CRA No.436-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.436-SB of 2002 Date of Decision : July 30, 2010 Harjit Singh and another .......Appellants Versus State of Punjab .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. A K Walia, Advocate, with Ms. Deipa Singh, Advocate/Amicus Curiae, for the appellants. Mr. Mehardeep Singh, DAG, Punjab. **** JITENDRA CHAUHAN, J. 1. The present criminal appeal has been preferred by the appellants, namely, Harjit Singh and Baljit Kaur, challenging the judgment and order dated 9.01.2002, passed by Additional Sessions Judge, Ludhiana (hereinafter as 'trial Court'), convicting the accused (herein appellants) for committing offence under Section 304-B IPC and sentencing each of them to undergo rigorous imprisonment for a period of seven years. 2. The contents of the FIR No.160 dated 4.8.2000 which is based upon dying declaration of deceased, namely, Deep Kaur and the same reads as under:- "The deceased was married with accused Harjit Singh about 6 years prior to the date of occurrence. Her parents resided at Delhi. Two children were born out of the wedlock. The parents of the deceased had given dowry as per their CRA No.436-SB of 2002 -2- capacity at the time of marriage. Despite that, the family of in- laws of the deceased used to harass her on the ground that she had brought meagre dowry. They used to ask her what consideration she wanted for divorce. The deceased talked to her father Lachhman Singh (PW3) and her mother Balwinder Kaur and told them that she was being harassed by the members of the family of her in-laws for dowry. After about one year of the marriage, the father of the deceased arranged Rs.50,000/- in cash and paid the same to the mother-in-law of the deceased. He made entreaties to the family of her in-laws not to harass her in future. After about two years of the marriage, all the four accused again started taunting the deceased. The father of the deceased then again paid a sum of Rs.35,000/- to accused Baljit Kaur. About 3 to 4 months prior to the occurrence, the accused again started harassing the deceased. Upon this the father of the deceased, her brother Devinder Singh (PW1) and her sister's husband Sukhdev Singh (PW4) came to Jagraon and made a report to the Police Station. In the Police Station, the accused gave assurance that in future they would not harass the deceased and would keep her with affection. On the night intervening 3.8.2000 and 4.8.2000, when the deceased was going to sleep, accused Harjit Singh (her husband) quarrelled with her and told her that he did not want to cohabit with her. On 4.8.2000 at about 6.30 AM, the deceased had hardly entered the kitchen to prepare tea when all the accused followed her and came within the kitchen. Accused Baljit Kaur and Daljit Kaur caught hold of the deceased from her CRA No.436-SB of 2002 -3- arms. Accused Gurmit Singh poured kerosene from the kerosene lump on her person and accused Harjit Singh lighted a match and set the deceased afire. The deceased raised alarm but none came to help her. When she was burnt, the accused took her to Civil Hospital, Jagraon and thereafter to DMCH, Ludhiana. She reported that she had been burnt by the accused with a view to murder her as she had not brought sufficient dowry." 3. Charges under Section 304-B IPC, were framed against the accused-appellants to which, they pleaded not guilty and claimed trial. 4. In order to substantiate the charges against the accused, the prosecution examined as many as 10 witnesses, viz., Devinder Singh, brother of the deceased as PW1; Dr. R S Grewal, Civil Hospital, Ludhiana as PW2; Lachhman Singh-complainant as PW3; Sukhdev Singh Sodhi, who is the deceased's sisters' husband as PW4; Gurminder Singh, Draftsman, who proved the site plan Ex.PE as PW5; ASI Harbans Singh as PW6; Dr. R K Karkara, Civil Hospital, Jagraon as PW7; Dr. Anita, DMCH as PW8; Dr. Rajeesh Modi, DMCH, Ludhiana as PW9; ASI Charanjit Singh, Investigating Officer as PW10. 5. In their statements under Section 313 Cr.P.C., both the accused- appellants denied all the allegations of the prosecution case and pleaded false implication in the case. In defence, they examined as many as four witnesses. Inderjit Singh, DW1, is a junk seller and deposed that about 1 ½ years ago, when he was going for his morning walk, he found that the deceased had placed herself on the railway track with a view to commit suicide. He saved her from the train that was going from Jagraon side to CRA No.436-SB of 2002 -4- Ferozepur side and on enquiry, the deceased told him that she wanted to die. Kulbir Singh, appeared as DW2, deposed that on 4.8.2000, he was going to his shop from his house and when he reached near the house of the appellants, he heard a commotion there. He went inside their house and found that the deceased had caught fire and accused Baljit Kaur and Daljit Kaur were extinguishing the fire. He further deposed that the deceased was declaring that she had burnt herself and she should be saved. Ram Murti, DW3, also corroborated the version of DW2. Sanjiv Malhotra, DW4, who owned a PCO in the vicinity, deposed that on 4.8.2000, the accused had made a phone call to Delhi and bill, Ex.DE, was issued. In his cross-examination, he stated that the call mentioned in Ex.DE is dated 14.8.2000. 6. The learned trial Court, after hearing both the parties, discharged the accused-appellants for the offence punishable under Section 302 IPC but convicted them under Section 304 IPC and sentenced them for the term as indicated in para 1 of this judgment, vide judgment and order dated 9.2.2002, which is under challenge in the present criminal appeal. The co- accused, namely, Gurmit Singh and Daljit Kaur, were acquitted. 