Crl.Appeal No.1163-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1163-SB of 1999 Date of decision: 6.7.2010 Ram Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Rajesh Dadwal, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Ram Singh son of Mohinder Singh preferred this appeal to impugn the judgment of conviction and order of sentence dated 25.11.1999 rendered by Additional Sessions Judge, Hoshiarpur, arising out of FIR No.39 dated 5.5.1995, Police Station Mukerian, under Section 306 IPC. By the said judgment, he was convicted under Section 306 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for three months. Prosecution story, in brief, is that Ram Singh is the real brother of Lachhman Singh and Lachhman Singh was married with Harjit Kaur (deceased), whereas Ram Singh was married with Gurmit Kaur, real sister of Harjit Kaur. Ram Singh and Lachhman Singh were residing together. Ram Singh gave beatings to Harjit Kaur on 3.5.1995 on the pretext as to why she (Harjit Kaur) used to wear attractive clothes and not wearing simple clothes. On account of harassment and maltreatment at the instance of Ram Singh, Harjit Kaur had set herself on fire when her mother-in-law Crl.Appeal No.1163-SB of 1999 2 was also present. She had left the place of occurrence. Harjit Kaur was shifted to hospital on 3.5.1995. Intimation regarding admission was sent to the concerned police station. On receipt of information, SI Madan Lal moved an application requesting SDM, Mukerian, for recording statement of Harjit Kaur. SDM, Mukerian, deputed Amarbir Singh, Naib Tehsildar- cum-Executive Magistrate, Mukerian, to record the statement of Harjit Kaur. Executive Magistrate, as per order of the SDM, had gone to Civil Hospital, Mukerian, and moved an application requesting the doctor to give opinion regarding fitness of the patient as to whether she was fit to make statement or not. Harjit Kaur was declared unfit to make statement, but later on, on the same day at 7.00 PM, again Executive Magistrate had sought opinion from the doctor regarding fitness of patient to make statement. At 7.00 PM, Harjit Kaur was declared fit to make statement. Then statement of Harjit Kaur was recorded by Executive Magistrate. She reported to the Executive Magistrate that she is the wife of Lachhman Singh. Today her brother-in-law gave beatings to her by saying as to why she was wearing good clothes and why she was not wearing simple clothes. She felt offended and had set herself on fire. At that time, her mother-in-law was also present, but cannot tell where she had gone. At 7.30 PM, doctor gave certificate that patient was fit while recording statement. Statement was thumb marked by Harjit Kaur in token of its correctness. On 5.5.1995, Harjit Kaur had succumbed to her burn injuries. Intimation was sent regarding death of Harjit Kaur. On receipt of information, formal FIR was recorded on the basis of dying declaration (Ex.PA). SI Madan Lal had gone to Civil Hospital, Mukerian, where he Crl.Appeal No.1163-SB of 1999 3 had recorded statements of Satnam Singh, Puran Singh and Kulwant Singh. Inquest report (Ex.PF) was prepared. Rough site plan with correct marginal notes was prepared, where dead body was lying. After that, Investigating Officer had gone to the spot and prepared rought site plan (Ex.PO) with correct marginal notes. One plastic can containing kerosene and one match box were lifted from the spot and taken into police possession vide separate memo attested by the witnesses. Accused were arrested and after completion of investigation, challan was presented in the Court. Accused was charged under Section 306 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined PW1 Amarbir Singh, Naib Tehsildar-cum-Executive Magistrate, Mukerian, who stated that as per order of the SDM, Mukerian, he had gone to Civil Hospital, Mukerian. Opinion of the doctor was sought regarding fitness of patient as to whether she was fit to make statement or not. At 4.00 PM, Harjit Kaur was declared unfit to make statement. On the same day at 7.00 PM, again enquiry was made from the doctor regarding fitness of the patient. Doctor reported at 7.00 PM that patient was fit to make statement. Then statement of Harjit Kaur (Ex.PA) was recorded. PW1 was again recalled in view of the application of the State. Again, Executive Magistrate stated that as per order of SDM,Mukerian, he had recorded statement of Harjit Kaur. PW2 Dr.Shavinder Singh stated that on 3.5.1995, Harjit Kaur was admitted in Civil Hospital, Mukerian, due to burn injuries. Injuries were to the extent of 80%. Patient was admitted at 2.30 PM. Intimation was given to the concerned police station vide chit (Ex.PB). Executive Crl.Appeal No.1163-SB of 1999 4 Magistrate moved application (Ex.PA/1) requesting the doctor to opine as to whether patient was fit to make statement or not. At 4.00 PM, patient was declared unfit to make statement. Again at 7.00 PM vide endorsement (Ex.PA/3), patient was declared fit to make statement. Then statement of Harjit Kaur was recorded by Executive Magistrate. Harjit Kaur remained fit while recording her statement. Certificate (Ex.PA/4) was issued to this effect. Harjit Kaur had succumbed to her injuries at 1.05 AM on 5.5.1995. PW3 Dr. Rajesh Kumar Bagga had conducted postmortem examination on the dead body of Harjit Kaur and observed as under:- “It was a dead body of a young female lying supine with right ankle bandaged and containing a venesection cannula. Eyes and mouth closed. Watery fluid was coming out of the oral cavity and nose. There were superficial to deep burns all over the body except soles of both feet, left leg below knee on the front, left side of face and scalp. Black soot was present all over the chest and abdomen with peeling of skin at places. Singeing of scalp hair and eye brow were present. Body was lying in flexed posture. Length of body was 5 feet 3 inches. Membranes of the brain and brain were congested. Wall, ribs and cartilages have already been described. Pleural were congested. About 200cc of fluid was present in each pleural cavity. Larynx and trachea congested and black soot was present over the mucus of trachea. Right and left lung were congested. Heart was full of blood. Walls of the abdomen have already been described. Peritoneum was congested. Mouth, Pharynx and Oesophagus was also congested. Stomach was Crl.Appeal No.1163-SB of 1999 5 containing gastric juices. Small ulcers were seen on the mucosal lining of stomach. Small intestines; small ulcers were seen on the ling of the duodenum, intestines contained chyle and gases. Large intestines:- Healthy containing gases and faecal matter. Liver, spleen and kidneys were congested. Bladder was healthy. Organ of generation external and internal described.” Cause of death was burn injuries, which were sufficient to cause death in ordinary course of nature. Burns were ante mortem in nature. PW4 Constable Dalip Singh stated that on 5.5.1995, he was with the Investigating Officer and in his presence, one plastic can containing some kerosene and one match box were lifted from the place of occurrence and taken into police possession vide separate memo attested by him. PW5 Constable Mohan Singh tendered his affidavit (Ex.PH). PW6 Lachhman Singh is the husband of Harjit Kaur (deceased), but he has not supported the prosecution story and was declared hostile. PW7 Constable Harpal Singh tendered his affidavit (Ex.PK). PW8 Inspector Harbhajan Sarup had arrested the accused on 12.5.1995. PW9 Puran Singh had identified dead body of Harjit Kaur. PW10 HC Hawa Singh and PW11 HC Parwinder Jit Singh filed their affidavits (Ex.PL and Ex.PM), respectively. PW12 SI Madan Lal was the Investigating Officer. Crl.Appeal No.1163-SB of 1999 6 After close of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was as under:- “Harjit Kaur deceased was my brother's wife Lachhman Singh PW and we are living in the same house from many years. We were very cordial and affectionate towards each other. In fact Harjit Kaur caught fire accidentally while she was working in the kitchen. The persons assembled there extinguished the fire and tried to save her. She told that she accidentally received fire, she was taken to Civil Hospital, Mukerian. Police was demanding huge amount from the relative of the deceased but I refused to do so because nobody was responsible for the death of Harjit Kaur. Police in connivance with Niab Tehsildar fabricated the statement of Harjit Kaur in order to falsely implicate me in the case and police intentionally twisted the facts by giving it to the shape of dying declaration whereas Harjit Kaur did not make dying declaration before the Naib Tehsildar as alleged. The relative protested against the high- handedness of the police and an application was moved by the parents of the deceased and relative and Harjit Kaur also put her thumb impression upon that application which was moved to the SHO, PS Mukerian, to record her statement in favour of the accused because police was fabricating the version. When police did not agree to comply with the application of the deceased and her relative then the relative of the deceased Crl.Appeal No.1163-SB of 1999 7 engaged a Lawyer Sh. G. S. Dhanoa at Dasuya who drafted and filed the application with signatures of the relative of the deceased to the ld. Magistrate Sh. B.K. Gaur, SDJM, Dasuya, in that application request was made to the Magistrate to record the statement of Harjit Kaur. Sh. B.K. Gaur put time on the application and passed