IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.254-DB of 1998 Date of decision: 21.01.2007 Jaswant Singh -----Appellant. Vs. State of Haryana. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S.D. ANAND Present: Mr. R.S. Mamli, Advocate for the appellant. Mr. P.S. Sullar, Sr. DAG, Haryana. ----- Adarsh Kumar Goel, J. The appellant is aggrieved by his conviction under Section 302 IPC, for which he has been sentenced to undergo life imprisonment and to pay fine of Rs.1,000/-, in default, to undergo further rigorous imprisonment for six months. Case of the prosecution is that deceased Jarnailo Devi was married to the appellant about four months prior to the occurrence. The appellant did not like her and used to quarrel with her and thus, asked her to leave the house. The appellant was living jointly with his elder brother Ajmer Singh. On 8.12.1996 at 6-15 A.M., Jarnailo Devi got up and came out of her room for doing the domestic work. She was asked by her jethani (husband’s elder brother’s wife) Criminal Appeal No.254-DB of 1998 to go inside her room as it was too early and Jarnailo Devi went inside the room. Her husband picked up a plastic can of kerosene oil and sprinkled the oil on her and then set her on fire by lighting the match stick. She raised alarm “Bachao – Bachao” (Save - Save). Her jethani Phulo Devi and jeth Ajmer Singh came to the spot and extinguished the fire. The burnt clothes were removed and she was made to wear other clothes by her jethani. She was removed to Gaba Hospital. SI Satbir Singh (PW-9) reached the hospital on receiving the information and after obtaining opinion of the doctor (Ex.PJ/1), declaring Jarnailo Devi fit to make statement, recorded her statement (Ex.PK) in the presence of Dr. Paramjit Singh (PW-8). On the basis of said statement, FIR under Section 307 IPC was registered. SI Satbir Singh went to the spot, prepared rough site plan, recovered plastic can and burnt clothes and arrested the accused. Jarnailo Devi died in the hospital on 11.12 .1996, on which, case was converted to Section 302 IPC. Further investigation was conducted by ASI Gian Singh (PW-7) who went to the hospital, prepared inquest report and sent the dead body for post-mortem examination. Post-mortem was conducted by Dr. B.S. Deswal (PW-1) on 12.12.1996 at 10.35 a.m. According to him death was due to shock on account of the burns. The burnt area was 80% and was ante mortem in nature which was sufficient to cause death. After investigation, the accused was challaned. The prosecution examined nine witnesses. The substance of evidence recorded is an under:- PW-1 Dr. B.S. Deswal proved the post-mortem report Ex. PA, according to which, the burnt area of the deceased was 80 per 2 Criminal Appeal No.254-DB of 1998 cent and burns were ante-mortem in nature which were sufficient to cause death. PW-2 Ram Kumar, Constable proved the scaled site plan EX. PD. PW-3 Randhir Singh HC proved the recovery memo Ex. PE, whereby the can of kerosene oil and burnt pieces of clothes were recovered from the spot as well as the recovery memo EX.PF, whereby the sealed parcel handed over to him after post-mortem examination, was taken into possession. PW-4 Amar Singh, Constable deposed about the delivery of special report of this case to the jurisdiction Magistrate. PW.5 Leela Devi and PW-6 Raj Kumar supported the prosecution case about the oral dying declaration made to them by the deceased. PW-7 ASI Gian Singh and PW-9 SI Satbir Singh gave an account of the investigation conducted by them. PW-8 Dr. Paramjit Singh proved the application Ex.PJ, opinion Ex. PJ/1, statement of Jarnailo Devi Ex.PK, his endorsement there on Ex.PK/1, the memo Ex.PL, M.L.R. of Jarnailo Devi Ex.PM and the memo Ex.PN sent by him about the death of Jarnailo Devi to the police. The affidavits and report of FSL were tendered in evidence by the Public Prosecution and he gave up Phulo wife of Ajmer Singh, Phulo wife of Mam Chand and Ajmer Singh, PW as having been won over by the accused. 3 Criminal Appeal No.254-DB of 1998 The accused admitted the marriage with the deceased, but denied having set her on fire. He stated that he liked his wife. On 8.12.1996, he had gone to the fields to answer call of nature. His wife was alone at home. When he came back, he came to know that she caught fire, accidentally, while burning the chullah (hearth). He took her to the hospital and sent intimation to his in-laws. No dying- declaration was made by his wife. He examined Phullo Devi (DW-1). The trial Court after considering the evidence on record held the case of the prosecution to have been proved beyond reasonable doubt. Reasons given by the trial Court are as under:- (i) Statement of the deceased (Ex.PK) was recorded in the hospital at 11-50 A.M. which was counter-signed by Dr. Paramjit. She specifically named the appellant and did not hold anyone