CRIMINAL APPEAL NO. 455-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 24, 2009. Parties Name Dilbagh Singh and others ..APPELLANTS VERSUS State of Punjab ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Aman Chaudhary, Advocate, for the appellants Mr. D.S.Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. This appeal has been filed against judgment and order dated August 8, 2001, vide which Dilbagh Singh, appellant No. 1( A-1) was convicted for commission of an offence punishable under Section 302 IPC, whereas Hardial Singh alias Dalla Singh, Joginder Singh and Gurbachan CRIMINAL APPEAL NO. 455-DB OF 2001 -2- Kaur, appellants No. 2 to 4 respectively (A-2 to A-4) were convicted for commission of above said offence with the aid of Section 34 IPC. All the appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each with a default clause. The appellants are husband, brother-in-law, father-in-law and mother-in-law respectively, of the deceased, namely, Asha Rani alias Ashu. It was allegation against them that they, in the intervening night of 20th and 21st August, 1999, caused burn injuries to Asha Rani, due to which she died on September 19, 1999. Case of the prosecution, as noted by the trial Court in para No. 2 of the impugned judgment, reads thus: “Briefly stated, the facts of the prosecution case are that on 21.8.1999, a police party headed by Inspector Kuldip Singh was present at Bus Stop of village Nag Kalan, where Harbhajan Singh accompanied by his father Nazar Singh approached the Inspector and got recorded his statement to the effect that he is resident of Mohalla Rajinder Nagar, Batala Road, Amritsar. He has one brother and four sisters, out (whom) three have already been married and one is unmarried. It is further alleged that his sister Asha Rani alias Ashu was married to Dilbagh Singh accused about 1 ½ years back. At the time of her marriage, they had given to her sufficient dowry as per their capacity. It is further alleged that out of this wedlock, a son was born out to her who is aged about three months and his sister was again pregnant. After the marriage, the in-laws of his sister started maltreating her for bringing inadequate dowry. Accused Dalla, CRIMINAL APPEAL NO. 455-DB OF 2001 -3- brother-in-law (Jeth) of his sister was unmarried and he was not doing any work. In order to resolve the abovesaid problem of his sister, the complainant and his family members procured some land in village Nangli and they also helped her to construct her own house over there. They also contributed some amount for this purpose and rest of the expenses for construction of the house were incurred by his sister by disposing of her ornaments. The complainant further alleged that all the accused i.e. Husband Dilbagh Singh, his brother Dalla and father-in-law and mother-in-law of his sister Asha Rani used to give her frequent beating and pressurising her to bring more cash amount. His sister told all this to the wife of the complainant , namely, Harpreet Kaur who further told the same to the complainant. Faced with this situation, the complainant had gone to his sister on 20.8.1999 to enquire about her. She told him that even in the morning, her in-laws had beaten her on account of her spending Rs. 50/- on grossery for the house. She also expressed that she apprehends that she may not be killed by her in-laws. It is further alleged that on 21.8.1999, when the complainant had gone to his place of work, there he received a message that his sister Ashu has been doused with kerosene oil on the intervening night of 20/21.8.1999. The complainant and his father reached the hospital where Asha Rani was admitted for treatment. She was found to be conscious and she told them that father-in-law and mother-in-law caught her arms, Dalla accused gagged her CRIMINAL APPEAL NO. 455-DB OF 2001 -4- mouth with a piece of cloth and Dilbagh Singh accused put kerosene oil on her and set her on fire.” Process of criminal law justice was put in motion on a statement (Ex. PH), made by Harbhajan Singh (PW7), brother of the deceased, which led to registration of an FIR (Ex. PH/2) in Police Station Majitha at 9.10 PM on August 21, 1999. The deceased was admitted in the Hospital by Dr. Jaswant Singh (PW2) on August 21, 1999, with burn injuries. The Investigating Officer – Inspector Kuldip Singh (PW9), after registration of the FIR, went to the spot on August 22, 1999, and took into his possession one match box and one plastic cane against recovery memo Ex. Pj . He also got prepared rough site plan with correct marginal notes. He went to the Hospital and moved an application regarding fitness of the patient on August 22, 1999. The doctor declared Asha Rani unfit to make the statement vide endorsement Ex. PK/1. He also recorded statements of the prosecution witnesses. He again went to the Hospital on August 23, 1999, however, returned back for want of availability of the concerned doctor. On August 24, 1999, he again moved an application to know