IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * Crl. Appeal No.394-DBA of 2001 Date of decision : February 17, 2010 * * * * * State of Punjab ............Appellant Versus Shindo and another ...........Respondents * * * * * CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. Guveen H. Singh, Additional Advocate General, Punjab for the appellant. Mr. Kundan Lal Chowdhary, Advocate for the respondents. * * * * * JORA SINGH, J. State of Punjab filed this appeal to challenge the judgment dated 1.8.2000 rendered by Sessions Judge, Amritsar in Crl. A. No. 394-DBA of 2001 -2- Sessions Case No. 27 of 1999 arising from FIR No.96 dated 20.3.1999. By said judgment, accused Shindo alias Sawinder Kaur wife of Khajan Singh and Paramjit Kaur wife of Rajinder Kumar were acquitted of the charge levelled against them. Vide order dated 6.8.2001, leave to appeal was granted by this court. In brief, prosecution story is that on 19.3.1999 ASI Gurmit Singh while posted at Police Station Mehta received intimation from Guru Nanak Dev Hospital, Amritsar to the effect that one Balbir Kaur (deceased) was lying admitted in the said hospital with burn injuries. After receiving the said information, police party headed by ASI Gurmit Singh had gone to Guru Nanak Dev Hospital at about 8:15 p.m. Balbir Kaur was found lying admitted in 5th Surgical Ward of the hospital with burn injuries. An application was moved by the police seeking opinion of the doctor regarding fitness of Balbir Kaur to make statement. An effort was also made to secure the presence of Executive Magistrate to record her statement but keeping in view the condition of Balbir Kaur, her statement (Ex.PC) was recorded by ASI, Gurmeet Singh. In her statement, Balbir Kaur stated that about three years back, she was married to Jarnail Singh and from the said wedlock she had two children. In the marriage, her father had given sufficient dowry according to his status. After marriage, her mother- Crl. A. No. 394-DBA of 2001 -3- in-law, Shindo and married sister-in-law Paramjit Kaur harassed her to bring more dowry from her parents. She had brought Rs.1,00,000/- from her father and handed over the same to her in-laws. Today (19.3.1999) at about 2:30 p.m, her mother-in-law Shindo and sister- in-law Paramjit Kaur were present in the house and they asked her to bring more money from her parental house. She replied that her father has already given sufficient dowry as per his status. Then her mother-in-law and sister-in-law picked up a quarrel with her. Shindo poured kerosene on her whereas Paramjit Kaur had set her on fire. Her body was burnt from face to feet. Later on her husband, Jarnail Singh came from the shop. He arranged a vehicle and got her admitted in the Guru Nanak Dev Hospital, Amritsar. Statement of Balbir Kaur (Ex.PC) was attested by Ajit Singh, Sucha Singh and Surender Paul. She had thumb marked her statement. After making endorsement, statement was sent to the police station for registration of case. On the basis of which, formal FIR was recorded. On 20.3.1999, Ajit Singh, father of Balbir Kaur moved an application Ex.PH requesting the Chief Judicial Magistrate, Amritsar to record the statement of Balbir Kaur. The Chief Judicial Magistrate, Amritsar directed the Duty Magistrate to do the needful. Thereupon, JMIC, Sh. Tarsem Mangla went to the hospital. Opinion was obtained from the doctor regarding fitness of the patient to make a statement. Dr. Rahul Gupta reported that patient is fit to make a Crl. A. No. 394-DBA of 2001 -4- statement. JMIC then recorded the statement of Balbir Kaur. Before JMIC, Balbir Kaur stated that about three years back, she was married with Jarnail Singh. Jarnail Singh was running shop of Munyari in the bazar. Out of this wedlock, they have two sons. Her mother-in-law, father-in-law along with one bachelor brother-in-law were residing in the same house along with them. Her mother-in-law had asked her to bring money from her father. Her father had given Rs.1,00,000/- to her mother-in-law. Her sister-in-law Paramjit Kaur who was married near Gurdaspur came to her parental house about 7/8 days earlier. Her husband was at the shop. Father-in-law was also not present in the house. Her mother-in-law Shindo and sister- in-law Paramjit Kaur by pouring kerosene on her set her on fire. Raula was raised. Her husband came for taking meals and had extinguished the fire. After recording the statement, certificate was given by Dr. Rahul Gupta to the effect that patient remained fit throughout her statement. On 23.3.1999, message was received from Guru Nanak Dev Hospital, Amritsar regarding death of Balbir Kaur. After death of Balbir