IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 841-DB of 2002 DATE OF DECISION : 02.07.2010 Shameem .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Ms. Kanwal Singh, Advocate, amicus curiae, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Shameem was tried by the court of Additional Sessions Judge, Panipat, under Section 302 IPC, for committing the murder of his wife Naiyma. Vide judgment of conviction dated 11.9.2002 and the order of sentence dated 16.9.2002, the appellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of six months. 2. In the present case, the appellant was married with Naiyma 8/9 years prior to the day of occurrence. After the marriage, the appellant along with his wife was residing in a rented room at Panipat and was doing labour Crl. A. No. 841-DB of 2002 -2- work in a factory. On 8.11.1998 at 8.50 AM, he got admitted his wife in the Hospital in burnt condition. Dr. S.K. Gupta (PW.3) medico legally examined the patient and as per the MLR (Ex.PF), superficial to deep burns to the extent of 85% to 90% were found all over her body, except some part of lower limbs. On the same day at 9.05 AM, the hospital authorities sent ruqa (Ex.PJ) informing the police about admission of the wife of the appellant in burnt condition. On receiving the said information, ASI Rajiv Kumar (PW.8), Incharge Police Post Kishanpura went to General Hospital, Panipat and moved an application (Ex.PG) seeking opinion of the concerned Doctor about the fitness of the patient to make the statement. On the same day, at 10.30 AM, Dr. S.K. Gupta, gave the opinion that the patient was fit to make the statement. Thereafter, ASI Rajiv Kumar went to the Ilaqa Magistrate and moved an application (Ex.PN) to record the statement of the patient. Thereupon, Ms. Ritu Garg, Judicial Magistrate Ist Class, Panipat, went to General Hospital, Panipat and sought the opinion of the doctor about the fitness of the patient to make statement. At 11.35 AM, Dr. S.K. Gupta again opined that the patient was fit to make statement. Thereafter, the Judicial Magistrate recorded the statement (Ex.PH/2) of Naiyma, wherein she had stated that her husband had given beating to her with wood and then after closing the door, he set her on fire by sprinkling kerosene oil on her body. Her Devar Mehrudin came, but her husband did not open the door. She further stated that she did not know as to how she was taken out of the room. Thereafter, vide opinion (Ex.PH/1), Dr. S.K. Gupta certified Crl. A. No. 841-DB of 2002 -3- that the patient remained conscious during the course of recording her statement. Thereafter, ASI Rajiv Kumar moved an application (Ex.PN/1) before the Magistrate requesting her to take copy of the statement of the patient, which was allowed on the same day by the Magistrate vide order (Ex.PN/2). Copy of the statement of the patient was obtained and on the basis of the same, the formal FIR (Ex.PO/2) under Section 307 IPC was registered against the appellant on 8.11.1998 at 1.20 PM. Thereafter, ASI Rajiv Kumar went to the place of occurrence and prepared the rough site plan (Ex.PQ) with correct marginal notes. From the place of occurrence, one curtain soaked in kerosene oil, one match box and a five liters cane, out of which smell of kerosene oil was coming out, were taken into possession vide memo (Ex.PL), which was attested by Krishan Gupta, Municipal Commissioner, Panipat and Constable Davinder Singh (PW.5). 3. On the next day i.e. on 9.11.1998 at 5.30 AM, Naiyma died due to burn injuries. On receiving the information about her death, offence under Section 302 IPC was added. At 3.30 PM, Dr. S.K. Khurana (PW.4) conducted her post mortem examination of the deceased. In the post mortem report (Ex.PK), the doctor opined that cause of death of the deceased was shock due to burns which were ante-mortem in nature and were sufficient to cause death in natural course. The appellant was arrested on 9.11.1998. 4. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offence under Section 302 IPC, to which he did not plead guilty and claimed trial. Crl. A. No. 841-DB of 2002 -4- 5. In support of its case, the prosecution examined nine witnesses. PW.1 Constable Jagbir Singh and PW.2 Dilawar Singh, Record Keeper, Civil Hospital, Panipat are the formal witnesses. PW.3 Dr. S.K. Gupta proved the MLR of the patient as well as the medical opinion given by him regarding the fitness of the patient to make statement. PW.4 Dr. S.K. Khurana proved the post mortem report of the deceased. PW.5 Constable Davinder Singh is the witness to the recovery of one curtain soaked in kerosene oil, one match box and a five liters cane, vide memo Ex.PL. PW.6 Mehrudin (brother of the appellant) turned hostile. PW.7 SI Surinder Singh had conducted