7. Learned counsel for the appellant has submitted that the deceased and appellant No.1 led a happy married life for six years. The deceased was matriculate and during the period of six years, she did not write even a single letter to her parents with regard to maltreatment on account of demand of dowry. The learned counsel has further argued that it has come on record that the deceased was under depression and had suicidal tendencies. This fact was concealed by the deceased and her parents at the time of marriage. The deceased was being treated by one Dr. Himanshu CRA No.436-SB of 2002 -5- Sharma of Pitampura, Delhi. The deceased had gone to Delhi in June, 2000 and returned to her matrimonial home on 21.7.2000. During this period also, she remained under the treatment of Dr. Himanshu Sharma, who had issued the prescription slip which was duly proved as Ex.DD during trial. Dr. Himanshu had specifically remarked that the deceased should be kept under watch as had suicidal tendencies. The complainant-Lachhman Singh, PW3, father of the deceased also admitted the same. 8. It has been further submitted that the version of the appellant regarding suicide of the deceased is also not corroborated from the medico- legal record and from the statement of Dr. Anita Jain, PW8, who admitted the deceased to the hospital and recorded the history of burns after questioning the deceased. As per the statement of Dr. Anita Jain, the deceased caught fire while in the sitting position. Learned counsel has stated that this fact also falsifies the prosecution story that the deceased was caught by the appellants and set her on fire. 9. It has been further contended by learned counsel for the appellants that the case of the prosecution is based on the dying declaration recorded on 4.8.2000 at 6.30 PM by ASI Charanjit Singh, PW10, which was proved as Ex.PL. Learned trial Court, after having examined the dying declaration, rejected the same by holding that the deceased was not in a position to make such a detailed statement. The trial Court has given detailed and cogent reasons for rejecting the dying declaration and recorded that the Investigating Officer appears to have himself recorded the statement of the deceased and obtained thumb impression in stead of signatures. Learned counsel has further stated that after recording the dying declaration, the investigation was conducted on pre-determined lines in accordance with the CRA No.436-SB of 2002 -6- allegations made therein and, therefore, the entire investigation is tainted and manipulated. Learned counsel has stated that the learned trial Court has not given sufficient reasons to rely on the statement of ASI Charanjit Singh, PW10, who had recorded the dying declaration after rejecting the same. 10. Learned counsel has further argued that all the PWs, being members of the immediate family of the deceased, were interested witnesses. The credibility of ASI Charanjit Singh, who recorded the FIR, already stands discredited by the trial Court by rejecting the dying declaration recorded by him. Learned counsel has further submitted that as regards the payment of Rs.50,000/- and Rs. 35,000/- to the appellants cannot be relied as neither the dates have been mentioned nor the source of the said amount has been disclosed. Moreover, the demands were old and stale and not soon before the death. As regards the allegation made by Lachhman Singh, PW3, regarding some incident three months prior to the occurrence is also not proved. 11. Learned counsel has further submitted that the conduct of the appellants immediately after the alleged occurrence also proves their innocence. Appellant No.1 made a phone call from the PCO of Sanjiv Malhotra, DW4, to the parents of the deceased informing them about the occurrence. He took the deceased to Civil Hospital at Jagraon and thereafter to the DMCH, Ludhiana. 12. On the other hand, learned counsel for the State has argued that though the dying declaration has been disbelieved, but there is sufficient material on record to establish that the appellants are perpetrators of the crime in the instant case. 13. I have heard learned counsel for the parties and perused the record CRA No.436-SB of 2002 -7- with their able guidance. 14. Admittedly, the marriage took place about 6 years prior to the occurrence. From the perusal of Ex.DD, which is duly proved and admitted by the complainant-Lachhman Singh, PW3, father of the deceased, it is made out that the deceased had suicidal tendencies. It has been specifically mentioned in Ex.DD by the doctor that a complete watch should be kept on the deceased because of her having suicidal tendencies. 15. There is allegation of payment of Rs.50,000/- and Rs.35,000/- by the complainant-Lachhman Singh to the appellants. However, except this bald allegation of payment, no evidence has been produced with regard to the source of the alleged amount paid. Moreover, the payment itself is not established. There is no specificity of time as well regarding this payment. In the absence of the same, it cannot be accepted that, in fact, a demand with regard to said amount was raised and it was met by the complainant. 16. As regards the submission that the complaint was lodged against the appellant with the Police Station Jagraon about three months prior to the occurrence, the said complaint is stated to be made orally. However, there is nothing on record to substantiate the same. The prosecution has neither produced any record of the Police Station nor examined any police official to establish this contention. 17. The dying declaration recorded by ASI Charanjit Singh, PW10, was not believed by the learned trial Court. It has recorded cogent reasons for not accepting the dying declaration. 18. Therefore, the credibility of ASI Charanjit Singh, PW10, is eroded and it is not safe to rely on his statement. From the record, it is made out that the entire case appears to have been investigated on the lines of this CRA No.436-SB of 2002 -8- dying declaration. 19. The deceased was a matriculate but there is no allegation that she ever wrote any letter to her family with regard to demand of dowry or harassment. 20. In the instant case, the mental status of the deceased is of paramount importance. The deceased had a history of mental ailment for which she was under treatment even before her marriage with applellant, Harjit Singh. This fact is duly proved from Ex.DD which is admitted by the complainant, PW3. The statement of Dr. Anita Jain also negates the circumstances projected by the prosecution with regard to the injuries suffered by the deceased. 21. On appreciation of all the evidence on record, the case of the prosecution becomes doubtful, particularly in view of the mental status of the deceased and the remarks of Dr. Himanshu as noticed in Ex.DD, admitted by the complainant, the appellants deserve the benefit of doubt. 22. Keeping in view the above facts, the appellants are given the benefit of doubt. Consequently, the present appeal is allowed. The judgment and order dated 9.01.2002, passed by the Additional Sessions Judge, Ludhiana, is set aside. The appellants are stated to be on bail. Their bail bonds shall stand discharged. ( JITENDRA CHAUHAN ) 30.07.2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No