orders according to which direction was issued to the police to make arrangement and look into the matter for recording fresh statement of Harjit Kaur. The application with original order of the Magistrate was received by the police but the police did not comply with the orders of the magistrate and the request of the relative of Harjit Kaur, rather subsequently the police informed the court that the police had already recorded the statement. Police intentionally did not record the statement of Harjit Kaur because she was deposing in favour of Ram Singh accused and was saying that she received accidental fire injuries. When police was not bothering about it then husband Lachhman Singh PW and other relative of the deceased recorded the statement of Harjit Kaur by bringing tape recorder and Harjit Kaur got her statement recorded in the cassette Mark-A placed on the file in which Harjit Kaur clearly stated that she has not committed suicide nor anybody is responsible for that. She made it crystal clear in her statement that she received accidental fire injuries Mark-C is the application placed on the file upon which there is order of Sh. B.K. Gaur, SDJM, Dasuya. Mark-B is an application moved by Harjit Kaur and her other relative to the Crl.Appeal No.1163-SB of 1999 8 SHO, Dasuya. But the police submitted false report Mark D to the Magistrate in stead of complying the orders of the Magistrate to record her statement afresh. The relative of the deceased have also submitted affidavits in favour of me at the time of moving of bail application and bail was granted to me. I have never abetted Harjit Kaur to commit suicide nor she has committed. The case is false.” Opportunity was given to lead defence evidence but no defence was led. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, accused-appellant was convicted and sentenced as stated above. I have heard learned counsel for the appellant, State counsel and gone through the evidence on the file. Learned counsel for the appellant argued that Ram Singh was the real brother of Lachhman Singh (PW6). Harjit Kaur (deceased) was the real sister of the wife of Ram Singh, appellant. At the time of alleged occurrence, Lachhman Singh, his brother and mother were present. Lachhman Singh appeared as PW6 but did not support the prosecution story. Mother of the appellant was not produced for the best reasons known to the prosecution. Case is based on dying declaration (Ex.PA) of the deceased, but evidence on the file shows that dying declaration inspires no confidence. Dying declaration alone is not sufficient for conviction of the appellant unless there is corroboration from some independent evidence. According to the Executive Magistrate, certificate was issued by lady doctor. Lady doctor was present when dying declaration was recorded but Crl.Appeal No.1163-SB of 1999 9 she was not produced. Instead of lady doctor, Dr. Shavinder Singh was produced. Statement of Dr. Shavinder Singh is without any evidentiary value because according to Executive Magistrate, only lady doctor was present when dying declaration was recorded. After statement (Ex.PA), application (Mark B) was given to the SHO with a request to re-record the statement of Harjit Kaur. Application was signed by Gurnam Singh, Satnam Singh, Dalip Singh and Pritam Kaur, i.e., brothers, father and mother of the deceased. Application (Mark C) was presented before SDJM, Dasuya, to depute Magistrate to record the statement of Harjit Kaur, but statement of Harjit Kaur was not recorded. In fact, thumb impressions of Harjit Kaur were obtained on blank papers. Dying declaration (Ex.PA) was fabricated with the connivance of police. According to dying declaration, brother-in-law of the deceased had misbehaved with her but prosecution is not clear as to which of the brother-in-law had misbehaved. Ram Singh and Prem Singh are the real brothers of Lachhman Singh. Appellant was not named in the dying declaration. So, there is a possibility that third brother Prem Singh might have misbehaved with the deceased abetting her to commit suicide. Evidence on the file was not rightly scrutinized by the trial Court. Occurrence was on 3.5.1995 at about 4.00 PM. At that time, appellant was about 32 years' old. Appellant is the first offender and he has not committed any such type of act after the present occurrence. Appellant has already undergone near about three months and is to become hard criminal if again sent to jail. Requested that lenient view may be taken if Court is of the view that appellant had abetted the deceased to commit suicide. Learned State counsel argued that appellant is the real brother- Crl.Appeal No.1163-SB of 1999 10 in-law of deceased Harjit Kaur. Deceased Harjit Kaur and her sister Gurmit Kaur