IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D 332-DB of 2006 Date of decision: 07.11.2011 Kulwinder Singh …..Appellant versus State of Punjab ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Ashok Kaushik, Advocate for the appellant Ms.Gurveen H. Singh, Addl. A.G. Punjab Jasbir Singh, J. It is allegation against the appellant that he on 5.6.2003, sprinkled kerosene oil on Gurpreet Kaur, his sister-in-law and put her to fire, who succumbed to her injuries at PGI Chandigarh on 6.6.2003. Vide judgment and order dated 1.5.2006/2.5.2006 respectively, he was convicted for commission of an offence under Section 302 IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.5000/- with a default clause for committing the above offence. Hence, this appeal. The process of law was set in motion on a statement Ex.PW9/B (dying declaration) made by the deceased to PW9 Sanjay Sandhir, JMIC at Chandigarh. On the basis of above statement, FIR No.76 (Ex.PW8/C) was registered against the appellant in police station Morinda, district Ropar on 5.6.2003. CRA-D 332-DB of 2006 As per facts on record, on receipt of burn injuries, Gurpreet Kaur was admitted in PGI on 5.6.2003. She died on 6.6.2003 at 6.15 pm. Appellant-accused was arrested on 10.6.2003. It is case of the prosecution that on the fateful day, ASI Nirmal Singh (PW8) received an intimation that one Gurpreet Kaur wife of Bhag Singh resident of Makrauna Khurd has been admitted in PGI Chandigarh with burn injuries. The investigating officer went to Chandigarh. He made a written request to the Duty Magistrate UT Chandigarh to record statement of the injured, lying admitted in PGI at Chandigarh. Mr.Sanjay Sandhir, JMIC (PW9) went to PGI along with the investigating officer. After getting a fitness certificate, regarding health of the deceased from Dr.Rakesh Ranjan (PW6), he recorded her statement, copy of which was given to the investigating officer, which led to the registration of above FIR against the appellant under Section 307 IPC. Smt.Gurpreet Kaur died on 6.6.2003, whereupon offence under Section 302 IPC was added in the FIR. The investigating officer went to the place of occurrence, prepared rough site plan with correct marginal notes. He also took into his possession one empty box, four burnt match sticks against a recovery memo, one plastic can containing 250 ml kerosene oil was also taken in possession from the spot. The investigating officer also removed burnt cloths of the deceased, almost in the shape of ash, from the street outside of her house. After death, the investigating officer prepared an inquest report on the dead body and sent it for post-mortem examination, which was conducted by a Board of doctors including Dr.Dalbir Singh (PW1) on 7.6.2003 at 12.15 pm. Superficial to deep burns were found present all over the body except patches of healthy skin over the scalp and soles. It was a case of 96% thermal burns, which were ante mortem in nature and sufficient 2 CRA-D 332-DB of 2006 to cause death in ordinary course. Above opinion is further strengthened by the statement of Dr.Rakesh Ranjan (PW6), who on 5.6.2003 at about 3.25 pm got admitted the patient in an emergency ward of the PGI. Statement of the deceased was also recorded by Sanjay Sandhir, JMIC (PW9) in his presence, after getting his opinion (Ex.PW6/A), that the patient was fit to make a statement, at the end, this witness also gave a certificate that the patient remained conscious throughout during the recording of her statement by the magistrate. He has further deposed that left thumb impression of the patient was taken on her statement because right thumb was burnt. This witness has specifically stated that an injured with 98% burn injuries can be conscious and make a statement. He has further stated that when Magistrate came at the spot, the patient was restless but she was oriented. The investigating officer, on completion of investigation put the final report in Court for trial. Copies of the documents as per provision of Section 207 Cr.P.C., were supplied to the appellant-accused. As per law, the case was committed to the competent Court for trial vide order dated 6.8.2003. The appellant was charged sheeted to which he pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the appellant-accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. It was further stated by him that he did not sprinkle kerosene upon the deceased and further that he has falsely been implicated in this case at the instance of the brother and other relatives of the deceased. He also brought in the witness box Harminder Singh (DW1) and Nikka Singh (DW2) to 3 CRA-D 332-DB of 2006 depose in his favour. The above witnesses made an attempt to show that it was a case of committing suicide by the deceased. The trial Court on appraisal of evidence found that the prosecution was successful in bringing home the guilt of the appellant- accused and accordingly, he was convicted and sentenced as found mentioned in earlier part of the order. Counsel for the appellant has vehemently contended that it was a case of suicide. The appellant has falsely been implicated. He can not commit murder of his sister-in-law for a petty amount of Rs.20,000/-. He also stated that there is no proof that any money, for the deceased, was received by the appellant-accused from her husband as alleged by the prosecution. It was contended that as per medical evidence on record, the deceased has suffered 100% burn injuries. If that was so, her statement could not have been recorded as has been deposed by Mr.Sanjay Sandhir, JMIC (PW9). She was under the influence of the sedatives and was not in a position to depose. The alleged dying declaration was recorded without meeting the legal parameters. He prayed that appeal be allowed judgment and order under challenge be set aside and appellant be acquitted of the charges framed against him. Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements made by PW2, PW3 and PW5, argued that the death has occurred within five years of the marriage. Despite giving birth to a child, the deceased was being harassed by her in-laws on one pretext or the other. With a view to usurped money sent by the husband of the deceased, she was killed by the appellant, father- in-law and mother-in-law of the deceased. Counsel also made reference to the medical evidence on record to say that the deceased had suffered burn 4 CRA-D 332-DB of 2006 injuries at the instance of the appellant. It was further stated that recording of statement by Mr.Sanjay Sandhir JMIC (PW9) inspires confidence and even on that piece of evidence alone, the appellant can be convicted. He prayed that appeal having no substance be dismissed. It is an admitted fact that the husband of the deceased is employed in a foreign country. She along with her child was residing with the appellant-accused and his parents. Death took place within five years from the date of marriage. Death has occurred in house of the appellant- accused. If that is so, heavy duty is cast upon in-laws of the deceased to explain the circumstances under which the death has taken place. In defence, by producing DW1 and DW2 in Court, an attempt was made by the appellant-accused to show that the deceased Gurpreet Kaur had committed suicide, however, in view of evidence on record, it is not possible to accept the above averment. There is no history of the deceased suffering from any depression. She was blessed with a child. Her husband is earning and employed in a foreign country. Nothing has been brought on record to show as to why she will commit suicide if atmosphere in the house was very healthy and she was not being harassed by the appellant-accused and others. Bhupinder Singh (PW2), brother of the deceased has very clearly stated that 5/10 days before the date of occurrence, husband of the deceased had sent Rs.20,000/- to her for maintenance. This fact was told to him on a telephone by the deceased. It was also brought to his notice that appellant-accused is in the look out to grab that money. When, on the fateful day, after getting information, he reached PGI Chandigarh, his sister informed him that she was put to fire by the appellant-accused and his parents. He also identified the dead body of the deceased. PW3 Narinder 5 CRA-D 332-DB of 2006 Singh has also supported version given by Bhupinder Singh (PW2). This witness is also a witness to the recovery of match stick etc. at the spot. Case of the prosecution has been supported by medical evidence on record, as described by Dr.Dalbir Singh (PW1) and Dr.Rakesh Ranjan (PW6). The latter witness has specifically stated that right hand thumb of the deceased was burnt on account of which, her left hand thumb impression was taken on her statement. The dying declaration was recorded by Mr.Sanjay Sandhir JMIC (PW9). In her statement, the deceased has categorically stated that at about 9.00 am on 5.6.2003, she demanded Rs.20,000/- from the appellant- accused but he refused to give the said money to her. The amount above mentioned was sent by her husband Bhag Singh from a foreign country to her for maintenance. She further stated that she along with her father-in- law, mother-in-law, sister-in-law and brother-in-law (the accused) was residing in one house. It was also deposed that she was told by the appellant –accused that her husband had instructed him not to give money to her. She further stated that the accused slapped her at that time and sprinkled kerosene on her and then set her on fire. Neighbours tried to save her. The above act was committed only by the appellant-accused. She had further stated that one Jagir Singh (Taya) used to fight with her. She also stated that before the date of incident, the appellant-accused had been fighting with her for the last few days. It is further stated that even her husband told that he would not keep her in the house. As per statement given by PW9 Mr.Sanjay Sandhir, JMIC, before recording statement of the deceased, regarding her fitness, he got an opinion of PW6 Dr.Rakesh Ranjan (Ex.PW9/B) regarding fitness of the deceased. This witness has also stated that on her statement, LTI of 6 CRA-D 332-DB of 2006 Gurpreet Kaur was got affixed because her right thumb was burnt. After recording statement of the patient this witness again obtained opinion (Ex.PW6/B) of the above doctor that throughout, when statement was recorded, the patient remained conscious. Despite lengthy cross- examination, the