IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 188-DB of 2001 DATE OF DECISION : 18.01.2010 Parvinder Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Vinod Ghai, Advocate, for the appellants. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellants Parvinder Singh and Harbans Kaur, the husband and mother-in-law of deceased Satinder Kaur, have filed the instant appeal against the judgment and order dated 28.2.2001, passed by Additional Sessions Judge, Ludhiana, in Sessions Case No. 55 of 14.11.1996, arising out of FIR No. 64 dated 9.4.1996, under Sections 302, 304-B, 498-A, 148 and 149 IPC, Police Station Division No.6, Ludhiana, whereby they have been convicted under Section 304-B IPC for the offence of dowry death. They were sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year. Crl. A. No. 188-DB of 2001 -2- 2. In this case, five accused namely Parvinder Singh and Harbans Kaur (appellants herein), Waryam Singh – father in law (who died during the trial), Manjit Singh – Jeth (elder brother of husband) and Maninder Kaur alias Pinki wife of Manjit Singh were tried for the offences under Sections 302 and 304-B IPC, but the learned trial court acquitted all the accused for the offence under Section 302 IPC and convicted only the present appellants for the offence under Section 304-B IPC, whereas the remaining two accused, namely Manjit Singh and Maninder Kaur were acquitted of the charge under Section 304-B IPC also. 3. As per the prosecution version, marriage of appellant Parvinder Singh with deceased Satinder Kaur was solemnized on 19.2.1994. She gave birth to a female child, five months prior to the day of occurrence, which had taken place on 28.3.1996 at about 10.30/11.00 p.m. in the house of appellants situated in Mohalla Ranjit Singh Park, Ludhiana. In the said occurrence, she suffered burn injuries. She was taken to the Hospital by her husband at 12.05 a.m. on 29.3.1996. The hospital authorities sent information to the police with regard to arrival of Satinder Kaur having burn injuries on her body. On receiving the said information, ASI Shamsher Singh (PW.7) reached the hospital and moved an application (Ex.PK) seeking opinion of the Doctor about fitness of the victim to make statement on 29.3.1996, upon which the Doctor vide his endorsement (Ex.PK/1) at 1.30 p.m., declared the victim Satinder Kaur fit to make statement. Thereafter, at 2.15 p.m., ASI Shamsher Singh recorded the statement of Crl. A. No. 188-DB of 2001 -3- Satinder Kaur (now deceased). In her statement, she stated that on 28.3.1996 at about 11 p.m., her husband came back from the work. Thereafter, when she was preparing meals for him, suddenly her scarf caught fire with the stove and when the fire engulfed her, she raised alarm. Thereafter, a quilt was put on her and the fire was extinguished by pouring water upon her and she was immediately brought to CMC Hospital. She had stated that the incident had taken place suddenly and no body was at fault. 4. On the basis of the above said statement, ASI Shamsher Singh recorded DDR No. 10 dated 29.3.1996(Ex.D1). On the same day, he also recorded the statements of Darshan Singh (PW.3) and Jaswant Kaur under section 161 Cr.P.C. These statements have been proved as Ex.PD and Ex.DA. Darshan Singh, in his statement (Ex.PD) took the stand that he was informed by Sukhwinder Singh, his brother-in-law (husband of sister), that his sister had been admitted in CMC Hospital, where he enquired from his sister about the occurrence, upon which she told him that during the night at about 11 PM, when she was cooking meals for her husband, her scarf accidentally caught fire from the stove. Her husband extinguished the fire and got her admitted in the Hospital. He further stated that his sister informed him that no body was at fault. Similar statement (Ex.DA) was made by Jaswant Kaur, mother of Satinder Kaur. 5. It is further the case of the prosecution that on 9.4.1996, after 12 days of the occurrence, two persons namely Amar Singh (PW.1), second brother of Satinder Kaur and Dilbag Singh (PW.5) went to the police station Crl. A. No. 188-DB of 2001 -4- and told SI Kuldeep Singh (PW.11) that the statement earlier made by Satinder Kaur was under pressure and now she wants to make fresh statement regarding the occurrence. Thereupon, he moved an application (Ex.PL) seeking opinion of the Doctor regarding fitness of the victim to make statement. At about 3.15 PM on 9.4.1996, Doctor gave his opinion (Ex.PL/1) to the effect that Satinder Kaur is medically fit for statement. As per the prosecution version, after obtaining the said opinion, SI Kuldeep Singh (PW.11) recorded