IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 757-DB of 2003 DATE OF DECISION : 07.04.2010 Ishwar Singh and others .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. S.P. Chahar, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This appeal has been filed by six accused belonging to the same family, against the judgment and order dated 14.8.2003, passed by the Court of Additional Sessions Judge, Rohtak, whereby they have been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each, in default to undergo further rigorous imprisonment for a period of two years, under Section 302 read with Section 34 IPC, for committing the murder of Jaiwanti by setting her on fire; and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- each, in default to undergo further rigorous imprisonment for a period of six months, under Section 498-A read with Section 34 IPC, for Crl. A. No. 757-DB of 2003 -2- causing harassment to Jaiwanti on account of demand of dowry. Both the sentences have been ordered to run concurrently. 2. Appellants No.1 to 6, namely Ishwar Singh, Smt. Bhartho, Dharam Pal (who has died during the pendency of appeal), Inder Singh, Kamlesh wife of Dharam Pal and Smt. Rani wife of Inder Singh, are the father-in-law, mother-in-law, brothers-in-law (Jeths) and sisters-in-law (Jethanis) of deceased Jaiwanti. Dilbagh Singh (PW.1) is the husband of the deceased. 3. As per the prosecution case, Dilbagh Singh (PW.1) was married with Jaiwanti about four years prior to the day of occurrence. They were residing in one room of the ancestral house, consisting of only two rooms, situated in village Bahu Akbarpur. On 18.5.2002 at 10.25 PM, Jaiwanti having 100% burn injuries was admitted in the Accident and Emergency Department of PGIMS, Rohtak. According to the MLR (Ex.PR), Jaiwanti was got admitted by her husband Dilbagh Singh. Thereupon, Dr. Vinay Gupta sent ruqa (Ex.PS) to the Police intimating about admission of Jaiwanti in burnt condition. A VT message (Ex.PV) was received by ASI Ishwar Singh (PW.13) that Jaiwanti wife of Dilbagh Singh resident of Bahu Akbarpur was admitted in PGIMS, Rohtak, with 100% burn injuries. Thereupon, he went to PGIMS, Rohtak, collected the MLR (Ex.PR) as well as the medical ruqa (Ex.PS), reached Ward No. 6, where Jaiwanti was admitted and made a written request (Ex.PD) to the Doctor to give opinion as to the fitness of the patient to make the statement. On that request, Crl. A. No. 757-DB of 2003 -3- Dr.Nitu Nagpal (PW.12), vide endorsement Ex.PD/1, declared the patient fit to make the statement at 12.20 AM on 19.5.2002. Thereafter, ASI Ishwar Singh approached Smt. Kanchan Nariala, Judicial Magistrate Ist Class, Rohtak, and at 2.00 A.M., he made application (Ex.PU) requesting her to record the statement of Jaiwanti. On his request, Smt. Kanchan Nariala (PW.3) reached PGIMS, Rohtak at 2.25 AM, and after again seeking the medical opinion (Ex.PG) regarding the fitness of patient, she recorded the statement of Jaiwanti (Ex.PJ), which reads as under : “Q. How you get burns? Ans. It was of about 7.00 P.M. I was in my house. I was not quarreling. `Jeth' - `Jethani' (elder brothers of husband and their wives), were quarreling with me. They were demanding Rs. 15,000/- from me. My `Jeth' - `Jethani' gave beatings to my husband. My parents-in-law were also demanding money. My `Jeth' - `Jethani' and parents- in-law poured kerosene oil upon me and ablazed me. My husband is innocent. Q. What else, you want to say? Ans. Nothing. Sd/- JMIC 19.5.2002. 2.45 A.M.” At about 4.10 AM on the same day, Jagwanti had died. 4. On the basis of the aforesaid statement (Ex.PJ), formal FIR (Ex.PT) for the offences under Sections 498-A and 304-B IPC was registered against all the six accused, at 9.50 AM on 19.5.2002. The police Crl. A. No. 757-DB of 2003 -4- party reached at the spot, prepared the inquest report (Ex.PO) and the dead body was sent for post mortem examination. ASI Ishwar Singh prepared the site plan (Ex.PW) with correct marginal notes, and vide recovery memo (Ex.PP), ash, remains of burnt clothes, burnt human skin and broken pieces of bangles were taken into possession. Statements of Dilbagh Singh (PW.1) and Dhup Singh (PW.8), husband and brother of the deceased, were recorded, under Section 161 Cr.P.C. 5. On 19.5.2002 at 1.20 PM, Dr. S.S. Dahiya (PW.4) conducted autopsy on the body of the deceased. During post mortem examination, he found 100% deep injuries all over the body of the deceased. As per his opinion, the cause of death was ante mortem burns and its complications which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was within few hours and between death and post mortem examination was within 24 hours. He proved the Post Mortem Report of the deceased as Ex.PN. 6. Appellants No.1 and 3, namely Ishwar and Dharam Pal, were arrested on 23.5.2002. Appellants No.2 and 5, namely Smt. Bhartho and Smt. Kamlesh, were arrested on 8.8.2002, whereas appellants No. 4 and 6, namely Inder Singh and Smt. Rani were arrested on 13.8.2002. No recovery was effected from any of the appellants. 