IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 19-DB of 2000 DATE OF DECISION : 05.03.2009 Paramjit alias Pamma .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. K.D.S. Hooda, Advocate, for the appellant. Mrs. Manjari Nehru Kaul, DAG, Punjab, for the respondent. * * * SATISH KUMAR MITTAL , J. 1. Accused Paramjit alias Pamma has filed this appeal against the judgment and order dated 18.12.1999, passed by Sessions Judge, Jalandhar, in Sessions Case No. 60 of 1998, arising out of FIR No. 250 dated 7.9.1998, registered at Police Station Nakodar, under Section 302 IPC, whereby the accused has been convicted and sentenced to imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for further period of six months. 2. In brief, the prosecution version is that about 18 years prior to the day of occurrence (7.9.1998), Parveen Rani (deceased) was married to Paramjit alias Pamma (accused). It was alleged that on the day of Crl. A. No. 19-DB of 2000 -2- occurrence, at about 5.00 P.M., her husband poured kerosene oil upon her and put her on fire, when she along with her two sons, namely Jaswinder and Kulwinder, aged about 15 years and 11 years respectively, was present in her house. Immediately thereafter, she was taken to Civil Hospital, Nakodar, by her father-in-law Gian Chand, where at 6.30 P.M., the Doctor sent ruqa (Ex.PH) to the police, upon which ASI Avtar Singh (PW.11) reached Civil Hospital, Nakodar and moved an application (Ex.PA) to obtain opinion of the Doctor regarding the fitness of the victim, namely Parveen Rani, to make the statement. At 6.45 P.M., the Doctor Subhash Agnihotri (PW.1), vide endorsement (Ex.PA/1), declared the victim fit to make statement. Thereafter, at 7.10 P.M., ASI Avtar Singh recorded her statement (Ex.PB), in which she stated that her husband was a drunkard and used to beat her. On 7.9.1998, she along with her two sons was present in the house. At about 5.00 P.M., her husband came from outside and got purchased kerosene oil for Rs. 5/- through her son Kulwinder. Then her husband gave her beatings and dragged her to the room and after pouring kerosene oil upon her, he set her on fire and fled away from the room, after opening the door. On raising alarm by her, her both sons came inside from the courtyard and extinguished the fire by putting clothes on her. On making hue and cry by her children, several other persons of the Mohalla also gathered and she was taken to hospital. This statement of the victim was thumb marked by her and witnessed by Dr. Subhash Agnihotri. After making endorsement (Ex.PB/2) on the statement, ASI Avtar Singh sent the Crl. A. No. 19-DB of 2000 -3- same to Police Station, Nakodar, on the basis of which formal FIR Ex.PB/1 was registered at 7.25 P.M., under Section 307 IPC. 3. Immediately thereafter, on the same day i.e. 7.9.1998, looking to the serious condition of the victim, Judicial Magistrate Ist Class, Nakodar was requested to record her statement at Civil Hospital, Nakodar. Accordingly, Shri Harbans Singh (PW.10), Judicial Magistrate Ist Class, Nakodar, reached the Hospital and made an application (Ex.PT) to know the fitness of Parveen Rani to make a statement. At 7.45 P.M., Dr. Subhash Agnihotri declared her fit to make statement, vide his endorsement Ex.PT/1. Thereafter, at 7.55 P.M., statement (Ex.PU) of the victim was recorded by the Judicial Magistrate, which if translated in English reads as under : “Question - What happened and when happened? The incident taken place today at 5.00 P.M. I and my sons namely Jaswinder and Kulwinder were present at home. My husband came from outside. He then took me inside while beating and asked my son Kulwinder to bring kerosene oil and gave him Rs. 5/- to bring oil and he had brought the oil in a bottle. My husband dragged me inside and set me on fire after putting oil on me and he had run away. My sons Jaswinder and Kulwinder had extinguished the fire. Thereafter, people gathered there on hearing my hue and cry. My father-in-law Gian Chand brought me to the hospital in a motor vehicle. He had set me ablaze after pouring kerosene oil due to the reason because I used to stop him from taking liquor.” Dr. Subhash Agnihotri made his endorsement Ex.PU/1 to the effect that the victim remained fit during the statement. The statement was then sealed by Crl. A. No. 19-DB of 2000 -4- the Judicial Magistrate and sent to the Ilaqa Magistrate. During investigation, ashes of burnt clothes