the statement of Satinder Kaur at 4.30 PM on 9.4.1996. In the said statement (Ex.PW11/A), she stated that after her marriage with accused Parvinder Singh, her husband, mother-in-law Harbans Kaur, father-in-law Waryam Singh, Jeth Manjit Singh and Jethani Pinki were maltreating her on account of bringing less dowry. She further stated that after the birth of the female child, her husband, mother-in-law, father-in-law, Jeth and Jethani further demanded Scooter, Refrigerator and Television. When she expressed the inability of her parents to give those articles, she was beaten on many occasions. She did not tell about all this to her parents, as her another sister Kuldeep Kaur was sitting in her parents house being a divorcee. She stated that on 28.3.1996 at about 10.30 PM, when she was preparing meals, her husband started giving beating to her. Her mother-in-law, Jeth and Jethani caught hold of her and her father-in-law poured kerosene oil on her. When they were about to lit her on fire, her sister's husband Sukhwinder Singh, who was living in Punjab Mata Nagar Pakhowal Road, came there and he dissuaded them not to commit such Crl. A. No. 188-DB of 2001 -5- crime. When he was saying so, her father-in-law lit her on fire with match box. Then her sister's husband ran away from the spot. Thereafter, she raised raula, upon which, residents of the Mohalla assembled there. Thereafter, she became unconscious. She stated that she does not know who got her admitted in the Hospital. In her statement, she has also stated that on 29.3.1996, she has been burnt by the accused, as she could not bring sufficient dowry articles, as demanded by them. She has further stated that on 29.3.1996, she gave statement to the police under pressure of her in- laws, as they were saying that in case, she gives statement against them, they would kill her infant female child. The said statement was recorded in the presence of Amar Singh (PW.1) and Dilbag Singh (PW.5). Their signatures were also obtained on the said statement. On the basis of the said statement, FIR (Ex.PW11/D) was registered for the offences under Sections 307/498-A/148/149 IPC. 6. On 12.4.1996, victim Satinder Kaur expired in the Hospital at 4.45 PM. On 13.4.1996 at 1 PM, her post mortem examination was conducted by Dr. G.P. Mangla (PW.10). The post mortem report of the deceased has been proved on record as Ex.PW.10/D. According to this report, the cause of death was due to septicemia as a result of extensive burns, which were sufficient to cause death in the ordinary course of nature. All the burns were found ante-mortem in nature. After the death of Satinder Kaur, the offence under Section 307 IPC was altered to Section 302 IPC. 7. After completion of investigation, the challan was filed against Crl. A. No. 188-DB of 2001 -6- the accused and charges under Sections 304-B, 302 IPC were framed, to which the accused did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined 11 witnesses. PW.1 Amar Singh is the brother of the deceased, in whose presence the second statement of his deceased sister Satinder Kaur was recorded by SI Kuldeep Singh on 9.4.1996 at 4.30 PM. This witness did not support the prosecution case and was declared hostile. He had stated that he did not know any thing about the case and no statement of his sister was recorded in his presence on 9.4.1996. His sister never made any complaint with regard to maltreatment or demand of dowry by the accused. In cross-examination, he had stated that when the earlier statement of his sister was recorded by the police on 29.3.1996, he was also present along with his other brother and mother. PW.2 Sukhwinder Singh is the brother-in-law (husband of sister) of the deceased, who according to the second statement of the deceased was present in the house of the accused at the time of the alleged occurrence. This witness has also not supported the prosecution case. He has stated that no such incident had taken place in his presence. This witness was also declared hostile and cross-examined by the Public Prosecutor. He has denied that he had joined the police party on 25.4.1996 and a five litres can (Ex.P1) and the match box were recovered in his presence. PW.3 Darshan Singh is another brother of the deceased, who was present at the time of the earlier statement made by the deceased. This witness has stated that the first statement to the police was made by his Crl. A. No. 188-DB of 2001 -7- sister in his presence and it was not given under any kind of pressure. He has further stated that at that time, his mother Jaswant Kaur was also present. PW.4 Joginder Singh is a formal witness, who