about fitness of the patient. The Doctor declared the patient fit to make statement. In the meantime, it appears that investigation was taken over by SI Paul Singh, who moved an application on August 25, 1999, to the Chief Judicial Magistrate at Amritsar, with a request that statement of Asha Rani be recorded. Application was marked to Manjot Kaur (PW13), Judicial Magistrate Ist Class, Amritsar. She went to the Hospital and moved an application to know about fitness of the patient. Vide opinion Ex. PT, the doctor declared Asha Rani fit to make statement. To know her mental state, CRIMINAL APPEAL NO. 455-DB OF 2001 -5- the witness named above put some questions to her. Thereafter, Asha Rani's statement (Ex. PT/1) was recorded by Mrs. Manjot Kaur, Judicial Magistrate Ist Class. The statement was read over to Asha Rani and she put her left and right foot thumb -impression on the statement. Endorsement in that regard was made by the witness, named above, and also by the Doctor. Asha Rani succumbed to her injuries on September 19, 1999. The Investigating Officer prepared the inquest report and sent the dead body for post-mortem examination, which was conducted by Dr. Gurmanjit Rai (PW1). This witness has specifically stated that the deceased remained admitted in the hospital from August 21, 1999, to September 19, 1999. It was further deposed that superficial to deep burns were present on the forehead, face, upper-limbs, front and back of abdomen and chest. Soles of both feet and outer aspect of right lower limb , superficial and deep slough had fallen of at places with peeling of skin. The burns on the body were to the extent of 60%which were ante mortem in nature. Witness also stated that cause of death was septicemia/ shock, as a result of burn injuries, which were sufficient to cause death in ordinary course of nature. The Investigating Officer, on completion of investigation, submitted final report in Court for trial. It is necessary to mention here that initially, FIR was recorded under Sections 307 and 498-A IPC. However, after death of Asha Rani on September 19, 1999, offences punishable under Sections 302/304-B IPC were added in the FIR. The appellants were charge-sheeted for the above said offences, to which they pleaded not guilty and claimed trial. The prosecution produced 14 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellants – accused were recorded CRIMINAL APPEAL NO. 455-DB OF 2001 -6- under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them. They controverted the same, claimed innocence and false implication. However, they led no evidence in defence. It was also averred by the appellants that Dilbagh Singh (A-1) was residing with deceased separately from the other appellants – accused. The trial Court, on appraisal of evidence, found the appellants – accused guilty , convicted and sentenced them, as mentioned in earlier part of this order. Hence this appeal. It is an admitted fact on record that the marriage of appellant No. 1 with the deceased was solemnised about 1 ½ years before the date of occurrence. Out of the wed lock, one child was born. It has also come on record that on the date of occurrence, deceased was pregnant. The trial Court, after noting contents of the statements made by Harbhajan Singh (PW7), brother of the deceased, and Nazar Singh (PW8), father of the deceased, rightly held that the deceased was being maltreated by her husband , throughout, from the date of her marriage. Both the above named PWs have reiterated allegations of the prosecution, as mentioned in earlier part of this order. They have specifically stated that there was a dispute in the family. Dilbagh Singh accused came to them for financial help. He was paid Rs. 5,000/- in cash. Deceased also sold her jewelry to construct a separate house. It was further stated that the land was purchased in the adjoining village Nangli and separate house was constructed thereon by the appellant and the deceased in the year 1996. It has also come on record that appellants No. 2 to 4 were residing at village Sham Nagar. It is also an admitted fact that the occurrence had taken place at village Sham Nagar. Statement of the deceased was recorded by Mrs. Manjot Kaur , Judicial Magistrate Ist Class, (PW13). Reading of the statement indicates CRIMINAL APPEAL NO. 455-DB OF 2001 -7- that before recording it, necessary legal precautions were taken. To know fitness of the deceased, opinion of the Doctor was sought, who gave the positive opinion. Before recording her statement, some questions were also put to the deceased, to test her mental condition. In her statement Ex. PT/3, she has stated as under: “It is stated that on 12.8.1999, I was just to cleaning the utensils after taking meals along with my husband, Called me and said that he gave Rs. 400/- to me and keep Rs. 50/- for house hold expenditure and to give Rs. 350/- to him. In the evening when my husband came and demanded money, I borrowed house hold articles. My jeth and my husband