IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 443-DB of 2002 DATE OF DECISION : 08.02.2010 Suraj Parkash .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. J.B.S. Gill, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Suraj Parkash was tried by the Court of Sessions Judge, Hoshiarpur, in case FIR No. 37 dated 22.2.2001 registered at Police Station Tanda, District Hoshiarpur, under Section 302 IPC, for committing the murder of his wife Gulshan Rani, aged about 24-25 years. Vide judgment and order dated 6.4.2002, he was convicted and sentenced to undergo imprisonment for life under Section 302 IPC. 2. In the present case, the FIR (Ex.PG/3) was registered initially under Section 307 IPC, on the statement of Gulshan Rani (deceased) made by her on 22.2.2001 at 10.15 PM and recorded by ASI Phoola Singh (PW.6) in Primary Health Centre, Tanda, where she was admitted with 90% burn Crl. A. No. 443-DB of 2002 -2- injuries. In her statement (Ex.PG), Gulshan Rani stated that on 22.2.2001, she along with her husband (appellant herein) was present in their house. At about 8.30 PM, her husband said to her that she had illicit relations with other persons and she was of a bad character. Then she asked him as to what he had seen about her. Thereupon, he gave her severe beatings in anger. He was also used to beat her previously on that account. Thereafter, her husband set her on fire by sprinkling kerosene oil upon her. The domestic articles also caught fire, because he had sprinkled kerosene oil on those articles. Her husband set her on fire with intention to kill her. 3. Before recording the aforesaid statement, ASI Phoola Singh moved application (Ex.PF) seeking opinion of the Doctor about the fitness of Gulshan Rani to make the statement. Dr. Bhupinder Singh (PW.2) vide his opinion (Ex.PF/1) declared the patient fit to make the statement. Thereafter, the said statement was recorded in presence of the Doctor. After recording of the said statement, Dr. Bhupinder Singh made endorsement (Ex.PG/1) certifying that the statement of Smt. Gulshan Rani was recorded in his presence and during her statement, she was fully conscious. It is pertinent to mention here that when the statement of Gulshan Rani was recorded by ASI Phoola Singh, except the Doctor, no other person or relative of the deceased was present. 4. Subsequently, when condition of Gulshan Rani became serious, Doctor referred her to Civil Hospital, Hoshiarpur, but she was taken to Civil Hospital, Jalandhar, where she died on 23.2.2001 at about 11.35 AM. Crl. A. No. 443-DB of 2002 -3- 5. Intimation regarding the death was sent to the police, on the basis of which the offence under Section 302 IPC was added. 6. On 23.2.2001 at 4.15 PM, Dr. Gurinder Kaur Chawla (PW.1) conducted the autopsy on the body of the deceased and found the following injuries on her body : (i) Singing of scalp and pubic hair was present. (ii) Superficial to deep burns were present all over the body. (iii) 5 x 1 cm lacerated wound with clotted blood was present on the right side of frontal region of scalp. A haematoma was present underneath the scalp skin. In the opinion of Dr. Gurinder Kaur Chawla, the cause of death was due to hypovolumic burn injuries described, which were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was about 12 hours and between death and post-mortem, it was within 24 hours. 7. On 22.2.2001, ASI Phoola Singh inspected the spot and prepared the rough site plan (Ex.PH) with correct marginal notes. Thereafter, on 23.2.2001, vide recovery memo Ex.PJ, he took into possession the burnt clothes and one fridge from the spot. The accused was arrested on 9.5.2001. 8. 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. 9. In support of its case, the prosecution examined eight Crl. A. No. 443-DB of 2002 -4- witnesses. PW.1 Dr. Gurinder Kaur Chawla, who conducted the autopsy on the body of the deceased, proved Post Mortem Report, request of the police for conducting post-mortem examination and the inquest report, as Ex.PA, Ex.PB and Ex.PC, respectively. PW.2 Dr. Bhupinder Singh proved his opinion Ex.PF/1, whereby he declared Gulshan Rani fit to make statement on 22.2.2001 at 10.15 PM. He also stated that ASI Phoola Singh recorded her statement (Ex.PG) in his presence and she remained fit and conscious throughout while recording her statement. He also proved the certificate (Ex.PG/1) given by him in this regard. PW.3 Rajinder Pal is neighbourer of the appellant and the deceased and he partly supported the prosecution version, but he was declared hostile, as he stated that at the time of the occurrence, he did not see the appellant present in his house and the deceased did not speak out anything from her mouth at that time. PW.4 Madan Lal is the father of the deceased and he has fully supported the prosecution case. PW.5 ASI Balwinder Singh is the formal witness, who arrested the appellant in this case on 9.5.2001. PW.6 ASI Phoola Singh is the Investigating Officer of the case and has fully supported the prosecution case. PW.7 Kuldip Kumar Sharma, Draftsman, is another formal witness, who prepared the scaled site plan Ex.PK of the spot. PW.8 SI Gurchetan Singh, who received the wireless message from Civil Hospital, Jalandhar regarding the death of Gulshan Rani and he then added the offence under Section 302 IPC. Thereafter, he sent special reports, prepared the inquest report Ex.PC, recorded the statements of the witnesses and sent the dead Crl. A. No. 443-DB of 2002 -5- body to Civil Hospital, Jalandhar, for post-mortem examination. 