Kaur, offence punishable under Section 304-B IPC was added. ASI Gurmit Singh had gone to the hospital, where dead body was lying. Inquest report was prepared. Dr. Jagdish Singh Gill, PW-1 got conducted the post mortem examination on the dead body of the deceased. Crl. A. No. 394-DBA of 2001 -5- On 25.3.1999, Shindo was arrested and on interrogation, she suffered disclosure statement to the effect that she had concealed a can containing kerosene. As per disclosure statement, a plastic can was got recovered from the specified place with a match box. Same were sealed and sealed parcels were taken into police possession vide recovery memo Ex.PN/1 attested by the witnesses. On return to the police station, case property was deposited with the incharge of malkhana. After the completion of investigation, challan was presented. Accused were charged under Sections 498-A and 304-B IPC. In the alternative under Section 302 read with Section 34 IPC was framed against both the accused. Accused did not plead guilty and claimed trial. Prosecution examined following witnesses to substantiate its charge: PW-1, Dr. Jagdish Singh Gill had conducted post mortem examination on the dead body of Balbir Kaur on 23.3.1999 and found superficial burns all over the body, sparing top and back of head and soles of feet. The extent of burns was about 100%. All the burns were ante-mortem in nature. The probable time that elapsed between injury and death was within about one week and between death and post mortem examination, it was within about 12 hours. In the opinion of the Doctor, the cause of death was shock as a result Crl. A. No. 394-DBA of 2001 -6- of burns which were sufficient to cause death in the ordinary course of nature. PW-2, Ajit Singh is the father of the deceased. He has supported the version of the prosecution by saying that Balbir Kaur was married with Jarnail Singh in the year 1996. Sufficient dowry was given as per his status, but after about six months of the marriage, accused Shindo started making demands to bring more money and deceased Balbir Kaur was harassed by her in-laws for want of dowry. Rs.1,00,000/- was given to the in-laws of Balbir Kaur. On 19.3.1999, telephonic message was received to the effect that Balbir Kaur was burnt and was shifted to Guru Nanak Dev Hospital, Amritsar. He along with his relation had gone to Guru Nanak Dev Hospital, Amritsar. Balbir Kaur was lying on a bed in the hospital. On enquiry, she disclosed that her mother-in-law and sister-in-law had set her on fire. Police also came to the hospital. Statement of Balbir Kaur was recorded. Balbir Kaur had died on 23.3.1999. PW-3, LC, Sawinder Singh tendered his affidavit Ex.PG. PW-4, Tarsem Mangla, Judicial Magistrate Ist Class, Amritsar stated that on 20.3.1999, as per order, he had gone to Guru Nanak Dev Hospital, Amritsar. Balbir Kaur was lying admitted in the ward at Bed No.20. Opinion of the doctor was obtained regarding fitness of Balbir Kaur to make statement. She was declared fit to make a statement. Statement of Balbir Kaur Ex.PJ was recorded. Crl. A. No. 394-DBA of 2001 -7- Statement was thumb marked by Balbir Kaur in token of its correctness. After recording of the statement, doctor again certified that Balbir Kaur remained fit during her statement. PW-5, ASI, Gurmit Singh is the Investigating Officer. After the close of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent. In defence DW-1, Jarnail Singh, husband of Balbir Kaur was examined. He stated that Balbir Kaur deceased was his wife. Balbir Kaur was in the house. He was at his shop. His father and mother had gone to village Udhonangal to attend a function. At 2:00 p.m, he received information that his wife received burn injuries then he had gone to his house. Balbir Kaur was found lying on the ground in a burnt condition. Neighbours were present there. Neighbours had extinguished the fire. On enquiry, Balbir Kaur disclosed to me that while preparing meals on a stove, she caught fire accidentally. Vehicle was arranged then Balbir Kaur was shifted to Guru Nanak Dev Hospital, Amritsar. Till death, Balbir Kaur remained unconscious. Intimation was given to her parents. The trial Court, after hearing learned Public Prosecutor for the State, learned defence counsel for the accused and perusing the evidence on the file, acquitted both the accused of the charge levelled against them. Crl. A. No. 394-DBA of 2001 -8- We have heard learned State counsel, learned counsel for the respondents and have gone through the evidence on file. Learned counsel for the appellant-State argued that in this case, the trial court has committed grave illegality while acquitting both the