partly investigation in the case. PW.8 SI Rajiv Kumar is the Investigating Officer of the case. PW.9 Ms. Ritu Garg, Judicial Magistrate Ist Class, has proved the dying declaration of the deceased, recorded by her. 6. In his statement under Section 313 Cr.P.C., appellant Shameem denied all the allegations appearing against him in the prosecution evidence. He stated that he had been falsely implicated in the case. He was not present at the time of burning of his wife. He was called later on from his factory. His wife was not keeping good health because of some mental diseases. There was no dispute between them. She might have caught fire due to some accident, while preparing food or she might have burnt herself. She was not getting relief from her diseases in spite of treatment. After the burn injuries, she did not speak a single word and became unconscious. She remained unconscious till her death. The appellant stated that he was innocent. Crl. A. No. 841-DB of 2002 -5- 7. In support of his defence version, the appellant examined two witnesses. 8. DW.1 Jalaludeen stated that he was residing in the same building on rent, where appellant along with his wife Naiyma (deceased) was living. He stated that on the day of occurrence, he heard noise from the room of the appellant. When they reached there, they found that room was locked from inside and Naiyma was in flames. This witness and the other persons broke open the door and tried to save Naiyma. According to him, at that time, the appellant was away to the factory. He further stated that two brothers of the appellant were also residing in the same building. One of them, namely Neemudeen, was sent to bring the appellant from the factory. Later on, the appellant reached the spot and took his wife to Batra Hospital and then to Civil Hospital, Panipat. According to this witness, deceased Naiyma was having some mental trouble and she was got treated by her father. There was no dispute of any kind between the appellant and his deceased wife. 9. DW.2 Mohd. Haneef, the father of the deceased, stated that his daughter was mentally retarted. He got her treated even before marriage and after the marriage. She used to come to him between one and two months for treatment and getting medicines. There was no differences between the appellant and his wife. He further stated that on the day of occurrence, he came to Panipat. His daughter was lying in the Hospital. She told him that she had committed mistake. According to this witness, he stayed there for 2- Crl. A. No. 841-DB of 2002 -6- 3 hours and thereafter left for his village. After getting information about the death of his daughter, he came to Panipat after three days. 10. The trial court, after considering the evidence on record, while relying upon the dying declaration of the deceased and disbelieving the defence version that the deceased committed suicide, convicted and sentenced the appellant, as indicated above. 11. We have heard the arguments of learned counsel for both the parties and have gone through the impugned judgment as well as the record of the case. 12. Learned counsel for the appellant argued that case of the prosecution wholly rests upon the dying declaration (Ex.PH/2) made by deceased Naiyma, on the basis of which the trial court has convicted the appellant. She argued that when the dying declaration was made by the deceased, she was not fit to make statement, as she was having deep burns to the extent of 85% to 90%. She further argued that the version given in the said dying declaration has not been corroborated by any other evidence. Rather, PW.6 Mehrudin has not supported the prosecution version, which creates a doubt about the version given in the dying declaration that in spite of his coming at the spot, the appellant did not open the door of the room. Thus, according to learned counsel, the trial court has committed grave illegality, while placing reliance on the said dying declaration (Ex.PH/2) for convicting the appellant for the offence of murder. Learned counsel further argued that the trial court has not properly appreciated the defence taken by Crl. A. No. 841-DB of 2002 -7- the appellant, particularly the statements of DW.1 Jalaludeen and DW.2 Mohd. Haneef. According to her, DW.1 Jalaludeen, who was an independent witness residing in the same building on rent, where appellant along with his wife was living, has categorically stated that at the time of the occurrence, the appellant was not present. He was in factory, from where he was called subsequently, after the occurrence. Learned counsel further argued that both the defence witnesses have further proved the defence version that the deceased was mentally retarded, due to which she had committed suicide. Learned