code and was sentenced to rigorous imprisonment for five years and a fine of Rs.2,000/-. It was further directed that in default of the payment of fine, he shall undergo rigorous imprisonment for a further period of six months. 2. The prosecution story, in brief, is as under: Daya Rani, since deceased, was married to the accused- appellant Ashok Kumar on 14.10.1996 and they lived as wife and husband in village Habri. It is alleged that the accused-appellant used to quarrel with Daya Rani and also used to beat and taunt her for bringing insufficient Criminal Appeal No.889-SB of 1999 2 dowry from her parents. On 28.8.1998, Daya Rani was admitted in Civil Hospital, Kaithal with extensive burns on her body. Her statement was recorded by Naib Tehsildar and on that basis, a case under Section 306 of the Indian Penal Code was registered against the accused. Daya Rani later on succumbed to the injuries on 13.9.1998 while she was admitted in PGI, Chandigarh. Post mortem examination was conducted on her dead body, inquest proceedings were carried out and the accused-appellant was arrested. On completion of investigations, challan was filed against the accused-appellant before the Illaqa Magistrate, who committed the case to the Court of learned Addl. Sessions Judge, Kaithal (hereinafter as the 'Trial Court') 3. Accused-appellant was charge-sheeted, vide order dated 4.12.1998, by the learned trial Court for the offence punishable under Section 306 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. To support its case, the prosecution has examined as many as eleven witnesses. The version of material witnesses is reproduced hereunder. PW1 – Sh. Baru Ram, Naib Tehsildar stated that he recorded dying declaration, Exhibit PB, of Daya Rani on 28.8.1998 after the Doctor had given his certificate, Exhibit PB/1, about the fitness of Smt.Daya Rani. PW4 – Ram Sarup, father of the deceased, Daya Rani, deposed that the accused – appellant had been mal-treating his daughter Daya Rani who was married to him on 14.10.1996. He further stated that accused-appellant also used to quarrel and beat his daughter and used to taunt her for bringing insufficient dowry. Deceaced, Daya Rani, used to Criminal Appeal No.889-SB of 1999 3 narrate these facts to him. He also stated that on 28.8.1998, he received information of this occurrence and reached the hospital but the family members of accused-appellant did not allow him to meet his daughter. PW5 – Dr. Ghanshyam Goel testified that he had medico legally examined Smt. Daya Rani on 28.8.1998. As per statement of the Doctor, the deceased, Daya Rani, was admitted to the Hospital with the history of burns while preparing food on stove and there were superficial deep burns on her body. He proved copy of MLR Exhibit PF and also stated that the injuries on the person of the deceased were declared dangerous to life. PW6 – Dr. Sandeep Mahindera, Junior Resident, Department of Surgery, PGI, Chandigarh, stated that the deceased, Daya Rani, expired in PGI on 13.9.1998. He further stated that he prepared the death summary, Exhibit PH, and informed the police vide ruqa, Exhibit PJ. PW8 – Jogi Ram, ASI is the Investigating Officer of the case. This witness stated that on receipt of information regarding admission of Daya Rani in the Hospital on 28.8.1998, he moved an application, Exhibit PA, before the Sub Divisional Magistrate, Kaithal for recording dying declaration of Daya Rani and accordingly, on his application, Sh. Baru Ram, Naib Tehsildar, recorded the dying declaration Ex.P8. It was also stated by him that he prepared a rough site plan, Exhibit PL, of the place of occurrence and took into possession one small tin container, one salwar and jumpher vide recovery memo, Exhibit PM, and converted them into parcels by affixing seal of 'JRS'. He also recorded statements of the witnesses under Section 161 of the Code of Criminal Procedure, arrested the accused and completed the investigations. Criminal Appeal No.889-SB of 1999 4 5. The statements of remaining witnesses were formal in nature. 6. The Public Prosecutor tendered in evidence report of FSL, Madhuban, Exhibit PE, and gave up PWs Nanak Chand and Arjun Singh on 22.3.1999 as having been won over by the accused-appellant. PW Subhash was given up as being unnecessary. PWs Bimla Devi and Vijay Kumar were also given up on 10.4.1999 as having been won over by the accused- appellant. 7. Statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure in which he denied all the allegations made by the Prosecution and pleaded innocence. He pleaded that after his marriage with the deceased, he found that she was not adjusting with his family as she was a quarrelsome lady. The accused- appellant further stated that he even separated from his widowed mother, brother and sisters. He along with his friends had gone to Vaishno Devi on 27.8.1998 and on his return, Daya Rani was found annoyed with the visit and she took up a quarrel with him. He further stated that on 28.8.1998, when he came to the house from his shop for taking lunch, Daya Rani again took up a quarrel and later on, put herself on fire in a room. He also stated that on hearing cries of Daya Rani, he rushed to the said room and tried to extinguish the fire and in that process, he also received burn injuries. Accused-appellant also stated that the parents of Daya Rani were immediately informed of the occurrence and Daya Rani was shifted to the Civil Hospital, Kaithal. Ram Sarup, the father of the deceased, Daya Rani, visited the hospital, tutored his daughter and as such he has been falsely implicated by Daya Rani in this case at the instance of Ram Sarup. 8. I have heard learned counsel for the parties and perused the Criminal Appeal No.889-SB of 1999 5 records of the case. 9. The questions that arise for the consideration before this Court are whether the dying declaration of the deceased inspires confidence and whether the accused-Ashok Kumar abetted the commission of suicide by his wife-Daya Rani. 10. From the record, it is made out that the marriage between the parties was solemnized on 14.10.1996. Daya Rani committed suicide on 28.8.1998 by setting herself on fire after pouring kerosene oil. She succumbed to the burn injuries on 13.9.1998 at PGI, Chandigarh. 