IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 424-DB of 2006 DATE OF DECISION : 05.04.2010 Suraj Bhan and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. V.K. Bali, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Accused Suraj Bhan. Rajender and Smt. Nazina (hereinafter referred to as A-1, A-2 and A-3, respectively), have filed this appeal against the judgment of their conviction and the order of sentence, passed by the court of Additional Sessions Judge, Sonepat, whereby they have been convicted under Section 302 read with Section 34 IPC for committing the murder of Nargis (wife of A-1) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each. 2. A-1 is the husband of the deceased. A-2 is the cousin of A-1. A-3 is the wife of A-2. The grand fathers of A-1 and A-2 were real brothers. A-2 is running the Audio and Video Cassettee shop at village Pooth Kalan, Crl. A. No. 424-DB of 2006 -2- Delhi and is residing there along with his wife (A-3). 3. According to the prosecution version, deceased Nargis was married to A-1 in November, 1999. She was residing with her husband in village Kakroi, District Sonepat. On the intervening night of 7/8.7.2003, she was got admitted by her husband Suraj Bhan (A-1) in Civil Hospital, Sonepat with 90% burn injuries. Dr. V.K. Gupta (PW.7) conducted the medico legal examination of Nargis. He found superficial deep injuries on her whole body. The burn injuries were fresh. He sent ruqa (Ex.PD/1 to the police. Thereupon, ASI Balraj Singh (PW.16) reached the Hospital and moved application (Ex.PD/2 seeking opinion of the Doctor about the fitness of the patient to make statement. Dr. V.K. Gupta, vide his opinion (Ex.PD/3) declared the patient unfit to make statement. In the meanwhile, Nargis was referred to Lok Nayak Hospital, Delhi. 4. At 5.10 AM, on 8.7.2003, Nargis was admitted in Lok Nayak Hospital, Delhi. On the same day, at 11.45 AM, Shri J.P. Singh, Sub Divisional Magistrate (HQ) Central District, Delhi, recorded the statement (Ex.PB) of the patient in Lok Nayak Hospital, Delhi, in which she stated that her husband Suraj Bhan caught her and poured kerosene oil upon her. He also caught hold of her hands. Then Gatthu, her Jeth and her Jethani set her ablaze with match stick. They were demanding dowry from her. She had given a sum of Rs. 40,000/-, but they were demanding Rs. 40,000/- more. She told them that her parents were poor. In spite of that, they were demanding more money from her. She further stated that from the day of her Crl. A. No. 424-DB of 2006 -3- marriage, her in-laws were raising demand of various things. 5. On 9.7.2003, ASI Balraj Singh of Police Station Sadar Sonepat went to the Hospital and moved an application (Ex.PN) before the Doctor, seeking his opinion about the fitness of the patient to make statement. The Doctor, vide opinion (Ex.PN/1) declared the patient fit to make statement. When the aforesaid police officer went to record the statement of the patient Nargis, he came to know that the SDM, Delhi had already recorded her statement, therefore, he contacted the SDM, Delhi through SI Anil Sharma of Delhi Police and collected the said statement given by Nargis. On the basis of the said statement, the formal FIR (Ex.PB/2) under Sections 498-A, 307 IPC was recorded against the accused on 10.7.2003. 6. On 10.7.2003, ASI Balraj Singh inspected the spot and vide recovery memo (Ex.PG) took into possession one plastic can (Ex.P1), in which a little kerosene oil was present, and a match box (Ex.P2). 7. On 11.7.2003 at about 1.00 AM (night), patient Nargis succumbed to his injuries. Thereafter, the offence under Section 304-B IPC was added. On 11.7.2003, Dr. Bhim Singh (PW.18) of Lok Nayak Hospital, Delhi, conducted the post mortem of the deceased. In his opinion, the cause of death of the deceased was due to septicemia, consequent upon infected burn injuries, which were ante-mortem and could be caused by flames of fire. 8. On 16.7.2003, A-1 and A-2 were arrested. However, A-3 could not be arrested and challan was filed against A-1 and A-2. During trial, Crl. A. No. 424-DB of 2006 -4- when some of the witnesses were examined by the prosecution, A-3 was arrested and supplementary challan was filed against her. 9. The accused were charge sheeted for the offences punishable under Sections 498-A/304-B IPC and alternatively, they were also charge sheeted for the offence punishable under Section 302 read with Section 34 IPC. The accused did not plead guilty to the charge and claimed trial. 