proved the wedding card Ex.PF and Ex.PG. PW.5 Dilbag Singh is the witness to the second statement recorded by SI Kuldeep Singh on 9.4.1996 in the Hospital. This witness has also not supported the prosecution case and was declared hostile and was cross-examined by the State. PW.6 Mohan Lal is the MHC who proved the deposit of one container of plastic, from which smell of kerosene oil was coming, and one match box, by SI Kuldeep Singh on 25.4.2006. PW.7 ASI Shamsher Singh recorded the first statement of the deceased and he has stated that he recorded the statement on 29.3.1996, after obtaining the opinion of the Doctor about the fitness of the victim to make the statement and on the basis of the said statement, DDR (Ex.D1) was recorded by him. In his cross-examination, he admitted that on 29.3.1996, when he recorded the said statement, her brothers Darshan Singh, Amar Singh and mother Jaswant Kaur were present. He also recorded the statements of Darshan Singh and Jaswant Kaur under Section 161 Cr.P.C., on the said day. This witness has also stated that he moved the second application (Ex.PL) seeking the opinion of the Doctor about fitness of the deceased to make statement, but the Doctor did not give opinion on 9.4.1996 in his presence. PW.8 Constable Angrej Singh is the formal witness, who got conducted the post mortem examination of the deceased. PW.9 Shri Lawrance, Senior Clerk, CMC & Hospital, Ludhiana has proved signatures Crl. A. No. 188-DB of 2001 -8- of Dr. Arun Ganguli on the opinion Ex.PL/1, whereby Satinder Kaur was found fit to make statement. This witness has also proved Ex.PW9/B, vide which information regarding death of Satinder Kaur was sent by Dr. Arun Ganguli. He further proved the injury statement Ex.PW9/C, written and signed by Dr. Arun Ganguli, according to which the mode of injuries is accidental. PW.10 Dr. G.P. Mangla conducted the post mortem on the dead body of Satinder Kaur and he proved the post mortem report as Ex.PW10/D. PW.11 Inspector Kuldeep Singh is the Investigating Officer of the case, who recorded the second statement of Satinder Kaur on 9.4.2006 and also recovered one plastic can and match box from near the kitchen of the house of the accused on 25.4.1996 vide recovery memo Ex.PC. In cross- examination, this witness has admitted that he did not move application Ex.PL seeking opinion of the Doctor with regard to the fitness of Satinder Kaur. The opinion Ex.PL/1 was not given by the Doctor in his presence. This witness has further admitted in his cross-examination that he did not make any request to the Illaqa Magistrate or other Magistrate for getting the statement of Satinder Kaur recorded by him. He also admitted that the statement of Satinder Kaur (Ex.PW11/A) was not recorded in the presence of any doctor. 9. In their statements under Section 313 Cr.P.C., the accused denied all the allegations appearing against them in the evidence led by the prosecution. They pleaded innocence and took the plea that they have been falsely implicated in this case at the instance of father of the deceased, Crl. A. No. 188-DB of 2001 -9- whereas the death occurred accidentally by bursting stove. However, no evidence was led by the accused in their defence. 10. The trial court, while relying upon the second statement Ex.PW11/A, held that the deceased was subjected to cruelty or harassment by her husband Parvinder Singh (appellant No.1), mother-in-law Harbans Kaur (appellant No.2) and father-in-law Waryam Singh (now deceased) and that such cruelty or harassment was for and in connection with dowry demand which ultimately climaxed in scorching her to death by the appellants and deceased Waryam Singh within a span of 2 ½ years of her marriage. Accordingly, the appellants were convicted for the offence under Section 304-B IPC, and acquitted of the offence under Section 302 IPC. However, the remaining two accused, namely Manjit Singh and Maninder Kaur alias Pinki, were acquitted of both the offences. Against the said judgment, the instant appeal has been filed by the appellants. 