7. After completion of investigation, the challan was filed against all the six accused and they were charge sheeted for the offences under Section 304-B and 498-A IPC. However, subsequently, on the application Crl. A. No. 757-DB of 2003 -5- of the prosecution, the charge was amended and the accused were charge sheeted for the offences under Section 302 or in the alternative under Section 304-B IPC and under Section 498-A read with Section 34 IPC, to which they did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined 13 witnesses, out of whom PW.1 Dilbagh Singh (husband of the deceased), PW.3 Mrs. Kanchan Nariala, Judicial Magistrate Ist Class, Rohtak, PW.4 Dr. S.S. Dahiya, PW.8 Dhup Singh (brother of the deceased), PW.12 Dr. Nitu Nagpal and PW.13 ASI Ishwar Singh are the relevant witnesses. The statements of the other witnesses are formal in nature. 9. PW.1 Dilbagh Singh, in his statement under Section 161 Cr.P.C., made before the police, had stated that he was married with Jaiwanti three/four years prior to the day of occurrence. After the marriage, his mother Bhartho, father Ishwar Singh and brothers Dharam Pal and Inder Singh asked his wife that the house would be given to her, when she would bring Rs. 60,000/- from her house. For that demand, they gave beatings to his wife. For that reason, he along with his wife shifted to village Meham. About six months prior to the occurrence, they shifted back to village Bahu Akbarpur. Again, all the accused started abusing them. They demanded Rs.15,000/- from his wife. On 18.5.2002, in the evening, he had gone for latrine and his wife was at his house. When he returned at about 7.15 PM, he saw his mother, father, both brothers and their wives coming out of the house. They were saying that she had been finished. On entering his room, Crl. A. No. 757-DB of 2003 -6- he found that his wife was lying on the floor in the burnt condition. On enquiry, she told him (Dilbagh Singh) that his parents, brothers and their wives had sprinkled kerosene on her and set her on fire. He arranged a vehicle and brought his wife to PGI Rohtak for treatment, where she died in the morning. While appearing in the Court as PW.1, this witness did not support the aforesaid version. He was declared hostile and was cross examined by the Public Prosecutor. In the cross-examination, he stated that he did not give any statement to the police. He stated that accused Bhartho, Ishwar Singh, Inder Singh and Rani are residing at village Meham for the last 6/7 years. Accused Kamlesh and Dharam Pal are residing in village Bahu Akbarpur separately, whereas he and his wife were living separately in one room of the house. He stated that none of the accused had demanded any dowry from the deceased and all the brothers are doing their separate business. They are on visiting terms only on marriage party etc. 10. PW.3 Smt. Kanchan Nariala, Judicial Magistrate Ist Class, Rohtak, supported the case of the prosecution. She stated that she recorded the statement (Ex.PJ) of patient Jaiwanti, after obtaining opinion of Dr. Neetu Nagpal about her fitness to make the statement. She recorded the statement of the patient correctly without any addition or omission. 11. PW.4 Dr. S.S. Dahiya conducted the post mortem examination of the deceased and proved the Post Mortem Report Ex.PN. 12. PW.8 Dhup Singh, brother of the deceased, supported the prosecution version to the effect that all the accused were harassing his Crl. A. No. 757-DB of 2003 -7- sister Jaiwanti on account of bringing inadequate dowry. All the accused used to beat his sister and her husband Dilbagh Singh. They asked her to bring Rs. 65,000/-, otherwise she will not be allowed to live in her matrimonial house. He has also stated that about 15 days prior to the occurrence, he had gone to his sister and in his presence, all the accused picked up quarrel with her and asked her to arrange Rs. 15,000/-, failing which she will not be allowed to reside there. He persuaded the accused not to harass his sister, but in vain. In the cross-examination, this witness was confronted with the statement (Ex.DA) made by him before the police, in which he had not made such allegations. He has further admitted in his cross-examination that during the life time of his sister, he did not make any complaint to any authority regarding her harassment and beatings at the hands of the accused on account of demand of dowry. No Panchayat was ever convened regarding harassment in that regard. 13. PW.12 Dr. Nitu Nagpal stated that on 19.5.2002, vide endorsement Ex.PG/1, she opined that patient Jaiwanti was fit to make the statement. The said opinion was given to the Magistrate, who had recorded the statement of the patient and prior to that, at 12.20 AM., on police request she gave opinion that the patient was fit to make the statement. 14. PW.13 ASI Ishwar Singh is the Investigating Officer. In his cross-examination, he has stated that during his investigation, he found that Dharam Pal and Dilbagh Singh were residing separately in village Bahu Akbarpur, whereas Inder Singh and Rani were residing at Meham at the Crl. A. No. 757-DB of 2003 -8- time of the occurrence. He has admitted that after the occurrence, neither kerosene container nor match box or burn match stick were lifted from the place of occurrence. He further admitted that he did not record the statement of any person residing in the vicinity, where Dilbagh Singh and Jaiwanti were residing. 15. In their statements under Section 313 Cr.P.C., all the six accused stated that they are innocent and have been falsely implicated in the case. They pleaded that they along with their husbands/wives were living separately from Jaiwanti and Dilbagh. They never harassed Jaiwanti and tortured her for or in connection with demand of dowry. Jaiwanti made the alleged dying declaration under the pressure of her brother and other relatives. She suffered burn injuries accidently, while cooking. 