10. In support of its case, the prosecution examined 19 witnesses, out of whom PW.2 Randhir Singh, father of the deceased, PW.3 Seema, real sister of the deceased, who is married to Surender – real brother of A-1, PW.4 Shri J.P. Singh, SDM, Delhi, who recorded the statement of the deceased, which was taken by the prosecution as her dying declaration, PW.16 ASI Balraj Singh, the Investigating Officer of the case, PW.7 Dr. V.K. Gupta, who conducted the medico legal examination of Nargis in Civil Hospital, Sonepat, PW.17 Dr. Arun Goel of Lok Nayak Hospital, Delhi, who produced the treatment record of the patient and PW.18 Dr. Bhim Singh, who conducted the post mortem examination of the deceased Nargis, are the material witnesses. 11. PW.2 Randhir Singh stated that in November, 1999, he married his daughter Nargis with A-1. His second daughter Seema (PW.3) was married to Surender, real brother of A-1. He stated that A-1 used to harass and beat Nargis on account of demand of dowry. According to him, A-2 used to reside in village Kakroi, but he also used to visit village Puth Kalan, Delhi, quite often, where he was doing his business. In his statement, this Crl. A. No. 424-DB of 2006 -5- witness did not level any allegation of harassment and beating against A-2 and A-3 on account of demand of dowry. He stated that on the intervening night of 7/8.7.2003 at about 2.30 AM (night), he received a telephonic message from his daughter Seema, who told him that A-2 had caught hold of the hands of Nargis, A-1 poured kerosene oil on her, whereas A-3 set her on fire. After receiving the said information, he came to General Hospital, Sonepat. The Doctor had referred Nargis to Lok Nayak Jai Parkash Hospital, Delhi, where SDM, Delhi recorded her statement. According to him, his daughter was done to death by all the three accused on account of demand of dowry. In his cross-examination, he has admitted that A-1 and A- 2 are not real brothers. However, their grand-fathers were the real brothers. He also admitted that his daughter Nargis was previously married to one Haroon, a resident of U.P. The said marriage sustained for about four-five months. He further admitted that A-2 used to reside in village Puth Kalan, Delhi, in the house of his uncle, which was situated in front of the house of this witness. However, he denied the suggestion that he had concealed the factum of previous marriage of his daughter Nargis with Haroon from A-1, and he suspected A-2 and A-3 for having disclosed this fact to A-1, after the marriage. 12. PW.3 Seema, in her statement, admitted that she and her sister Nargis were married with A-1 and his real brother Surender, on the same day. She sated that on 7.7.2003 at about 12 night, she heard the shrieks of her sister Nargis. Thereafter, she rushed towards her house. She saw that her Crl. A. No. 424-DB of 2006 -6- sister was lying in the burning condition on the ground and all the three accused were standing there. On enquiry made by her from her sister, she told that A-2 caught hold of her hands, A-1 had poured kerosene oil upon her and A-3 set her on fire with a burning match stick. She further stated that she informed her father about the same through a telephonic message. According to her, the accused used to demand dowry from her sister Nargis and on that account, they set her on fire. In her cross-examination, she has admitted that her sister Nargis was already married before she was married to A-1. However, she denied the suggestion that her father had concealed the fact of previous marriage of her sister Nargis with Haroon from A-1. In her cross-examination, she has also admitted that A-2 is permanent resident of village Puth Kalan, Delhi, however, he resides in village Kakroi. 13. PW.4 Shri J.P. Singh, SDM, Delhi, stated that on 8.7.2003, he recorded the statement (Ex.PB) of Nargis at his own. He had read over the contents of the statement to her and thereafter, she put her thumb impression on the same. He further stated that before recording the statement of Nargis, he had taken the opinion of the Doctor about her fitness to make the statement (this fact has not been established, as no such opinion is available on the record). When the statement of this witness was recorded, he was brought from Tihar Jail, Delhi, where he was lodged in a corruption case. In his cross-examination, he has stated that he was taken to the Hospital by the police for recording the statement of Nargis. However, he stated that he could not name the police