Cr. A. No. 160-DB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Cr. A. No. 160-DB of 2006 Date of decision : 10-8-2011 Naib Singh … Appellant Versus. State of Punjab … Respondent CORAM:- HON’BLE MR. JUSTICE SATISH KUMAR MITTAL HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. T. S.Sangha, Sr. Advocate, with Mr. G.S.Dhillon and Mr. J.S.Lalli, Advocates, for the appellant Ms. Gurveen H.Singh, Addl. AG Punjab … ARVIND KUMAR, J: The present appeal is directed against judgment and order dated 10.1.2006 passed by the Sessions Judge, Bathinda, whereby in case FIR No. 47 dated 20.4.2003 registered under Section 302 IPC at Police Station Dialpura, the present appellant-accused Naib Singh has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo RI for six months. In brief, the case of the prosecution is that on 19.4.2003, upon receipt of a slip from the Medical Officer, Civil Hospital, Rampura Phul, about the admission of Mohinder Kaur wife of the present appellant Naib Singh, in the hospital due to burn injuries, ASI Gurcharan Singh went there where he was told that due to her serious condition, she had been referred to Dayanand Medical College and Hospital, Ludhiana. Meanwhile, her Cr. A. No. 160-DB of 2006 2 brother Binder Singh on receipt of the information, reached the Civil Hospital, Rampura Phul, and removed her to Dayanand Medical College and Hospital, Ludhiana and during that course, she told him that her husband Naib Singh had poured kerosene oil on her and lit fire, in order to kill her. The nephew of said Mohinder Kaur, namely, Nirbhai Singh also informed ASI Malkiat Singh about the admission of her aunt(Bua) Mohinder Kaur in the said hospital at Ludhiana. On the same day, ASI Malkiat Singh along with Constables Bhupinder Singh and Balbir Singh in the company of said Nirbhai Singh reached Dayanand Medical College and Hospital, Ludhiana. After obtaining copy of the medico-legal report(MLR) of Mohinder Kaur from the doctor, ASI Malkiat Singh moved an application, Exhibit PM, before the Duty Magistrate, Ludhiana, with a request to record the dying declaration of Mohinder Kaur, on being declared fit, her statement was recorded by Shri D.P.Singla, JMIC, Ludhiana vide Exhibit PG/2. Thereafter, ASI Malkiat Singh also moved an application, Exhibit PJ, seeking opinion of the doctor for recording the statement of Mohinder Kaur. After she was declared fit by the doctor, her statement was recorded by ASI Malkiat Singh. She told that on the previous night, at about 12 O'clock, her husband Naib Singh (present appellant) who was under the influence of liquor, poured kerosene oil on her body and ignited the fire. Her son and brother-in-law Amrik Singh removed her to Civil Hospital. After recording the statement of Mohinder Kaur, Exhibit PN, accused Naib Singh was booked under Section 307 IPC. Thereafter, ASI Malkiat Singh went to the place of occurrence and prepared rough site plan. He took into possession one plastic can of the capacity of 5 litres along with one match-box from the spot and then recorded the statements of the witnesses under Section 161 Cr.P.C. He also took into possession the burnt clothes of Mohinder Kaur. Accused Naib Singh was then formally arrested. Later, on 26.4.2003, the IO received a telephonic message from the Dayanand Medical College and Hospital, Ludhiana, regarding the death of Mohinder Kaur whereupon offence under Section 302 IPC was added. An inquest report on the dead body of Mohinder Kaur was prepared vide Exhibit PF. Post-mortem examination on the dead-body was conducted, besides completing other formalities. Upon completion of investigation of the case, accused- Cr. A. No. 160-DB of 2006 3 appellant was challaned under Section 302 IPC. He pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 Dr. Sanjeev Uppal, PW-2 Dr.Narinder Kumar Bansal, PW-3 Dr. Uggar Singh Sooch, PW-4 Dr. D.S.Pannu, PW-5 HC Karamjit Singh, PW-6 Constable Balbir Singh, PW-7 ASI Malkiat Singh, PW-8 Binder Singh, PW-9 Sh.D.P.Singla,JMIC and PW-10 Surinder Kumar,Clerk of Dayanand Medical College and Hospital,Ludhiana, and after tendering into evidence the report of Forensic Science Laboratory, Exhibit PX, closed its evidence. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting him incriminating evidence qua him to which he pleaded innocence and false implication. He took up the plea that Mohinder Kaur received accidental burn injuries while preparing tea on stove and due to the burn injuries, she died. He stated that he has been falsely implicated in the case by his in-laws and brother-in-law Binder Singh. In defence, he examined DW-1 Amrik Singh and DW-2 Raj Pal Kaur and closed his evidence. The learned Sessions Judge, Bathinda, upon appreciation of evidence adduced on record, vide the impugned judgment and order dated 10.1.2006 held the accused-appellant guilty and accordingly, convicted and sentenced him in the manner indicated above. Hence, the present appeal by him. We have heard learned counsel for the parties. It is a settled proposition of law that the Courts have to be extremely careful when deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. The Courts have to examine dying declaration with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency and it is found to be voluntary and truthful, can be the sole basis for convicting the accused person. In the instant case, there are three dying declarations by Mohinder Kaur, deceased; one before her brother, PW-8 Binder Singh, while being shifted from Civil Hospital, Rampura Phul to Dayanand Cr. A. No. 160-DB of 2006 4 Medical College and Hospital, Ludhiana; second before PW-9 Shri D.P.Singla, Judicial Magistrate I Class, Ludhiana, vide Exhibit PG/2 and third before PW-7 ASI Malkiat Singh vide Exhibit PN. What impresses us most is about the dying declaration that has been recorded by PW-9 Shri D.P.Singla, the learned Magistrate. His statement suggests that on an application, Exhibit PM, moved by PW-7 ASI Malkiat Singh, he visited Dayanand Medical College and