of the victim as well as one Chunni and one half burnt gunny bag, one empty plastic bottle of kerosene oil and a match-box were recovered from the spot and the same were taken into police possession vide recovery memo Ex.PJ. 4. On the next day i.e. on 8.9.1998, the victim Parveen Rani expired at 8.05 P.M., regarding which intimation (Ex.PC) was sent to the Police Station Nakodar and vide DDR No. 29 dated 8.9.1998 (Ex.PX), recorded at 9.40 P.M., offence was changed to Section 302 IPC. During investigation, inquest report Ex. PG was prepared. The post-mortem of the deceased was conducted by Dr. Rajesh Arora (PW.3) and according to him, she had died between 6.30 P.M. on 7.9.1998 to 9.40 P.M. on 8.9.1998. 5. After completion of investigation, the challan was filed against the accused and charge under Section 302 IPC was framed, to which the accused did not plead guilty and claimed trial. 6. In support of its case, the prosecution examined 11 witnesses, including PW.1 Dr. Subhash Agnihotri, who gave opinion Ex.PA/1 that the victim Parveen Rani was fit to make statement and who was also a witness to the statement (Ex.PU) recorded by the Judicial Magistrate, PW.2 Dr. Dharam Pal, who sent ruqa (Ex.PC) after the death of Parveen Rani, PW.3 Dr. Rajesh Arora, who conducted the post mortem examination on the dead body of the deceased, PW.5 Kulvinder and PW.6 Jasvinder, sons of the deceased, who did not support the prosecution version and were declared Crl. A. No. 19-DB of 2000 -5- hostile, PW.10 Shri Harbans Singh, Judicial Magistrate, who recorded the dying declaration Ex.PU and PW.11 ASI Avtar Singh, the Investigating Officer. 7. In his statement under Section 313 Cr.P.C., the appellant- accused denied all the allegations appearing against him in the evidence led by the prosecution. He pleaded innocence and stated that his wife wanted him to live separate from his parents and when his father separated him by constructing a wall in the house, then his wife insisted that he should sell the house and shift to her parental village, to which he was not agreeing. He further stated that on the day of occurrence, he and his son Kulwinder had gone to bring fodder for the cattle and his wife caught fire accidentally and on the instigation of her sister Swarni and Bua, she had made statement against him. In defence, the accused examined DW.1 Shadi Ram, who supported his defence version. 8. The trial court, after considering the evidence led by the prosecution and the accused and while relying upon the dying declaration (Ex.PU) made by Parveen Rani before the Judicial Magistrate, which was found to be reliable and truly recorded, convicted and sentenced the accused, as indicated above. Hence, this appeal. 9. Learned counsel for the appellant argued that in the instant case, PW.5 Kulwinder and PW.6 Jaswinder, sons of the deceased, who at the time of the alleged occurrence were undisputedly present in the house along with the deceased, did not support the prosecution version at all. Crl. A. No. 19-DB of 2000 -6- PW.5 Kulwinder Singh, while appearing in the Court, stated that there was standing dispute between their mother and father with regard to the shifting of residence from Navi Abadi, Nakodar to village Bajra. PW.5 Kulwinder stated that on the day of occurrence, he and his father had gone to bring fodder and in their absence, the alleged occurrence had taken place. He had not seen any occurrence. Learned counsel for the appellant submitted that the version given by these two witnesses cannot be ignored, because these two children could not tell lie. He further submitted that there are certain contradictions in the statement of PW.4 HC Amar Singh, a witness to the recovery memo Ex.PJ, and PW.11 ASI Avtar Singh, the Investigating Officer. In this regard, he pointed out that PW.4 stated that after receiving the intimation from the Hospital, the police first went to the place of occurrence, where they remained for four hours, whereas PW.11 stated that after receiving the information, he first went to the Hospital and recorded the statement of the victim. Learned counsel referred to another contradiction with regard to the time of reaching of ASI Avtar Singh in the Hospital. PW.11 ASI Avtar Singh stated that he reached Civil Hospital, Nakodar at 6.05 P.M., whereas PW.1 Dr. Subhash Agnihotri stated that on the application moved by ASI Avtrar Singh, at 6.45 P.M., he declared the victim fit to make