gave beatings to me. My mother-in-law caught hold of my one arm and one arm my father-in-law. My Jeth put cloth in my mouth. My husband set me on fire. My son was just about 1 ½ months. My mother -in- law concealed washing sop. She maltreated me. After setting me on fire no one allowed me to put me out. My neighbour put me out. My in-laws disallowed me to took the house. Then Sarpanch came and took me in the car to Hospital. They all should be convicted. I have nothing more to say.” From perusal of statement of the deceased coupled with other evidence on record, it can safely be said that so far as participation of Dilbagh Singh (A-1) and Hardayal Singh (A-2) in the crime is concerned, the same is fully proved on record. Dying declaration inspires confidence and the same has been recorded as per norms. The doctor remained present throughout when statement of the deceased was recorded. Some CRIMINAL APPEAL NO. 455-DB OF 2001 -8- discrepancies here and there, as indicated by counsel for the appellants in statements of the prosecution witnesses are of no help to the appellants, i.e., Dilbagh Singh and Hardial Singh alias Dalla Singh. Contention of counsel for the appellants that as the death has occurred after about one month of the date of occurrence and it was the result of septicemia, the trial Court was not justified in convicting the appellants – accused vide the impugned judgment. This Court is of the view that the argument raised is liable to be rejected. It has come on record that when the deceased was taken to the Hospital, she had 60% burns on her body. She died on September 19, 1999. As per post-mortem report, burns were at her entire body. All the burns were ante mortem in nature and were sufficient to cause death in ordinary course. Death of Asha Rani is a direct result of criminal act of the appellants No. 1 and 2. Faced with the situation, counsel for the appellants has vehemently contended that there was no occasion for appellants No. 2 to 4 to be present at the spot. They have unnecessarily been dragged in the litigation being relatives of appellant No. 1. This Court is of the view that so far as participation of appellant No. 2 in the crime is concerned, the same is proved on record. It has come on record that he is unmarried, doing no work and had been teasing the deceased from the very beginning. Otherwise also, the act of causing burns to the deceased appears to be a handiwork of two persons and not one. So far as appellants No. 3 and 4 are concerned, this Court is of the opinion that benefit of doubt can be given to them. Both are father-in- law and mother-in-law of the deceased. They were of 73 years and 70 years of age respectively at the time of alleged occurrence. They remained CRIMINAL APPEAL NO. 455-DB OF 2001 -9- in jail for more than seven years. This appeal was filed through Jail. In the dying declaration, which was recorded on August 25, 1999, it was stated that both had caught hold of the deceased from her arms. This Court is of the opinion that such an act may not be possible by the appellants No. 3 and 4 being very old. Evidence on record clearly indicates that appellants No. 3 and 4 were living separately from the deceased and her husband. Statement of Harbhajan Singh (PW7) and Nazar Singh (PW8) was recorded before recording the statement of the deceased. Both the witnesses have attributed the same roll to appellants No. 3 and 4, which was subsequently attributed by the deceased, to them, in her dying declaration. It has also come on record that immediately after admission in the Hospital, parents of the deceased reached there and they remained by her side throughout. Both the witnesses have stated that the deceased was in semi-conscious state and had told them facts about the alleged incident. It appears that the deceased might have been tutored by the parents, in the meantime, before her statement was recorded by the Magistrate. At present both the appellants are more than / about 80 years of age. Their lordships of the Supreme Court have specifically noted in Kans Raj v. State of Punjab, AIR 2000 Supreme Court 2324, and Sham Lal v. State of Haryana, AIR 1997 Supreme Court 1873, that it has become tendency in matrimonial disputes, to drag all relatives of the husband, in criminal litigation. A caution was given to the Courts to make an attempt to separate truth from falsehood. Appellants No. 3 and 4 are very old. They were not to be benefited if any dowry/ amount was to be paid by the parents of the deceased to appellant No. 1. Allegations against appellants No. 3 and 4 do not inspire confidence, benefit of which will go to CRIMINAL APPEAL NO. 455-DB OF 2001 -10- them. In view of above, this appeal is dismissed qua appellants No. 1 and 2, they be taken in custody to undergo remaining part of their sentence. However, it is allowed qua appellants No. 3 and 4 and they are acquitted of the charges framed against them. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE October 24, 2009. DKC