defence has failed to shatter testimony of the above witness. Recording of the statement of the deceased by PW9 inspires confidence and it has been done in a very lawful manner. As per law, dying declaration if trust worthy and proved on record, the conviction can be based upon it without any further corroboration. It is true that author of the statement (dying declaration), to know veracity of the statement made, cannot be subjected to technique of cross-examination. In view of above, to know truthfulness of the statement, the Court is supposed to carefully analyze the same and also mode and manner of its recording. It is also to be seen whether maker was in a fit state of mind or not. In the present case, we have done so. Their Lordships of the Supreme Court in Smt. Laxmi v. Om Parkash and others, 2001(3) RCR (Criminal) 358, have discussed the importance of dying declaration during trial and observed as under: “The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing 7 CRA-D 332-DB of 2006 the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction.” In the present case, as has been discussed in earlier part of the order, statement of the deceased inspires confidence. It appears to be truthful. She had made no attempt to implicate other members of the family though they were also residing with her. She has levelled allegation only against the appellant and not against anybody else. It is stated by her that she was put to fire to grab Rs.20,000/- sent to her for maintenance by her husband. There is nothing on record to show that she was tutored. PW6 and PW9 both have categorically stated that none other was available when statement of the deceased was recorded. Their Lordships of the Supreme Court in Sher Singh and another v. State of Punjab, (2008) 4 Supreme Court Cases 265, has opined that “acceptability of a dying declaration is greater because the declaration is made in extremity when the party is at the verge of death. One rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of dying 8 CRA-D 332-DB of 2006 declaration.” It was further observed that the Courts are required to analyse the dying declaration in a careful manner as the accused has no power to cross-examine the maker of the statement and if the statement is truthful, the same can be relied upon to convict an accused. Minor technicalities with regard to opinion of the doctor etc. are to be ignored. In Bijoy Das v. State of West Bengal, (2008) 4 Supreme Court Cases 511, their lordships of the Supreme Court has opined that there was no reason as to why the doctor or the other witnesses should make a false statement about the dying declaration especially when there is no allegation of enmity between the accused and those witnesses (Para 10). Similarly, in the case of Narain Singh v. State of Haryana, AIR 2004 Supreme Court 1616, after discussing the entire case law on the subject, it was opined that “if a dying declaration is found to be reliable, then there is no need of any corroboration by any witness and conviction can be sustained on its basis alone. Merely because statement of the deceased was not recorded before a Magistrate is no ground to discard the dying declaration made by her in view of facts mentioned above.” Their Lordships of the Supreme Court in Pores Yadav and others v. State of Bihar, (1999) 2 Supreme Court Cases 126 and in Mange Ram and another v. State, Delhi Administration, 1998 Supreme Court Cases (Criminal) 909, have justified reliance of the Courts on dying declaration made by the deceased to the Investigating Officer, as it was found to be reliable and trust-worthy. Same is the situation in the present case. As has been projected by producing defence evidence that the deceased has committed suicide, there is nothing on record to prove the same, even tentatively. Nothing has been brought on record that the deceased was suffering from any chronic 9 CRA-D 332-DB of 2006 disease or that her husband was not maintaining her properly, which may lead her to commit suicide. Death has occurred within five years of the date of marriage. In terms of Section 32(1) of the Indian Evidence Act, 1872, the statement made by a person regarding cause of death is admissible as per the parameters mentioned in that provision. In this case, even FIR was recorded on the basis of a statement made by the deceased. The deceased was under ‘eminent danger’ to her life as she has suffered more than 96% burns on her body. Prosecution has successfully proved that physically and mentally she was fit to make a statement. To that extent deposition made by PW6 and PW9 is trust worthy. Both are independent witnesses and are not expected to depose even a slightest wrong fact against the appellant-accused. There is nothing on record to show that the deceased was under the influence of anybody else, when she made the statement. Also there is nothing on record that when her statement was recoded she was under the influence of any sedative. Counsel for the appellant has failed to show any misreading on the part of the trial Judge when passing the judgment and order under challenge. No case is made out for any interference. Dismissed. (Jasbir Singh) Judge 07.11.2011 (Sabina) gk Judge 10