statement. Learned counsel further pointed out that PW.1 Dr. Subhash Agnihotri did not state that the Judicial Magistrate recorded the statement of the victim in his presence or that he gave any opinion regarding the fitness of the victim to make statement before the Judicial Magistrate. Crl. A. No. 19-DB of 2000 -7- On the other hand, PW.10 Shri Harbans Singh, Judicial Magistrate, stated that he recorded the dying declaration of the victim in the presence of Dr. Subhash Agnihotri, after obtaining his opinion regarding fitness of the victim to make statement. Learned counsel further pointed out that in the cross-examination, PW.10 Shri Harbans Singh, Judicial Magistrate, stated that he reached Civil Hospital, Nakodar, on receipt of telephonic message from ASI Avtar Singh, whereas PW.11 ASI Avtar Singh stated that he had sent an application to the Judicial Magistrate for recording the statement of the victim and on that application, the Judicial Magistrate reached the Hospital. While referring to these contradictions (which according to learned counsel for the appellant are material and go to the root of the matter), learned counsel submits that the dying declaration (Ex.PU) allegedly made by victim Parveen Rani is not reliable and conviction of the appellant on the basis of such dying declaration cannot be sustained. 10. On the other hand, learned counsel for the respondent-State submits that in this case, the prosecution has led sufficient evidence, on the basis of which the trial court has rightly convicted the appellant for the alleged offence. She submits that the contradictions, pointed out by learned counsel for the appellant, are minor in nature and on the basis of the same, the dying declaration, recorded by the Judicial Magistrate, after obtaining the opinion of the Doctor regarding fitness of the victim, in accordance with law, cannot be discarded. She submits that the dying declaration (Ex.PU) recorded by the Judicial Magistrate does not suffer from any infirmity and Crl. A. No. 19-DB of 2000 -8- the trial court has rightly relied upon the same, while convicting the appellant. Hence, no interference in the impugned judgment and order is required. 11. After hearing the arguments of learned counsel for the parties and perusing the impugned judgment and order, we do not find any merit in the instant appeal. In this case, the alleged occurrence has taken place on 7/9/1998 at about 5.00 P.M., in the house of the accused, situated in Navi Abadi, Nakodar. Immediately, after the occurrence, the victim was taken to Civil Hospital, Nakodar. Ruqa Ex.PH was sent to Police Station at 6.30 P.M., informing the police that Parveen Rani wife of Paramjit has been admitted in the Hospital in serious condition in Emergency Ward. On receiving the said ruqa, ASI Avtar Singh (PW.11) reached Civil Hospital, Nakodar and moved application Ex.PA, seeking opinion of the Doctor about fitness of the victim to make statement. On that application, Dr. Subhash Agnihotri (PW.1) gave his opinion (Ex.PA/1) at 6.45 P.M., declaring the victim fit to make statement. Thereafter, ASI Avtar Singh, in the presence of Dr. Subhash Agnihotri, recorded the statement (Ex.PB) of the victim, which was also signed by Dr. Subhash Agnihotri. In this statement, victim Parveen Rani stated that on that day i.e. 7.9.1998, at about 5.00 P.M., her husband Paramjit alias Pamma poured kerosene oil upon her and set her on fire. It has been proved from the statement of PW.1 Dr. Subhash Agnihotri and PW.11 ASI Avtar Singh that the said statement was duly recorded by ASI Avtar Singh in the presence of Dr. Subhash Agnihotri, after obtaining his Crl. A. No. 19-DB of 2000 -9- opinion. In our opinion, the said statement can be taken as dying declaration of the deceased. A statement made by an injured to a police officer under Section 161 Cr.P.C., can be used as a dying declaration, if such person dies subsequently. Since the condition of the victim appeared to be serious, ASI Avtar Singh sent a request to the Judicial Magistrate to record the statement of the victim. Thereupon, at 7.45 P.M., Shri Harbans Singh, Judicial Magistrate Ist Class, Nakodar (PW.10) reached the Hospital and on his request Ex.PT, Dr. Subhash Agnihotri declared the victim fit to make statement vide endorsement Ex.PT/1. Thereafter, statement (Ex.PU) of victim Parveen Rani was recorded by the Judicial Magistrate. Shri Harbans Singh, Judicial Magistrate, while