accused, namely Shindo alias Sawinder Kaur and Paramjit Singh, the mother-in-law and sister-in-law, respectively, of deceased Balbir Kaur, in spite of the fact that the prosecution has fully established that the homicidal death of Balbir Kaur has been committed by both the accused. She has referred to two dying declarations, Ex.PC and Ex.PJ, made by the deceased. The first dying declaration (Ex.PC), made by Balbir Kaur, was recorded by ASI Gurmit Singh (PW.5) on 19.3.1999 in the Hospital and her second statement (Ex.PJ) was recorded by Judicial Magistrate Ist Class, Amritsar, in the Hospital at 1.50 PM on 20.3.1999. In both these statements, Balbir Kaur had named both the accused, who were harassing her to bring more money and when their demand was not fulfilled, they put her on fire by sprinkling kerosene oil upon her. Learned counsel argued that both the dying declarations were recorded after obtaining the opinion of the Doctor regarding the fitness of the deceased to make the statement. She further argued that the allegations made by Balbir Kaur in both the dying declarations have been further corroborated by the statement of Ajit Singh (PW.2), who had stated that when he went to the Hospital, his Crl. A. No. 394-DBA of 2001 -9- daughter Balbir Kaur told him that both the accused had set her on fire. Learned counsel, while referring to the medical evidence, further submitted that during the post-mortem examination, 100 % burn injuries were found all over the body of the deceased and such extensive burn injuries were not possible in a suicidal death. Learned counsel argued that the trial court has discarded both the dying declarations by taking them as doubtful, merely on the basis of surmises and conjectures, without properly appreciating the facts and circumstances of the case. Learned counsel further argued that even if for the sake of arguments, it is taken that the prosecution has failed to prove the commission of homicidal death of the deceased by the appellants, even then it has been fully established on record that both the accused have committed dowry death of Balbir Kaur. She argued that undisputedly, the death of Balbir Kaur was caused by burn injuries within seven years of her marriage. Further, there is sufficient evidence, which prove that the deceased was subjected to harassment by the accused in connection with demand of dowry and such cruelty and harassment of the deceased was soon before her death. In these circumstances, the prosecution has completely established the offence under Section 304-B IPC, but the trial court, without any justification and reason, has not considered this aspect of the matter and has acquitted both the accused even from the charge of committing the offences under Sections 498A and 304B of Crl. A. No. 394-DBA of 2001 -10- the IPC. Therefore, the impugned judgment of the learned trial court is not sustainable. On the other hand, learned counsel for the respondents- accused has vehemently argued that in the facts and circumstances of the case, the trial court was fully justified in acquitting both the accused, as the prosecution has not been able to prove the commission of homicidal death or the dowry death of the deceased by the respondents-accused. Learned counsel, while referring to the medical evidence, which indicates 100 % burn injuries all over the body of the deceased, submitted that when the deceased remained admitted in the Hospital and when she was on a drip, she was not in a position to make any statement. He argued that there are material contradictions in both the dying declarations, allegedly made by the deceased before the police and the Judicial Magistrate, on the basis of which the trial court has rightly framed an opinion that both the dying declarations were doubtful and it was not safe to rely upon those dying declarations to convict two persons for the offence under Section 302 IPC. Learned counsel further argued that at the time, when both the dying declarations were recorded, the parents and relatives of the deceased were present in the Hospital. The possibility of making these statements by the deceased under their influence cannot be ruled out. Learned counsel also argued that in the instant case, there is no sufficient and reliable evidence to the effect that Crl. A. No. 394-DBA of 2001 -11- soon before the un-natural death, the deceased was subjected to any harassment in connection with demand of dowry. He argued that there was no reason for the mother-in-law and sister-in-law to demand more dowry from the deceased or her parents. Therefore, the evidence led by the prosecution in the instant case is not sufficient to convict the