official, who had taken him to the Hospital. (This Crl. A. No. 424-DB of 2006 -7- fact has also not been established on record, because neither there is any such request made by the police nor the police officials, namely PW.6 SI Anil Sharma and PW.16 ASI Balkar Singh, the Investigating Officer of the case, who appeared in the case, made statement to this effect). He denied the suggestion put by the defence that he was brought to the Hospital by one Surja of village Puth Kalan, Delhi. It has also come in evidence that on the day of recording the statement of Nargis by this witness, he was on officiating duty, as PW.5 Shri Shamim Akhtar, who was the SDM of the area, was on leave. 14. In their statements under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them. A-1 stated that he is innocent and has been falsely implicated in this case. A-2 and A-3 also pleaded innocence and false implication in the case. They further stated that they have no relation with A-1 and his family members, and for the last more than 35 years, they are residing in village Puth Kalan, Delhi, whereas A-1 is residing in village Kakroi, District Sonepat. In defence, the accused examined 12 witnesses. 15. DW.1 Jeet Ram Solanki, Ex-MLA and DW.2 Brahm Singh stated that they know A-2 for the last so many years. He was running a cassette shop at village Puth Kalan, Delhi. He was also residing with his family in the said village. 16. DW.3 Tara Chand, a resident of village Puth Kalan, Delhi, stated that on the day of occurrence, a telephonic message was received by Crl. A. No. 424-DB of 2006 -8- Randhir Singh, father of deceased Nargis. He brought Randhir Singh to Civil Hospital, Sonepat, in his Maruti van. On enquiry made by Randhir Singh, his daughter told him that her husband had given 2-3 slaps to her. Thereafter, she set herself on fire. 17. DW.4 Jagdish Singh, a resident of village Puth Kalan, Delhi, stated that on 6.7.2003, A-2 came to him and borrowed some money from him to attend a marriage in village Katlana, District Bhiwani. 18. DW.5 Anand Kumar Sharma, Ex-Sarpanch of village Puth Kalan, Delhi, stated that on 7.7.2003, A-2 and his wife (A-3) were present in the village in connection with marriage. They came to the village on 6.7.2003. 19. DW.6 Suman stated that on the day of occurrence, Nargis told her that she will set herself on fire, as she was fed up with life. She further stated that she saw that Nargis had set herself on fire by pouring kerosene on her. This witness tried to extinguish the fire. After some time, husband of Nargis also came there. Thereafter, they shifted her to the Hospital. This witness stated that Seema (PW.3) was not present at that time. 20. DW.7 Amir Jahan, a resident of village Kakroi, stated that the deceased had told her that she will commit suicide and in the evening, this witness came to know that the deceased had died of burning. 21. DW.8 Rajesh Kumar is not the material witness. 22. DW.9 Mahabir Singh is the landlord of Seema (PW.3). He stated that on the night of the occurrence, on hearing the noise, he and his Crl. A. No. 424-DB of 2006 -9- wife woke up at about 11 PM. When they reached the spot, the deceased had already been shifted to the Hospital. Thereafter, Seema asked them to make a call to her father. 23. DW.10 Angrej Singh, a resident of village Kakroi, stated that he attended the marriage of A-1. The marriage party had gone to village Puth Kalan, Delhi, but A-2 had not been invited in the marriage. 24. DW.11 Babli is the wife of Mahabir (DW.9). She has corroborated the statement of her husband Mahabir. 25. DW.12 Rakesh, who is brother of A-1 and a resident of village Kakroi, stated that when SDM, Delhi, recorded the statement of Nargis, he was present in the Hospital. The SDM recorded the statement of Nargis at the instance of Randhir Singh. Nargis did not make any statement to him. 26. The accused also tendered into evidence original voter cards (Ex.D4 and Ex.D5) of A-2 and A-3 of Delhi State, voter list (Ex.D6) of village Puth Kalan. Besides this, certain other documents were also tendered into evidence by the accused. 