16. The trial court, after considering the evidence on record, held that the dying declaration (Ex.PJ) finds corroboration from the motive and the medical evidence. The dying declaration is further corroborated by the conduct of the accused persons that they neither tried to put off the fire, nor informed anybody including the husband of the deceased, nor tried to bring the deceased to the hospital, nor remained by her side in the hospital. Rather, all the accused remained absconded for sufficient long time pointing towards their guilty consciousness. However, the contention of the prosecution that the presumption should be drawn against the accused, as the deceased died in the house of the accused persons, was not accepted by the trial court and it was held that there is no evidence on record to prove Crl. A. No. 757-DB of 2003 -9- that all the accused persons were also living in the room of the occurrence or all of them had a joint living and joint mess. 17. We have heard the arguments of learned counsel for both the parties. 18. Learned counsel for the appellants argued that in the present case, the learned trial court has committed grave illegality while convicting all the six members of the family under Section 302 IPC only on the basis of the dying declaration made by the deceased, without any corroborative evidence, particularly when the alleged dying declaration is totally vague and even does not disclose the names of all the accused, the role attributed to any one of them and the manner, in which she was set on fire. Learned counsel vehemently argued that in the present case, all the three sons of appellants Ishwar Singh and Bhartho were married and they were residing separately, and were also doing their business separately. Appellants Ishwar Singh and Bhartho along with their son Inder Singh and his wife Rani were residing in village Mehna, whereas two brothers, namely appellant Dharam Pal (now died) and Dilbagh Singh with their respective wives were residing separately in village Bahu Akbarpur. Learned counsel argued that in the present case, there was no dispute with regard to the demand of dowry. There is no evidence on record to prove that at any point of time, any demand of dowry was made from Jaiwanti or her parents. Learned counsel argued that it is strange that in this case, no allegation was made by Jaiwanti against her husband. If there is any demand of dowry, it is normally the Crl. A. No. 757-DB of 2003 -10- husband who makes such a demand. When the parents and other brothers of the husband were residing separately, there can be no demand of dowry by them. Learned counsel argued that this contention has also been upheld by the trial court, while holding that the necessary ingredients of offence under Section 304-B IPC are completely missing. According to learned counsel for the appellants, Dilbagh Singh along with his wife Jaiwanti was residing in one room of the ancestral house in village Bahu Akbarpur and they wanted to take possession of another room, which could not have been given to one brother in partition. Therefore, while Jaiwanti accidentally caught fire, she falsely implicated all the family members of her in-laws, giving clean chit to her husband. Learned counsel further argued that a bare reading of the dying declaration clearly indicates that the said statement is totally vague, sketchy and doubtful. It reads that at 7.00 PM, she was not quarreling, her `Jeth' and `Jethani' were quarreling with her. They were demanding Rs.15,000/- from her. They have beatings to her husband. Her parents-in-law were also demanding money. Her `Jeth' and `Jethani' and the parents-in-law poured kerosene oil upon her and set her on fire. Her husband is innocent. Learned counsel argued that in the said statement, the deceased did not mention name of any of the accused. She was having two `Jeths' and two `Jethanis'. She used the words `Jeth' and `Jethani' singularly. It is not clear to whom she had referred to in the statement. The dispute was with regard to Rs. 15,000/-. It has been stated that husband of the deceased was given beatings, but her husband while appearing in the witness box did Crl. A. No. 757-DB of 2003 -11- not corroborate this statement. Even in the statement before the police, he stated that he was not present at the time of the occurrence. He reached the place of occurrence later on. Even the statement made by the husband of the deceased under Section 161 Cr.P.C., is totally contrary to the aforesaid dying declaration. In these circumstances, learned counsel argued that on such vague and incomplete dying declaration, it is not safe to convict six persons for the offence under Section 302 IPC, without any independent corroboration. Learned counsel submits that in the instant case, there is no evidence, which corroborates the aforesaid dying declaration (Ex.PJ). Rather, the evidence collected by the prosecution goes contrary to the version in the aforesaid dying declaration. Learned counsel further argued that the prosecution has failed to prove the alleged motive. It has not been explained as to on what account, Rs. 15,000/- were being demanded by all the accused and what was the exact dispute between the