Hospital, Ludhiana, and sought fitness of Mohinder Kaur to make statement, whereupon PW-4 Dr. D.S.Pannu vide endorsement Exhibit PG at 6.40 PM certified that Mohinder Kaur is fit to make statement and in return, the learned Magistrate formed his opinion vide endorsement Exhibit PG/1 that she is free to make statement without pressure of any kind and she stated that she is going to make statement voluntarily and is under no pressure and thereupon, recorded her statement recorded vide Exhibit PG/2 at 6.52 PM wherein she stated that her husband is a daily drunkard and keeps on quarrelling the whole night. He had set her on fire after pouring kerosene oil at midnight. Her husband's elder brother and her son took her to Govt. Hospital, Rampura Phul and then her brother brought her here. She duly put her right thumb-impression of her foot as both thumb of her hands were covered with dressing. The learned Magistrate issued certificate, Exhibit PH/1, of her having got recorded her statement voluntarily and put her right thumb of her foot certifying the correctness of her dying declaration. PW-4 Dr. D.S. Pannu has also endorsed the said proceedings and stated that he remained present near Mohinder Kaur and she remained fit during the period her statement was recorded. Her statement, Exhibit PN, was also recorded by ASI Malkiat Singh after obtaining requisite certification from the doctor vide Exhibit PJ/1. This statement is also in consonance with what she had stated before PW-9 D.P.Singla, the learned Magistrate. The oral dying declaration made by PW-8 Binder Sigh is also in the same terms that when she prevented Naib Singh from taking liquor, he started abusing her and then brought a can of kerosene oil and after pouring the same on her, set her on fire. The first argument is that as per bed-head ticket, Exhibit DA, prepared by PW-2 Dr. Narinder Kumar Bansal of Civil Hospital, Rampura Phul, there is a mention of Mohinder Kaur having received burn injuries while preparing tea and a reference has also been made to his cross- Cr. A. No. 160-DB of 2006 5 examination stating that the patient had told him that she was preparing tea and had received burn injuries and thus, counsel has laid stress that the burn injuries were accidental and she had been tutored to make the above- referred dying declarations. This contention does not convince us for variety of reasons; firstly, a bare perusal of bed-ticket, Exhibit DA, does not indicate that it was she who had told the doctor of having received burn injuries accidentally. Undisputedly, she was brought to the hospital by Amrik Singh, her brother-in-law (brother of the accused-appellant) and the possibility cannot be ruled out the said case history had been disclosed by Amrik Singh in order to save the skin of his own brother. Secondly, PW-8 Binder Singh on having received information about the said incident also reached the hospital and had accompanied her to Dayanand Medical College and Hospital, Ludhiana, where she was referred and it was he who infact had got her admitted in Dayanand Medical College and Hospital, Ludhiana, as apparent from Exhibit PA, wherein in the case history, pouring of the kerosene oil and setting her on fire has been mentioned. Thirdly, there was a smell of kerosene oil from the clothes of the deceased. The clothes were sent to Forensic Science Laboratory, Punjab, Chandigarh and the report of the said Laboratory, Exhibit PX, indicates that petroleum products had been detected on the pieces of clothes contained in the parcel and in this back- drop of the facts, had it been an accidental fire from the stove, then there was no occasion of having petroleum products on the clothes and thus, rules out the possibility of accidental fire. Further, Mohinder Kaur had burn injuries on her front side as well as on her back-side and there was singeing of her hair which could also not be due to burn injuries from the stove and such kind of injuries which were found on front and back and also singeing of the hair can only occur when there is pouring of a petroleum product and then set the person on fire. The argument that Mohinder Kaur was also tutored also does not convince us. No doubt, as per case of the prosecution, PW-8 Binder Singh, brother of deceased Mohinder Kaur had reached Civil Hospital, Rampura Phul and accompanied her to Dayanand Medical College and Hospital, Ludhiana but it is itself the case of the defence that Amrik Singh who appeared as DW-1 had accompanied her and in this situation, when brother of the accused-appellant was present, there would not have arisen Cr. A. No. 160-DB of 2006 6 any occasion for Binder Singh to tutor his sister to make a particular statement. The statements of PW-9 D.P. Singla, the learned Magistrate, and so as PW-4 Dr.D.S. Pannu who had given the fitness, suggest that no body was present when her statement was recorded which rules out possibility of any tutoring to her and the endorsement, Exhibit PG/1, referred to above, of the learned Magistrate further authenticates the voluntariness of the statement made by her without any pressure. The statement of PW-9 Shri D.P.Singla inspires confidence. He is a responsible judicial officer. He has no axe to grind and is an independent witness. There is no reason to disbelieve his statement. The oral dying declaration before PW-8 Binder Singh is corroborative to the dying declarations made by deceased Mohinder Kaur before PW-9 D.P.Singla, the learned Magistrate and PW-8 ASI Malkiat Singh as the contents are the same. Their statements are thus, complimentary to each other, in support of the dying declarations. The said dying declarations inspire confidence. In view of the above discussion, the prosecution has been able to adequately prove guilt against the accused-appellant beyond doubt and thus, the accused-appellant has been rightly convicted and sentenced for the offence committed. No interference is called for. The appeal stands dismissed. ( SATISH KUMAR MITTAL ) ( ARVIND KUMAR ) JUDGE JUDGE August 10, 2011. JS