11. Learned counsel for the appellants argued that though the deceased Satinder Kaur had died unnatural death within seven years of her marriage with appellant Parvinder Singh, but from the evidence led by the prosecution, it has not been proved that the appellants have caused the dowry death of Satinder Kaur. Learned counsel argued that in the statement of the deceased, which was recorded by ASI Shamsher Singh (PW.7) immediately after her admission in the Hospital, after obtaining opinion of the Doctor about her fitness, the deceased had categorically stated that when she was preparing meals for her husband, suddenly her scarf caught fire Crl. A. No. 188-DB of 2001 -10- with the stove and no body was at fault. Learned counsel argued that the said statement was made by the deceased in the presence of her brothers Darshan Singh, Amar Singh and her mother Jaswant Kaur. Amar Singh and Darshan Singh, while appearing in the court as PW.1 and PW.3, respectively, have not supported the prosecution version. They have categorically stated that the deceased had died by accident, while she was preparing meals in her house. Learned counsel argued that the trial court, while relying upon the second statement (Ex.PW.11/A) of the deceased alleged to have been made on 9.4.1996 to SI Kuldeep Singh (PW.11), has convicted the appellants for the offence of dowry death, in spite of the fact that the said statement was wholly unreliable and was not corroborated by any other evidence. Learned counsel submits that the said statement was allegedly recorded by SI Kuldeep Singh in the presence of Amar Singh (PW.1) and Dilbagh Singh (PW.5). But these witnesses have not supported the prosecution case. They have categorically stated that in their presence no such statement was made by the deceased and recorded by SI Kuldeep Singh. Rather, according to PW.1 Amar Singh, the deceased made her last statement on 29.3.1996 to ASI Shamsher Singh, in his presence, in which she had stated that the incident had taken place suddenly, while she was preparing the meals. Learned counsel argued that in the instant case, there is absolutely no evidence to prove that the appellants have committed any dowry death of the deceased. None of the family members of the deceased has supported the prosecution case, therefore, conviction of the appellants Crl. A. No. 188-DB of 2001 -11- under Section 304-B IPC is wholly unsustainable and is liable to be set aside. 12. On the other hand, learned State Counsel supported the judgment of the learned trial court and argued that there is sufficient and reliable evidence on record, on the basis of which conviction of both the appellants under Section 304-B IPC by the trial court is fully justified. 13. An accused can be convicted under Section 304-B IPC for commission of the offence of dowry death, if the following ingredients are established by the prosecution : (a) The death of a woman is caused by any burns or bodily injury or occurred otherwise than under normal circumstances; (b) Such death occurred within seven years of the marriage of the deceased; (c) The deceased was subjected to cruelty or harassment by her husband or any relative of her husband; (d) Such cruelty or harassment was for, or in connection with, any demand for dowry; and (e) Such cruelty or harassment of the deceased was soon before the death of the deceased. 14. In the instant case, it is undisputed position that deceased Satinder Kaur had died within seven years of her marriage due to burn injuries, as has been opined by PW.10 Dr. G.P. Mangla. Thus, the first two ingredients for commission of the offence of dowry death are not disputed. As far as the remaining three ingredients are concerned, we are of the opinion that the same have not been established by the prosecution, in order Crl. A. No. 188-DB of 2001 -12- to bring the instant case under the definition of a `dowry death'. Rather, the evidence available on the record, positively indicates that in the instant case, the unnatural death has taken place by accident and not on account of cruelty or harassment caused to the deceased for, or in connection with demand of dowry, soon before her death. Undisputedly, in the instant case, the occurrence had taken on 28.3.1996 at about 10.30/11.00 P.M in the house of in-laws of the deceased, in which she got burn injuries. She was immediately shifted to Hospital at 00.05 A.M on 29.3.1996. The information was sent to the police by the Hospital authorities. ASI Shamsher Singh reached the Hospital, obtained the opinion of the Doctor about the fitness of the victim to make statement and recorded the first statement of Satinder Kaur at 2.15 P.M., in the presence of her mother Jaswant Kaur and two brothers, namely Amar Singh and Darshan Singh. In that statement, she had stated that while she was preparing meals for her husband, her scarf suddenly caught fire with the stove and no body was at fault. Amar Singh and Darshan Singh, while appearing in the court as PW.1 and PW.3, respectively, have categorically stated that the deceased made the aforesaid statement before them, which was recorded by ASI Shamsher Singh, after obtaining the opinion of the Doctor about the fitness of their sister Satinder Kaur to make