parties. It has also been held by the trial court that it is not a case of demand of dowry or harassment of the deceased by the family members of her in-laws, who were living separately and doing separate business. The prosecution has suppressed the genesis of the alleged occurrence. Learned counsel for the appellants submits that the possibility cannot be ruled out that Jaiwanti might have received burn injuries accidentally and subsequently, with intention to implicate all the members of her in-laws family, she has named all of them, in order to take revenge for not giving her both the rooms in the ancestral house. Crl. A. No. 757-DB of 2003 -12- 19. On the other hand, learned Additional Advocate General, Haryana, supported the judgment of conviction and the order of sentence, passed by the trial court and submits that the appellants have been rightly convicted and sentenced. 20. We have considered the rival contentions of learned counsel for the parties and perused the record of the case. 21. In the present case, the prosecution case is based upon the dying declaration (Ex.PJ) made by Jaiwanti. There is no other direct evidence or witness, who had seen all the accused putting the deceased on fire. Though as per the dying declaration of Jaiwanti, her husband Dilbagh Singh was present at the time of the occurrence and he was given beatings by all the accused, and in his presence, all the accused had set Jaiwanti on fire. But even as per the statement (Ex.PA) of Dilbagh Singh, recorded under Section 161 Cr.P.C., he was not present at the time of the occurrence and had not witnessed the occurrence. According to the version given by him in that statement, on the day of occurrence, in the evening, he had gone for latrine and his wife was at his house. When he returned to his house at about 7.15 PM, he saw his mother, father, both brothers and their wives coming out of the house. On entering his room, he found that his wife was lying on the floor in the burnt condition. Thus, according to this statement, he had not seen the occurrence. He only stated that on enquiry, his wife told him that the accused had sprinkled kerosene oil upon her and set her on fire. While appearing in the court as PW.1, Dilbagh Singh did not support the Crl. A. No. 757-DB of 2003 -13- aforesaid version. On being declared hostile, in his cross-examination, he had categorically stated that he did not give any such statement to the police. He further stated that his mother Bhartho, father Ishwar Singh, brother Inder Singh and his wife Rani were residing at village Meham for the last 6/7 years and his another brother Dharam Pal (now dead) along with his wife Kamlesh was residing separately in village Bahu Akbapur, whereas he (Dilbagh Singh) along with his wife Jaiwanti was living in the same village separately. He also stated that none of the accused had demanded any dowry from the deceased. The other witness, namely Dhup Singh (PW.8), brother of the deceased, has been examined by the prosecution, in order to prove the alleged harassment and beating of the deceased at the hands of the accused on account of demand of dowry. The trial court has not believed the version of the prosecution with regard to harassment of the deceased on account of demand of dowry. However, while relying upon the alleged dying declaration made by the deceased, all the six accused have been convicted and sentenced for the offence under Section 302 IPC. 22. Now, the question arising for consideration is : Whether the alleged dying declaration is without any suspicion and is the true and voluntary statement of the deceased, which fully inspires confidence of the court to the extent that only on the basis of the said statement, conviction of six persons under Section 302 IPC can be upheld without any corroboration. 23. It is well settled, as has been held long back by the Hon'ble Supreme Court in Mannu Raja v. The State of Madhya Pradesh, (1976) 2 Crl. A. No. 757-DB of 2003 -14- SCR 764, that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. It is also well settled, as held in Rasheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264, that where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. Recently, the Hon'ble Supreme Court in Sharda v. State of Rajasthan, 2010 (1) RCR (Criminal) 565, has held as under : “Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross- examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.” Crl. A. No. 757-DB of 2003 -15- The dying declaration is a substantive piece of evidence and veracity of the same has to be considered in the facts and circumstances of the case. It 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, its weight determined by reference of the principle governing the weightage of evidence. Merely because it was recorded by the Judicial Magistrate, it cannot be taken as ipso facto correct and reliable. The recording of a dying declaration by the Judicial Magistrate in itself is not a certificate of its reliability and truthfulness. Its reliability and truthfulness is to be considered by the court, in the light of the facts and circumstances of the case. 24. In the present case, on carefully examining the alleged dying declaration (Ex.PJ) made by the deceased, we find the same suspicious for many reasons, and in our opinion, it is not safe to rely upon the said dying declaration to convict six persons for the offence under Section