counsel argued that there was no dispute between husband and wife and there was no motive for the appellant to put kerosene oil on his wife and murder her. The neighbourer (DW.1 Jalaludeen) as well as the father (DW.2 Mohd. Haneef) of the deceased, while appearing in the court, have categorically stated that the appellant never harassed the deceased on any account. In light of these arguments, learned counsel for the appellant argued that conviction of the appellant is not sustainable and he is liable to be acquitted of the charge framed against him. 13. On the other hand, learned counsel for the respondent-State, supported the judgment of conviction and the order of sentence, passed by the trial court. 14. After considering the submissions made by learned counsel for the parties and going through the impugned judgment and order as well as the record of the case, we do not find any substance in the arguments of Crl. A. No. 841-DB of 2002 -8- learned counsel for the appellant. 15. The prosecution case is based upon the dying declaration (Ex.PH/2) made by the deceased. The said dying declaration was recorded by Ms. Ritu Garg, Judicial Magistrate Ist Class, Panipat, on the day of occurrence at 11.35 AM in General Hospital, Panipat, in the presence of Dr. S.K. Gupta. Before recording the statement, the Judicial Magistrate obtained opinion (Ex.PH) of the doctor about fitness of the patient to make statement. Thereafter, in the presence of the Doctor, the Judicial Magistrate recorded the statement of the patient, and after recording of the statement, Dr. S.K. Gupta, vide certificate (Ex.PH/1), certified that the patient remained conscious during the course of recording her statement. Ms. Ritu Garg, Judicial Magistrate, while appearing in the court as PW.9, has proved that she had recorded the statement of the deceased in the Hospital, truly, which was duly thumb marked by the deceased. At the time of recording of her statement, doctor was present and deceased Naiyma was fully conscious during the recording of her statement. At that time, except the appellant, no other relative of the deceased was person. Dr. S.K. Gupta (PW.3) has also stated that at the time, the patient was admitted in the hospital, she was fully conscious and was able to make the statement. In this regard, on the application (Ex.PG) moved by the police, he gave opinion (Ex.PG/1) at 10.30 AM that the patient was fit to make statement. Thereafter, at 11.35 AM, vide opinion (Ex.PH), he again declared the patient fit to make statement and Ms. Ritu Garg, Judicial Magistrate Ist Class, Panipat, Crl. A. No. 841-DB of 2002 -9- recorded the statement of the patient in his presence. During the time, the statement was recorded, the patient remained conscious and fit. He further stated that the certificate (Ex.PH/1) to this effect was also issued by him. Thus, from the statements of the aforesaid two reliable and trust-worthy witnesses, namely PW.9 Dr. Ritu Garg, Judicial Magistrate Ist Class, and PW.3 Dr. S.K. Gupta, it has been fully established that when deceased Naiyma made statement (Ex.PH/2) to the Judicial Magistrate Ist Class, she was fully conscious and fit to make the statement. The contention of learned counsel for the appellant that since the deceased was having deep burns to the extent of 85% to 90%, therefore, she was not in a position to make the statement, cannot be accepted. In her dying declaration (Ex.PH/2), deceased Naiyma had stated that her husband gave beating to her after closing the door and set her on fire by sprinkling kerosene oil on her body. It has also come in evidence that when the said statement was made by the deceased to the Judicial Magistrate, neither her father nor any of her relatives, except her husband, was present. There was no reason for her to make a false statement against her husband. No body was there to tutor her to make that statement. In our opinion, there was no reason for the Judicial Magistrate to record a wrong statement. Therefore, the contention of learned counsel for the appellant that no such statement was recorded as the deceased was not in a position to make a statement, cannot be accepted. 16. Much has been argued by learned counsel for the appellant that PW.6 Mehrudin, who according to the dying declaration (Ex.PH/2) came on Crl. A. No. 841-DB of 2002 -10- the scene and tried to got open the door in order to save the deceased, has not supported the prosecution version. On the basis of his statement, learned counsel argued that the statement made by the deceased has not been corroborated by any of the prosecution evidence, therefore, conviction of the appellant solely on the basis of the uncorroborated dying declaration of the deceased, is not safe. 17. In Ravikumar v. State of T.N., (2006) 9 Supreme Court Cases 240, the Hon'ble Supreme Court has held that there is no 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 the rule of prudence. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration without any further corroboration. In the present case, after carefully appreciating the evidence led by the prosecution, particularly the statements of Dr. S.K. Gupta (PW.3) and Ms. Ritu Garg, Judicial Magistrate Ist Class (PW.9), we are satisfied that the deceased made the dying declaration (Ex.PH/2) at the time when she was in a fit mental condition to make the statement, and her statement, which was made voluntarily, was correctly recorded by the Judicial Magistrate in the presence of the doctor. In the aforesaid judgment of the Supreme Court, it has been observed that while dealing with case of the prosecution based on dying declaration, the court should always be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. We Crl. A. No. 841-DB of 2002 -11- have carefully examined the prosecution evidence as well as the defence evidence. We do not find any material/evidence which suggests that the statement made by Naiyma was result of tutoring or prompting or a product of imagination. At the time of recording the said statement, except the appellant, no relation of the deceased was present in the Hospital. The deceased made the declaration (Ex.PH/2) levelling allegations against her husband, who was very much present in the hospital. Therefore, there was no occasion of tutoring or prompting the deceased to make the said statement. 18. During the course of arguments, learned counsel for the appellant argued that the dying declaration (Ex.PH/2) is a brief statement and does not contain details of the occurrence. In our opinion, a dying declaration, which was voluntarily made by the deceased in a fit state of mind, cannot be discarded on the ground that it was a brief statement and did not contain details of the occurrence. In Surajdeo Ojha v. State of Bihar, 1980 Supp. SCC 769, it was held by the Hon'ble Supreme Court that on such ground, the dying declaration cannot be discarded. Rather, the shortness of the statement itself guarantees the truth. 19. Thus, in light of the aforesaid discussion, we do not find any illegality or infirmity in the dying declaration made by the deceased, which was truly recorded by the Judicial Magistrate, and in our opinion, the trial court has rightly relied upon the said dying declaration, which fully inspires confidence. Crl. A. No. 841-DB of 2002 -12- 20. We have further examined the defence taken by the appellant. In his statement under Section 313 Cr.P.C., the appellant stated that at the time of the alleged occurrence, he was not present in his room. His wife was suffering from some mental diseases, for which she was getting treatment. She might have caught fire due to some accident, while preparing food or might have burnt herself. At that time, he was not present and he was called later on from his factory. In support of this version, he has examined two witnesses. The statements of both these witnesses do not inspire any confidence and the same appear to be concocted. In defence, except the bald statements of these two witnesses, no evidence, whatsoever, has been led by the appellant to prove that the deceased was suffering from some mental disease and was getting treatment from some doctor. DW.1 Jalaludeen, who is neither a family friend nor related to the deceased, has stated that father of the deceased got her treated from some Hakim before the marriage and even after the marriage. He had not stated that on what basis, he had made that statement. It is not his stand that father of the deceased told him about that. DW.2 Mohd. Haneef, father of the deceased, who was residing in village Gohawar, District Bijnaur (U.P.), stated that after receiving the information, he came to the Hospital at Panipat and his daughter told him that she had committed mistake. He stated that after 2-3 hours, he left for his village and then after getting information about the death of his daughter, he came to Panipat after three days. The statement of this witness does not inspire confidence. In our opinion, the appellant has miserably failed to prove his Crl. A. No. 841-DB of 2002 -13- defence, which appears to be concocted later on. 21. In view of the above, we are of the opinion that the trial court has not committed any illegality, while convicting the appellant on the basis of the dying declaration made by the deceased. Thus, we do not find any illegality or infirmity in the impugned judgment and order, and the same is, therefore, upheld. 22. Appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 02, 2010 ( MOHINDER PAL ) ndj JUDGE