appearing in the witness box as PW.10, categorically stated that he recorded the statement of Parveen Rani, after Dr. Subhash Agnihotri had declared her fit to make statement. He further stated that Parveen Rani was fully conscious and remained fit to make statement throughout, when her statement was recorded and Doctor had made endorsement (Ex.PU/1) to this effect. He further stated that Parveen Rani voluntarily made the said statement without any pressure, and except the Doctor, no other person was present at the time of recording of the said statement. He further stated that before recording the statement, he had disclosed his identity to the victim and had specifically asked her that she was not under any pressure to make any statement. 12. We have carefully scrutinized the statements of PW.1 Dr. Subhash Agnihotri, PW.10 Shri Harbans Singh, Judicial Magistrate Ist Crl. A. No. 19-DB of 2000 -10- Class, Nakodar and PW.11 ASI Avtar Singh and find that the statements of these witnesses are consistent and trust-worthy. It is true that in this case, Kulwinder and Jaswinder sons of the deceased, who at the time of the alleged occurrence were aged about 11 years and 15 years, while appearing in the witness box as PW.5 and PW.6, respectively, had not supported the prosecution version, but both these witnesses have admitted that there was a dispute between their mother and father. Even as per the statement of Parveen Rani, her two sons had not seen the occurrence and they came on the scene after she was put on fire by her husband. They only tried to extinguish the fire. The trial court has considered this aspect of the matter and has come to the conclusion that it is quite natural that when father is facing trial for committing murder of mother, normally the sons will not support the prosecution case against their father in the court. Even otherwise, in our opinion, the prosecution has proved the guilt against the accused beyond shadow of a reasonable doubt, on the basis of two dying declarations i.e. Ex. PB and Ex.PU, which have been duly proved by PW.11 ASI Avtar Singh and PW.10 Shri Harbans Singh, Judicial Magistrate Ist Class, Nakodar. Both the dying declarations Ex.PB and Ex.PU were duly thumb marked by the victim and these were also signed by Dr. Subhash Agnihotri. After recording the dying declaration Ex.PU, the same was sealed and sent to the Ilaqa Magistrate and it was opened only in the court at the time of recording of the statement of the Judicial Magistrate as PW.10. In his cross-examination, no suggestion was put to him that opinion of the Crl. A. No. 19-DB of 2000 -11- Doctor was not obtained regarding fitness of the victim to make statement. PW.11 ASI Avtar Singh also supported the fact regarding presence of Dr. Subhash Agnihotri, at the time of recording of the dying statement by the Judicial Magistrate. These facts falsify the argument raised by learned counsel for the appellant that the dying declaration Ex.PU was not recorded in the presence of Dr. Subhash Agnihotri, merely because when appearing as a prosecution witness in the court, he did not state so. In our opinion, both the dying declarations can not be said to be the result of tutoring, prompting or imagination, as both of these were correctly recorded by PW.11 ASI Avtar Singh and PW.10 Shri Harbans Singh, Judicial Magistrate Ist Class, Nakodar in the presence of the Doctor, after obtaining his opinion regarding the fitness of the victim to make statement and during the period of recording the statements, the victim remained fully fit to make statement. It has also been proved that when the dying declaration was recorded, there was no pressure upon her nor any body of her family was present. At the time of recording of the said dying declaration, only the Judicial Magistrate and the Doctor were present. Therefore, we do not find any illegality or infirmity in the recording of dying declaration. In our opinion, on the basis of such dying declarations, the trial court was fully justified in convicting the appellant for the alleged offence. 13. In view of the above, we do not find any ground to interfere in the impugned judgment and order and the same are upheld. Consequently, the instant appeal is dismissed. The appellant, who is on bail, is directed to Crl. A. No. 19-DB of 2000 -12- surrender to custody to serve the remainder of sentence. ( SATISH KUMAR MITTAL ) JUDGE March 05, 2009 ( DAYA CHAUDHARY) ndj JUDGE