27. The trial court, after considering the evidence on record, did not convict the accused for the offence under Section 498-A IPC, while coming to the conclusion that regarding the demand of dowry by the accused persons from the deceased, PW.2 Randhir Singh has not corroborated the statement of deceased, recorded by the SDM, Delhi. He has not deposed specifically as to what items or cash was demanded by the accused persons. Regarding the offence under Section 304-B IPC, the trial court held that Crl. A. No. 424-DB of 2006 -10- death of the deceased was not suicidal, but it was homicidal. However, while relying upon the dying declaration (Ex.PB) of the deceased, recorded by PW.4 Shri J.P. Singh, SDM, Delhi, the trial court convicted all the three accused for the alternative charge framed against them for the offence under Section 302 read with Section 34 IPC, for committing the murder of Nargis, and they were sentenced, as indicated above. 28. Shri V.K. Bali, Advocate, learned counsel for the appellants, vehemently argued that the trial court has convicted all the three appellants, while relying upon (i) the alleged dying declaration (Ex.PB) made by the deceased to Shri J.P. Singh, SDM, Delhi (PW.4); (ii) the statement of PW.3 Seema, to whom the deceased had told about the occurrence; and (iii) the endorsement made by the Doctor of Lok Nayak Hospital, Delhi, on the bed head ticket of the deceased. Learned counsel argued that none of these evidence is reliable and has been proved in accordance with law. Therefore, the appellants cannot be convicted on the basis of these kinds of evidence. While arguing regarding the alleged dying declaration, learned counsel submits that the version given in the said dying declaration and in the endorsement of the Doctor on the bed head ticket of the deceased as well as the version given by Seema (PW.3), as narrated to her by the deceased, are entirely different and contradictory with each other. He further argued that before recording the alleged dying declaration of the deceased, Shri J.P. Singh (PW.4) did not obtain any opinion about the fitness of the patient to make the statement. He has not explained as to how he had come in the Crl. A. No. 424-DB of 2006 -11- Hospital to record the statement of the patient. It is not the case of the prosecution that he was called by the police for recording the statement of the patient. Learned counsel further pointed out that Shri J.P. Singh was not a man of good character. At the time of his deposition in the court as PW.4, he was in custody in a corruption case. Therefore, the dying declaration recorded in such illegal manner by a man of dubious character is not reliable at all. According to the learned counsel, father of the deceased, who was a resident of the village, has manipulated the recording of the aforesaid dying declaration in connivance with Shri J.P. Singh, SDM, Delhi (PW.4). Learned counsel further argued that the Doctor, who had made the endorsement on the bed head ticket of the patient, has not been examined, therefore, it has not been proved as to who has made the endorsement on the bed head ticket of the patient. In absence of the proof, the said document cannot be relied upon to convict the appellants for committing the offence of murder. Regarding the statement of PW.3 Seema, learned counsel argued that the same is not only highly unreliable being made by an interested person, but it is totally contrary to the alleged dying declaration. While referring to the statement of the landlord and the landlady of PW.3 Seema, learned counsel argued that actually, she had not met the deceased after the incident, as when she reached to the house of the deceased, the deceased had already been shifted to the Hospital. Learned counsel further argued that the demand of dowry has not been proved. The trial court has also come to the conclusion to this effect. Therefore, the prosecution has failed to Crl. A. No. 424-DB of 2006 -12- prove the alleged motive. Regarding A-2 and A-3, learned counsel argued that both these appellants are not real brother and `Bhabhi' of A-1. They are having distant relations with A-1. As per the evidence on record, the grand- fathers of A-1 and A-2 were the real brothers. Learned counsel further argued that A-2 and A-3 are residing in a different village since long and they have no motive at all to participate in the alleged crime. Learned counsel argued that both these appellants have been falsely implicated, because they had disclosed the factum of the previous marriage of the deceased, which was concealed by her father, to A-1. For that reason, A-2 and A-3 were falsely implicated in the instant case. Learned counsel further argued that the prosecution has miserably failed to prove the guilt against the appellants beyond a reasonable doubt, therefore, they are entitled to be acquitted. 