10. In his statement under Section 313 Cr.P.C., the accused denied all the allegations appearing against him in the evidence led by the prosecution. He pleaded innocence and stated that the deceased set herself on fire due to shame. He was not present in the house on the day of occurrence and the deceased did not make any statement before the police. He was arrested by the police on the day of occurrence and was falsely implicated lateron in this case. In defence, the accused examined DW.1 Amarjit wife of Bakhshish Singh, who claimed herself to be living in the neighbourhood, adjoining the house of the appellant. She stated that Gulshan Rani was having illicit relations with some body in Jalandhar. She told her that when she went to the house of her sister's husband at Jalandhar, she had conceived a child from that person and the said fact had come to the notice of her husband and father-in-law. She further stated that Gulshan Rani used to tell her that she will commit suicide. One hour before the time of occurrence, she told her that she wants to end her life by consuming some poison. Thereafter, she set herself on fire. At that time, the appellant was not present in the house. He was lateron called from the Rehri, where he was working. 11. The trial court, while relying upon the dying declaration, the medical evidence and the other corroborative evidence, convicted and sentenced the accused, as indicated above. Against the said judgment, the instant appeal has been filed by the accused. 12. Learned counsel for the appellant argued that in the present Crl. A. No. 443-DB of 2002 -6- case, the trial court has committed grave illegality while convicting the appellant only on the basis of the statement made by Gulshan Rani (deceased), which was recorded by ASI Phoola Singh. The said statement has been wrongly treated as `dying declaration' and has been made the basis for conviction of the appellant. He submitted that it has come on record that at that time, the deceased was having 90% burn injuries and her BP rate was high, therefore, at that time, she was not fit to make statement, but by obtaining wrong opinion of the Doctor, ASI Phoola Singh had recorded a statement of the deceased, which was actually not made by her. Learned counsel further argued that the alleged dying declaration made by the deceased to ASI Phoola Singh should not be relied upon, because ASI Phoola Singh has not explained any reason for not calling the Magistrate at the time of the recording of said statement. He did not make any attempt to call the Magistrate for recording the dying declaration of the deceased. Learned counsel further argued that in the present case, the deceased had committed suicide, as at the time of the alleged incident, the appellant was not present in the house, and at that time, he was selling vegetables. Learned counsel further argued that the fact that the entire house was got burnt further establishes that before setting herself of fire, the deceased had burnt all the articles of the house. There was no reason for the appellant to burn the articles of his own house. Therefore, in the instant case, the prosecution has failed to prove the guilt against the appellant beyond shadow of a reasonable doubt. Crl. A. No. 443-DB of 2002 -7- 13. On the other hand, learned counsel for the respondent-State has supported the judgment of the learned trial court and argued that there is sufficient and reliable evidence on record, on the basis of which conviction of the appellant under Section 302 IPC by the trial court is fully justified. 14. After hearing learned counsel for the parties and going through the record of the case, we do not find any illegality, infirmity or perversity in the impugned judgment of conviction and the order of sentence, passed by the learned trial court. In the present case, the occurrence has taken place at about 8.30 PM on 22.2.2001, in the house of the appellant, situated in Tanda, a small town. After the incident, Gulshan Rani was taken to Primary Health Centre, Tanda. She was admitted there at 9.50 PM. Dr. Bhupinder Singh attended her. He sent information Ex.PE to SHO, Police Station Tanda regarding the admission of Gulshan Rani with burn injuries. On receiving the said information, the police came to the Primary Health Centre. ASI Phoola Singh moved application Ex.PF to the Doctor, seeking his opinion about the fitness of the patient to make the statement. Dr. Bhupinder Singh vide his opinion Ex.PF/1 declared the patient fit to make statement at 10.15 PM on 22.2.2001. At that time, no Executive Magistrate or the Judicial