respondents-accused, even for the offence of dowry death. Learned counsel further argued that in the instant case, as per DW.1 Jarnail Singh, husband of the deceased, when his wife Balbir Kaur was preparing meals on a stove, she had caught fire accidentally. At that time, only neighbourers were present. They extinguished the fire. He further stated that he was present on his shop and he was called. He came and took his wife to the Hospital. Learned counsel further argued that the trial court has rightly believed the defence version and acquitted both the respondents- accused. In these circumstances, learned counsel for the respondents-accused argued that the instant case is not a fit case, where this Court should interfere in the judgment of acquittal of both the respondents. It has been established on record that in the instant case, the deceased has died due to burn injuries, an un-natural death. PW.1 Dr. Jagdish Singh Gill, who conducted the post mortem examination of the deceased, has categorically stated that the cause of death in this case was shock as a result of burns, which were Crl. A. No. 394-DBA of 2001 -12- sufficient to cause death in the ordinary course of nature. At the time of post-mortem examination, he found 100 % burn injuries all over the body of the deceased, which were ante-mortem in nature. Now, the question arising for consideration is : Whether the death in the instant case was homicidal, suicidal or accidental ? Undisputedly, the occurrence had taken place on 19.3.1999 at about 2.30 p.m, in the matrimonial house of the deceased. It has come in evidence that besides the deceased, her father-in-law, mother-in-law, husband and younger brother-in-law were residing in the house. The husband was doing the business and at the time of the alleged occurrence, he was present at his shop. As per the prosecution, at the time of the alleged occurrence, the mother-in-law and sister-in-law of the deceased were present in the house, whereas as per the defence, the deceased was alone in the house. As per the prosecution as well as the defence, the husband Jarnail Singh took Balbir Kaur to the Hospital. On receiving the information, the police came to the Hospital. ASI Gurmit Singh (PW.5), after obtaining the fitness certificate from the Doctor, recorded the statement of Balbir Kaur. The said statement was signed by Ajit Singh (PW.2), father of the deceased, Sucha Singh son of Hari Singh, uncle of the deceased, and one Surinder Pal Mohindru, a social worker. In the said statement (Ex.PC), Balbir Kaur stated that she was being harassed by her mother-in-law Shindo and Crl. A. No. 394-DBA of 2001 -13- sister-in-law Paramjit Kaur to compel her to bring more money. On the day of occurrence, they were present in the house and they asked her to bring more money from her parents. She replied that her father had already given enough dowry and only two months earlier, he had paid Rs. one lack to them. Upon this, they picked up quarrel with her. Her mother-in-law Shindo had poured kerosene oil on her body and her sister-in-law Paramjit Kaur had set her on fire with match box. Lateron, her husband came to the house, who arranged for vehicle and admitted her in the Hospital. The second statement (Ex.PJ) was made by the deceased on 20.3.1999 at 1.50 PM, before Judicial Magistrate (PW.4). In that statement, she had stated that her mother-in-law had asked her to bring more money from her father. She did not make any allegation that her sister-in-law Paramjit Kaur, who came to live with them in the last week, demanded any dowry from her. In that statement, she had also not stated that at about 2.30 p.m., her mother-in-law and sister-in-law had asked her to bring more money from her parental home and when she said that they had already given enough dowry, then a quarrel had taken place between them and thereupon, her mother-in- law had poured kerosene oil on her body and her sister-in-law had set her on fire with match box. In the second statement (Ex.PJ), she stated that her mother-in-law Shindo and sister-in-law Paramjit Kaur had poured the kerosene oil on her body and set her on fire. She had Crl. A. No. 394-DBA of 2001 -14- raised much noise and in the meantime, her husband had come to house for taking meal and he extinguished the fire. However, in her first statement (Ex.PC) she did not state that her husband had extinguished the fire. It has come on record that both the statements were recorded after getting the opinion of the Doctor about the fitness of the victim to make the statement. But Dr. Rahul Gupta, who gave the opinions about the fitness of the patient to make statement, was neither cited nor