29. On the other hand, learned counsel for the respondent-State argued that the prosecution has fully proved its case against all the accused and they have been rightly convicted and sentenced by the trial court under Section 302 read with Section 34 IPC. 30. We have considered the submissions made by learned counsel for the parties and have perused the record of the case. 31. From the evidence led by the prosecution i.e. PW.18 Dr. Bhim Singh, who conducted post mortem of the deceased Nargis and proved the post mortem report Ex.PS, it has been established that on 11.7.2003 at about 1.00 AM (night), the deceased had died due to burn injuries. From the Crl. A. No. 424-DB of 2006 -13- statement of PW.7 Dr. V.K. Gupta, it has also been established that on 8.7.2003 at 12.45 AM (night), A-1 got admitted his wife Nargis in Government Hospital, Sonepat, in burnt condition. This witness conducted the medico legal examination of Nargis. He found 90% deep burn injuries on her body. The burn injuries were fresh at that time. This fact further establishes that the alleged incident might have taken place on 7.7.2003 at 11 PM, as alleged by the prosecution. It is PW.7 Dr. V.K. Gupta, who for the first time sent medical ruqa to the police. On receiving the medical ruqa, ASI Balraj Singh (PW.16) reached the Hospital. He sought opinion of the Doctor about the fitness of the patient to make statement, but PW.7 Dr. V.K. Gupta, vide his opinion (Ex.PD/3) declared the patient unfit to make statement. Lateron, the patient was referred to Lok Nayak Hospital, Delhi, where she died on 11.7.2003, due to burn injuries. 32. According to the prosecution, on 7.7.2003 at 11 PM, in the matrimonial house of Nargis, A-2 caught hold of her hands, A-1 poured kerosene oil on her and A-3 set her on fire. The accused had done so, as they were demanding more money from the deceased on account of dowry. In support of this, the prosecution is relying upon three kinds of evidence, led by it. Firstly, the dying declaration (Ex.PB) of the deceased, on the basis of which the formal FIR (Ex.PB/2) was registered against all the accused; secondly the statement of PW.3 Seema, the real sister of the deceased, before whom the deceased had narrated the whole occurrence and the statement of PW.2 Randhir Singh, father of the deceased, to whom PW.3 Crl. A. No. 424-DB of 2006 -14- Seema told about the alleged occurrence; and thirdly the endorsement made by the Doctor on the bed head ticket of the deceased in Lok Nayak Hospital, Delhi. On careful perusal and analysis of these evidence, led by the prosecution, we are of the opinion that these are not the reliable and trust- worthy evidence, for the reasons recorded hereinafter. 33. It is well settled that conviction can be based on a dying declaration, if the court is satisfied that the dying declaration is true and voluntary. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction. Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration has to look upon the medical opinion. Where the deceased was unconscious or was not in a position to make the dying declaration, the evidence with regard to it is to be rejected. In the instant case, the alleged dying declaration (Ex.PB) was recorded by Shri J.P. Singh, SDM, Delhi (PW.4) on 8.7.1993 at 11.30 AM, in Lok Nayak Hospital, Delhi. It has not been proved by the prosecution as to who had called him to record the dying declaration of the deceased. There is no evidence to this effect. There is no written request made by the police or by the Doctor to the said witness to come present in the Hospital and record the dying declaration. In his statement, this witness has stated that he had recorded the statement (Ex.PB) of the deceased on his own. However, in his cross- examination, he has stated that the police had taken him from his office to Crl. A. No. 424-DB of 2006 -15- record the statement of the deceased, but he could not recollect the name of that police official. It is pertinent to mention here that this part of his statement has not been corroborated by two police officials, who have been examined by the prosecution, i.e. PW.6 SI Anil Sharma and PW.16 ASI Balkar Singh, the Investigating Officer of the case. It is further pertinent to mention here that when this witness (PW.4) appeared in the court, he was brought from Tihar Jail, Delhi, where he was lodged in connection with a bribery case. It has further come in evidence i.e. statement of PW.5 Shri Shamim Akhtar that on 8.7.2003, the day when the alleged dying declaration was recorded, he was the SDM