11. The dying declaration was recorded on the same day i.e. 28.8.1998, by the Naib Tehsildar-cum-Executive Magistrate, on the direction of the Sub Divisional Magistrate, on the application of Investigating Officer, Ex.PA, after obtaining doctor’s opinion regarding fitness of the deceased to make the statement. From the perusal of the dying declaration, it is clearly established that the appellant handed over the kerosene container to the deceased and instigated her to set herself on fire. The fact of dowry demand, harassment and beating is also established from the dying declaration. It is from the sequence of the dying declaration that the truthfulness of the same is established. The deceased did not make an effort to implicate the family members of the accused-appellant, as is normally seen in such like cases which further proves the veracity of the dying declaration. There was also no delay in recording the dying declaration. Therefore, I am convinced that the dying declaration in the instant case inspires confidence and is a reliable and cogent piece of evidence. 12. From the dying declaration (Ex.P-B), it is made out that the deceased was subjected to cruelty by the appellant. The translation of the Criminal Appeal No.889-SB of 1999 6 contents of the dying declaration reads as under:- “My husband Ashok Kumar came from the shop and stated that he is to give gift of clothes to his nephew, so give me some money and she replied that she has no money and accused again said that you take money from my purse and who quarrel with me whole day and night. Thereafter, he gave me container of kerosene oil and said you put on fire on yourself, I will not save you. That due to fear, I put myself on fire. Accused said that I give my gifts to my sisters but your parents do not give anything. From the last two years, I was beaten by him. He beat me but did not say to the other family members. He took everything in the house but after so many days.” 13. The death has occurred within a period of less than two years after the solemnization of marriage between the parties at the matrimonial home, in the presence of the accused. There is no evidence that some intruder entered the house. In the circumstances, it is for the appellant to explain as to how the death has not occurred as per case of the prosecution. Therefore, the required ingredients for drawing presumption under Section 113-A of the Indian Evidence Act are clearly established in the instant case. Section 113-A of the Indian Evidence Act reads as under:- “113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to Criminal Appeal No.889-SB of 1999 7 cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” 14. I find no substance in the submission made by the learned counsel for the appellant that the appellant suffered injuries while saving the deceased. It has come in the statement of Dr. Ghanshyam Goel (PW-5) that the injuries received by the appellant were superficial and simple in nature. Moreover, the burn injuries on the person of the deceased go to establish that it cannot be a case of stove-bursting while cooking. The seat of burn injuries establish that the kerosene oil was poured over the body of the deceased. Further, I do not find any substance in the submission of the learned counsel for the appellant that the Investigating Officer visited the place of occurrence on 21.9.1998 and therefore, recovery is not proved. But belated spot inspection is not fatal to the case of the prosecution. There is further no substance in the submission of the learned counsel for the appellant that there are improvements in the statement of Ram Sarup (PW- 4), father of the deceased. Rather, this shows that the Police tried to help the accused as no statement of this witness was recorded for about two months from the date of occurrence. In fact, he has totally supported the case of the prosecution. 15. There is total corroboration of the ocular version with the medical evidence on record in the instant case. The presence of the father at the time when the dying declaration was being recorded, does not in any way either dilute the sanctity or affect the veracity of the same. 16. Learned counsel for the appellant has failed to point out any perversity in the judgment/order of the learned trial Court. The learned trial Criminal Appeal No.889-SB of 1999 8 Court has taken the view after having considered all the evidence on record. The learned counsel has failed to persuade this Court to show that the view taken by the learned trial Court is not the possible view in the facts and circumstances of the present case. 17. The Hon’ble Supreme Court in Uka Ram V. State of Rajasthan, AIR 2001 SC 1814 at para 6, has observed as under:- “Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the case of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and virtuous man under oath – Nemo moriturus praesumuntur mentiri. Such statements are admitted, upon consideration that their declarations Criminal Appeal No.889-SB of 1999 9 made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principles on which the dying declarations are admitted in evidence, is based upon the legal maxim Nemo moriturus praesumitur mentire i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or produce of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.” 18. Further, the Supreme Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Criminal Appeal No.889-SB of 1999 10 Raja V. State of U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. V. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi V. State of Bihar, AIR 1983 SC 164). 19. In view of the facts and circumstances as discussed above, the learned trial Court has taken the most probable view of the occurrence after proper appreciation of evidence on record and in the opinion of this Court, rightly so. Accordingly, for the reasons recorded above, the present appeal is dismissed and the judgment/order dated 9.9.1999 passed by the learned Additional Sessions Judge, Kaithal, is maintained. ( JITENDRA CHAUHAN ) June 30, 2010 JUDGE SRM/atulsethi Note: Whether to be referred to reporter ? Yes/No