examined as a witness by the prosecution. The trial court, while taking into consideration the fact that there were 100 % burn injuries all over the body of the deceased, doubted that at the time of making the statements, her mental condition remained fit to make the statement. While comparing the two dying declarations, we also find certain contradictions, regarding the manner in which the occurrence has taken place. In the first dying declaration (Ex.PC), it has been stated that just before the occurrence, a quarrel had taken place between the deceased and both the accused persons, in connection with demand of more money, whereas in the second dying declaration (Ex.PJ), no such allegation was made by the deceased. Further, in the first statement, specific role was attributed to both the accused, but in the second statement, no specific role was attributed. In Gopal v. State of M.P., 2009 (2) All India Criminal Law Reporter, 321, the Hon'ble Supreme Court has held that the law Crl. A. No. 394-DBA of 2001 -15- relating to appreciation of evidence in case of more than one dying declaration is well established. It is not the plurality of the dying declarations, but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. If the deceased had several opportunities of making such dying declarations, then the statements should be consistent. If some inconsistencies are noticed between the two dying declarations, the court has to carefully scrutinize the nature of the inconsistencies, in light of the various surrounding facts and circumstances. In light of the aforesaid principles, we have examined the two dying declarations in this case and are of the opinion that there are discrepancies in these statements with regard to the manner, in which the occurrence has taken place. As noticed above, in the first dying declaration, the deceased had stated that before the kerosene oil was poured on her body and she was set on fire, a quarrel had taken place between her and the accused, but in the second dying declaration, no such statement was made. In the first dying declaration, specific role was attributed to both the accused to the effect that accused Shindo had poured kerosene oil on the body of the deceased and accused Paramjit Kaur had set her on fire with match box. However, in the second dying declaration, no specific role was attributed and it was stated that both the accused had poured Crl. A. No. 394-DBA of 2001 -16- the kerosene oil on her body and set her on fire. Similar is the statement of PW.2 Ajit Singh made in the court. He stated that when he reached the Hospital, his daughter told him that both the accused had set her on fire. He also did not state about any quarrel between the accused and the deceased, before the accused put the deceased on fire. Coupled with these material discrepancies, it has come on record that at one point of time, PW.2 Ajit Singh had moved an application (Ex.PH) to Chief Judicial Magistrate, Amritsar, on the basis of which the second statement of his daughter Balbir Kaur was recorded by Judicial Magistrate Ist Class, Amritsar. In that application, it was stated that Jarnail Singh, the husband of deceased Balbir Kaur, had set her on fire and the police was not taking any action against him. In that application, no allegation against the mother-in-law Shindo and the sister-in-law Paramjit Kaur was made even with regard to the harassment by them to the deceased in connection with demand of dowry. The said application was moved by PW.2 Ajit Singh, even after he had met his daughter Balbir Kaur in the Hospital and in his presence, the first dying declaration was recorded by ASI Gurmeet Singh. This fact also creates doubt in the mind of the Court about the manner, in which the occurrence has taken place i.e. whether the death of Balbir Kaur was homicidal or suicidal. Secondly, it has come on record that the deceased was having 100 % burn injuries all over the body and the Doctor, who declared her fit to make the statement, at the time of Crl. A. No. 394-DBA of 2001 -17- recording of both the dying declarations, has not been examined. Thus, there is doubt about the statement of the deceased with regard to the manner, in which she was burnt. To that extent, the version of homicidal death set up by the prosecution appears to be doubtful and it does not inspire confidence to believe the entire version. However, the dying declarations made by the deceased to the extent that the deceased was being harassed by the respondents-accused in connection with demand of dowry inspire confidence. The said harassment was just before the un-natural death, because it has also come in the evidence of