statement. The case of the prosecution is that the said statement was made by the deceased under the pressure of the accused. In this regard, it is stated that on 9.4.1996 i.e. after 12 days of making the first statement on 29.3.1996, PW.1 Amar Singh and PW.5 Crl. A. No. 188-DB of 2001 -13- Dilbagh Singh came to the Police Station and told to SI Kuldeep Singh that the statement earlier made by Satinder Kaur was under pressure and now she wants to make fresh statement regarding the occurrence. Thereupon, again a fitness certificate was obtained from the Doctor and after obtaining the said certificate, SI Kuldeep Singh recorded the statement of Satinder Kaur on 9.4.1996 at about 3.15 PM, in which she had stated that her husband, mother-in-law, father-in-law, Jeth and Jethani were harassing her on account of bringing less dowry and they were demanding Scooter, Refrigerator and Television and when she expressed her inability to persuade her parents to give those articles, she was beaten on many occasions. She further stated that on 28.3.1996 at about 10.30 PM, when she was preparing meals, her husband started giving beating to her. Her mother- in-law, Jeth and Jethani caught hold of her and her father-in-law poured kerosene oil on her. When they were about to lit her on fire, her sister's husband Sukhwinder Singh came there and he dissuaded them not to commit such crime. When he was saying so, her father-in-law lit her on fire with match box. Then Sukhwinder Singh ran away from the spot. When she raised noise, many residents of the Mohalla assembled there. Thereafter, she became unconscious. 15. The trial court has taken the above statement of deceased Satinder Kaur as her dying declaration, because on 12.4.1996, i.e. 3 days after the aforesaid statement, she died in the Hospital. While relying upon the said statement, which is allegedly proved by PW.11 SI Kuldeep Singh as Ex.PW.11/A, and the recovery of one plastic can and match box from near Crl. A. No. 188-DB of 2001 -14- the kitchen of the house of the accused on 25.4.1996 vide recovery memo Ex.PC and the fact that unnatural death of deceased Satinder Kaur had taken place within seven years of her marriage, the trial court has convicted both the appellants for the offence under Section 304-B IPC. 16. Now, the question arising for consideration is that whether in the facts and circumstances of the case, the second statement (Ex.PW.11/A) made by deceased Satinder Kaur, which has been treated as dying declaration, is reliable and is corroborated by the other reliable evidence ? The second statement was recorded by SI Kuldeep Singh in the Hospital on 9.4.1996 at 4.30 P.M., after obtaining the opinion of the Doctor about the medical fitness of Satinder Kaur (deceased) to make statement. The said statement was recorded in the presence of PW.1 Amar Singh and PW.5 Dilbagh Singh. Though opinion of the Doctor was obtained about the fitness of the victim at about 3.15 P.M on 9.4.1996, but her statement was not recorded in the presence of the Doctor. SI Kuldeep Singh does not give any explanation for the same. It is also on the record that SI Kuldeep Singh did not make any effort to call the Judicial Magistrate for recording the alleged dying declaration of Satinder Kaur. No explanation has been given in this regard. It is well settled that when there is sufficient time with the police to call the Magistrate for recording the dying declaration, then the recording of the same by the police official is always looked with suspicion by the court. Though a dying declaration made to a police officer is admissible in evidence, if proved to be reliable, but the practice of dying declaration being Crl. A. No. 188-DB of 2001 -15- recorded by the Investigating Officer has been discouraged by the Hon'ble Supreme Court, particularly when sufficient time was available for availing the services of the Magistrate for recording the dying declaration. In Munna Raja and another v. The State of Madhya Pradesh, AIR 1976 SC 2199, the Hon'ble Apex Court has observed that the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to be encouraged. The dying declaration recorded by the Investigating Officer in the presence of the Doctor and some of the friends and relatives of the deceased was excluded from consideration when failure to requisition the services of a Magistrate for recording the dying declaration was not explained. 17. In the instant case, the alleged dying declaration (Ex.PW.11/A) was recorded in the presence of PW.1 Amar Singh, brother of the deceased, and PW.5 Dilbagh Singh. Both these witnesses have not supported the case of the prosecution.