Magistrate was available in Tanda. Therefore, after obtaining the opinion from the Doctor, ASI Phoola Singh recorded the statement (Ex.PG) of Gulshan Rani in the presence of Doctor Bhupinder Singh, who while appearing in the court as PW.2 has stated that the said statement was recorded in his presence and during that period, Gulshan Rani remained Crl. A. No. 443-DB of 2002 -8- throughout fit and was fully conscious. After recording the statement, Dr. Bhupinder Singh made endorsement Ex.PG/1 certifying that during the recording of her statement, she was fully conscious and her statement was recorded in his presence. Though the dying declaration (Ex.PG) was made before the police, but it has been duly proved by the statement of PW.6 ASI Phoola Singh and PW.2 Dr. Bhupinder Singh. Both these witnesses have further stated that Gulshan Rani voluntarily made the statement. After making the statement, she had put her thumb impression in their presence. Since the Executive Magistrate or the Judicial Magistrate was not available in Tanda, therefore, keeping in view the condition of the patient, and having no other alternative left, ASI Phoola Singh after obtaining the opinion of the Doctor, recorded the statement of the deceased in the presence of the Doctor. It is pertinent to mention here that at the time, when the said statement was recorded, no relative of the deceased was present. Her father Madan Lal came in the morning, when she was admitted in Civil Hospital, Jalandhar. In Smt. Laxmi v. Om Parkash and others, AIR 2001 S.C. 2383, it was observed by the Hon'ble Supreme Court as under : “A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating Crl. A. No. 443-DB of 2002 -9- officer or the police officer later on relied on as dying declarations.” In view of the fact that the said dying declaration (Ex.PG) was recorded by the police officer, we have cautiously examined it. In our opinion, the statement made by the deceased and recorded by ASI Phoola Singh, in the presence of the Doctor attending her, has been corroborated by the medical evidence as well as the statements of PW.3 Rajinder Pal and PW.4 Madan Lal. In the dying declaration, the deceased has stated that before setting her on fire by sprinkling kerosene oil upon her, her husband gave severe beatings to her. This fact has been established by injury No.3, which was found on the body of the deceased. If we accept the defence version that she herself set her on fire, then it has not been explained at all, as to how the deceased has suffered this injury. Secondly, in the statements of PW.3 Rajinder Pal and PW.4 Madan Lal, it has come that the appellant was having suspicion on the character of his wife and he was suspecting that she has illicit relations with some one. It has also been stated by these witnesses that there had been quarrel between the couple on this issue. Thus, the motive, as alleged in the dying declaration, has been established. Therefore, in our opinion, on these two aspects of the case, the dying declaration has been corroborated by the other evidence. In view of this, we do not find any reason to discard the dying declaration of the deceased and it is fully reliable. 15. It is the admitted position that the occurrence has taken place in Crl. A. No. 443-DB of 2002 -10- the house of the appellant at 8.30 PM (night) on 22.2.2001. In his defence, the appellant has pleaded that his wife had committed suicide by pouring kerosene oil upon her out of shame. DW.1 Amarjit, who has been examined by the appellant in his defence, has stated that the deceased was having illicit relations with some one at Jalandhar and she had conceived a child from that person and she told this witness that she will commit suicide. The fact that the deceased had conceived a child has been falsified by the medical evidence, as PW.1 Dr. Gurinder Kaur Chawla, who conducted post mortem examination on the body of the deceased, has specifically stated that the uterus was empty. Secondly, the appellant has taken the plea that he was arrested on the day of occurrence and was lateron falsely implicated in this case, but as per the record, he was arrested on 9.5.2001, after about 2 ½ months of the day of occurrence. Therefore, we do not find any substance in the defence version of the appellant and on the other hand, the prosecution by proving the dying declaration (Ex.PG), which was made by the deceased voluntarily and in conscious state of mind, in the presence of the Doctor, coupled with the other evidence, has rightly convicted and sentenced the appellant and it cannot be said that the prosecution has failed to prove its case beyond a reasonable doubt. 16. In view of the above, we do not find any ground to interfere in the impugned judgment and order passed by the trial court, convicting the appellant for the offence under Section 302 IPC and sentencing him to undergo imprisonment for life, and the same is upheld. Consequently, the Crl. A. No. 443-DB of 2002 -11- appeal stands dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 08, 2010 ( JORA SINGH ) ndj JUDGE