were married to real brothers, namely, Lachhman Singh and Ram Singh. Deceased had no issue as per evidence on the file. Lachhman Singh while appearing as PW6 did not support the prosecution story but Lachhman Singh was not the eye witness. So, statement of Lachhman Singh is not helpful to the appellant. Mother of the appellant was also present on the spot, but she was not examined as won over by the appellant. Mother could easily be produced in defence to state that there was no harassment or maltreatment at the hands of appellant abetting Harjit Kaur to commit suicide. Lachhman Singh being the real brother of the appellant while appearing as PW6 failed to support the prosecution story because Harjit Kaur had succumbed to her burn injuries on 5.5.1995. After the death of Harjit Kaur, Lachhman Singh was not to get anything if his brother Ram Singh was convicted and sentenced. Lachhman Singh in order to save his brother did not support the prosecution story because Lachhman Singh had no issue. Immediately after the occurrence, Harjit Kaur was shifted to hospital. She was admitted in the hospital at 2.30 PM. At 4.00 PM, patient was unfit to make statement. But at 7.00 PM, patient was fit to make statement. Then her statement (Ex.PA) was recorded by the Executive Magistrate. Executive Magistrate was not inimical towards the appellant. So, there was no idea to obtain thumb impressions of the deceased on blank papers. Doctor was also present when statement of Harjit Kaur was recorded. Doctor was not inimical towards the appellant. So, there was no idea to state that dying declaration (Ex.PA) was not correctly recorded. No evidence on the file that parents of Harjit Kaur were present in the hospital Crl.Appeal No.1163-SB of 1999 11 when dying declaration was recorded. According to defence version, application was given to the SHO to record the statement of Harjit Kaur. Another application was given to the SDJM, Dasuya, requesting to depute Judicial Magistrate to record the statement of Harjit Kaur, but no effort was made to summon the original applications. Only photostat copies of applications were produced and same were marked as Mark A and Mark C. No employee of the Court was summoned to exhibit the order passed by SDJM, Dasuya (Mark D) on the application (Mark C). Occurrence was at about 12.00 noon. Dying declaration (Ex.PA) was recorded at 7.00 PM. Lachhman Singh got admitted Harjit Kaur in the hospital. When husband of Harjit Kaur was very much present in the hospital, then Harjit Kaur had no idea to name the appellant falsely. Defence version of the appellant is that Harjit Kaur caught fire accidentally while cooking in the kitchen, but no one was present at the time of occurrence to state that he had seen the deceased while catching fire while preparing food in the kitchen. Mother of the appellant was present at the time of occurrence as per statement (Ex.PA), but she failed to appear in defence. If father, mother or brothers of the deceased had moved application (Mark A), then any one of them could easily be produced in defence to state that there was a request to the SHO or Magistrate to record the statement of Harjit Kaur. Appellant and Lachhman Singh were residing jointly. Their third brother Prem Singh was residing separately. That means, appellant had committed the crime. No dispute regarding identity of the assailant. Something could be said if third brother Prem Singh was staying with the appellant and Lachhman Singh. In that case, defence counsel was right to argue as to which brother-in-law, whether appellant or Prem Singh, abetted the deceased to commit suicide. Crl.Appeal No.1163-SB of 1999 12 Admittedly, appellant Ram Singh is the real brother of Lachhman Singh (PW6). Harjit Kaur (deceased) wife of Lachhman Singh was the real sister of Gurmit Kaur wife of the appellant. No evidence on the file as to whether Harjit Kaur had any issue from the loins of Lachhman Singh. Ram Singh and Lachhman Singh were residing jointly, whereas their third brother Prem Singh was residing separately. According to the prosecution story, on 3.5.1995, Harjit Kaur was present in her house, then she was given beatings by the appellant by saying as to why she was wearing good clothes and not wearing simple clothes. When Harjit Kaur was taunted by the appellant, then she felt offended and had set herself on fire. Defence version of the appellant is that deceased caught fire accidentally while preparing food in the kitchen. Now only dispute is whether the deceased was abetted to commit suicide or she caught fire accidentally while serving in the kitchen. First contention of learned counsel for the appellant was that Lachhman Singh, appearing as PW6, did not support the prosecution story. So, statement of