else responsible. The genuineness of the said statement was established by the evidence of PW-8 Dr. Paramjit Singh and PW-9 SI Satbir Singh; (ii) The fact that dying declaration was not recorded by Magistrate was of no consequence. Though the deceased was alive for three days, as per estimate of the Investigating Officer, she was not expected to survive; (iii) Absence of mention of smell and absence of mention by the doctor at the time of admitting the patient and that the appellant had burnt her, did not affect the veracity of dying declaration. The deceased had changed her clothes and the doctor had mentioned about the smell from her body. 4 Criminal Appeal No.254-DB of 1998 The doctor had also mentioned that the patient stated that she was set on fire by members of her family; (iv) Non-examination of jeth and jethani of the deceased was of no significance. They would have been interested in saving the appellant and would not have been expected to support the prosecution version. We have heard learned counsel for the parties and perused the record. PW-8 Dr. Paramjit Singh, who attended the deceased, in the first instance, stated that the patient was brought to him at 8.20 A.M. by her husband and case history was that she was burnt after sprinkling oil by her in-laws. The smell of oil was present over her body. He gave opinion to the police that she was fit to make statement. Her statement was recorded in his presence. The patient remained conscious throughout. The statement was read over to her, who signed the same. He sent message to the police on arrival of the patient. He proved the MLR. Jarnailo Devi died on 11.12.1996 at 3.15 P.M. In cross-examination, nothing material could be elicited from the said witness. PW-9 SI Satbir Singh recorded the dying declaration. He deposed that he went to the hospital on receiving message and after obtaining opinion of the doctor, recorded statement of the patient in the presence of the doctor, which was read over to the patient who signed the same as correct. Nothing material could be elicited in cross-examination to challenge veracity of the version given by the said witness. Dr. B.S. Deswal, who conducted post-mortem 5 Criminal Appeal No.254-DB of 1998 examination, stated that the death was on account of burn injuries. PW-6 Raj Kumar, brother of the deceased, deposed that he reached the hospital on receiving the message and the deceased told him that her husband had set her on fire. Leela Devi (PW-5) is mother of the deceased, who also reached the hospital on receiving the message and was told by her daughter that she was set on fire by her husband. In view of above evidence, the case of the prosecution stands fully established. Learned counsel for the appellant submitted that dying declaration could not be accepted the same having not been recorded by Magistrate and case of the prosecution could not be accepted as jeth and jethani of the deceased were not examined as witnesses. He also submitted that there was no report of the Forensic Science Laboratory showing that kerosene was found on her clothes. We do not find any merit in the contentions raised. It is well settled that dying declaration by itself can be made basis of conviction if the same is genuine. It is not necessary to look for corroboration. Though, generally, dying declaration must be recorded by a Magistrate with a certificate of Doctor about fitness of the declarant and it should be in question - answer form, if the Court is convinced of trustworthiness of the statement which inspires confidence, the same can be acted upon. Reference may be made to the law laid down by the Hon’ble Supreme Court in Arvind Singh v. State of Bihar AIR 2001 SC 2124 and Ramilaben Hasmukhbhai Khristi v. State of Gujarat AIR 2002 SC 2996. 6 Criminal Appeal No.254-DB of 1998 In the present case, the dying declaration inspires confidence. The same was recorded in the presence of the doctor. There is also corroboration by PW-5 Leela Devi and PW-6 Raj Kumar about the version of the declarant. It is not the case of the defence that it is a case of suicide. According to the defence, it was an accident only, which plea cannot be accepted in view of evidence on record. The medical evidence is categorical that right in the beginning, the patient made her statement to Dr. Paramjit Singh that she was set on fire by her in-laws. He also found kerosene on her body. In these circumstances, the death was clearly homicidal and not suicidal. The deceased had no reason to falsely implicate the appellant. Non-examination of Jeth and Jethani and not obtaining of chemical examination report about kerosene on clothes does not create any infirmity in these circumstances. In view of above, we do not find any merit in the appeal and the same is dismissed. ( ADARSH KUMAR GOEL ) JUDGE January 21, 2007 ( S. D. ANAND ) ashwani JUDGE 7