Lachhman Singh is fatal to the prosecution, but submission of learned counsel is without any force because Lachhman Singh was not present at the time of occurrence. As per statement (Ex.PA), mother of Lachhman Singh was present but after occurrence, she had left the place of occurrence. Mother was not examined by the prosecution as won over by the appellant. She did not appear in defence to state that she was present with the deceased on 3.5.1995 at about 1.00 PM, but deceased had no tussle with the appellant. Appellant was not present on the spot and he had not taunted the deceased by saying as to why she was wearing good clothes and was not wearing simple clothes. If deceased had caught fire accidentally while serving in the Crl.Appeal No.1163-SB of 1999 13 kitchen, then mother of the appellant could easily appear in defence. Non- appearance of mother of the appellant shows that dying declaration (Ex.PA) is genuine one. Lachhman Singh had no issue from the deceased. After the death of Harjit Kaur, Lachhman Singh thought proper not to support the prosecution story because if he was to support the prosecution story, then his real brother, i.e., appellant was in trouble. To save real brother, Lachhman Singh had chosen to resile from his statement under Section 161 Cr.P.C. In the statement under Section 161 Cr.P.C., Lachhman Singh has not stated a word that he was present at the time of alleged occurrence. When Lachhman Singh did not witness the occurrence, then his statement as PW6 is not fatal to the prosecution story. At about 1.00 PM on 3.5.1995, Harjit Kaur was abetted to commit the suicide. After Harjit Kaur had set herself on fire, she was shifted to hospital by Lachhman Singh. Dr. Shavinder Singh while appearing as PW2 stated that Harjit Kaur was admitted in the hospital at 2.30 PM on 3.5.1995. Regarding admission of Harjit Kaur with 80% burn injuries, chit (Ex.PB) was sent to the police station. On receipt of information, SI Madan Lal had approached SDM, Mukerian. Executive Magistrate was deputed to record statement of Harjit Kaur. At the time of occurrence, there was no Court of Judicial Magistrate at Mukerian. Harjit Kaur was lying admitted in Civil Hospital, Mukerian. So, Investigating Officer had rightly approached the SDM, Mukerian, to depute Executive Magistrate to record the statement of Harjit Kaur. As per order of SDM, Mukerian, Amarbir Singh, Naib Tehsildar-cum-Executive Magistrate, Mukerian, had gone to Civil Hospital, Mukerian, and sought opinion of the doctor as to whether patient was fit to make statement or not. At 4.00 PM, vide endorsement (Ex.PA/2), Harjit Crl.Appeal No.1163-SB of 1999 14 Kaur was declared unfit to make statement. Doctor was requested to inform when the patient was fit to make statement. At 6.30 PM, doctor had informed the Executive Magistrate that patient was fit to make statement. Then at 7.00 PM, Executive Magistrate again sought opinion from the doctor regarding fitness of the patient to make statement. Patient was declared fit to make statement at 7.00 PM. Then statement of Harjit Kaur (Ex.PA) was recorded. After statement, again opinion was sought from the doctor, then Dr. Shavinder Singh reported that throughout the statement, patient remained fit. Dr. Shavinder Singh while appearing as PW2 has fully supported the prosecution version. Doctor had no enmity with the appellant. Investigating Officer was also not inimical towards the appellant. So, no question of connivance of the doctor with the Investigating Officer to fabricate and forge dying declaration (Ex.PA). No doubt, there is one discrepancy in the statements of Executive Magistrate and the doctor. Executive Magistrate stated that lady doctor had given opinion regarding fitness of the patient, whereas Dr. Shavinder Singh stated that he had given opinion regarding fitness of patient in view of request of Executive Magistrate. If opinion regarding fitness was given by lady doctor, then lady doctor could easily be produced in defence to state that she was very much present at the time of dying declaration (Ex.PA). Before recording dying declaration (Ex.PA), she had given certificate regarding fitness of patient and after statement, again gave certificate that patient remained fit during her statement. No question to Dr. Shavinder Singh that endorsement regarding fitness and endorsement after the statement that patient remained fit during her statement were in the hands of lady doctor. Dr. Shavinder Singh rather stated that report regarding fitness and certificate after the Crl.Appeal No.1163-SB of 1999 15 statement were by him. According to defence version after dying declaration (Ex.PA), application (Mark A) was given to SHO, Mukerian, to record the statement of Harjit Kaur. Application