IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 197-DB of 2006 DATE OF DECISION : 20.05.2011 Ajaypal alias Lala .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. N.S. Shekhawat, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Ajaypal alias Lala, who was about 18/19 years of age at the time of the alleged occurrence, was tried by the court of Additional Sessions Judge, Bhiwani, for committing rape and murder of Sunita, wife of his elder brother Vijay Pal, by putting her on fire. The trial court vide its judgment and order dated 21.1.2006 has convicted the appellant under Sections 376 and 302 read with Section 34 IPC, and sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 10,000/-, in default of payment of fine, to further undergo rigorous imprisonment for a period of three years. It has been further ordered that the appellant shall not be allowed to come out from the jail before undergoing at least 20 years actual term of imprisonment. Crl. A. No. 197-DB of 2006 -2- Case of the prosecution 2. The case of the prosecution is based upon the dying declaration of Sunita. As per the prosecution version, on 11.8.2004 in the morning, Sunita was alone in her house, when she was raped by the appellant. When she told him that she will tell her husband, then her sister-in-law (Nanad) Pushpa (who was minor and faced separate trial before the Juvenile Justice Board) caught hold of her and closed the room. Thereupon, the appellant poured kerosene oil upon Sunita and set her on fire with match box. On her crying, neighbourers came on the spot. She was immediately shifted to General Hospital, Bhiwani, which was at a distance of about 14/15 kilometers from the village, where the occurrence had taken place. 3. On the same day at 2.00 PM, PW.2 Dr. Rajender Rai, Medical Officer, General Hospital, Bhiwani, medico legally examined Sunita. He found that the victim was having superficial to deep burns approximately 99% covering almost whole body. Singeing of hair was present and the kerosene like smell was also present. The clothes were half burnt. This witness prepared the MLR of the victim as Ex.P4 and thereafter, at 3.00 PM, he sent ruqa (Ex.P5) to the Police Station. By the time, the police party, headed by SI Ram Kumar (PW.12) reached General Hospital, Bhiwani, the victim had already been referred to PGIMS, Rohtak. Then the police party went to PGIMS, Rohtak and SI Ram Kumar moved an application (Ex.P19) seeking opinion of the Doctor regarding the fitness of the victim to make the statement. On that application, Dr. Dale Singh (PW.10) at 6.25 PM gave his Crl. A. No. 197-DB of 2006 -3- opinion (Ex.P22) that the patient was fit to make statement. Thereafter, SI Ram Kumar moved an application (Ex.P13) before Chief Judicial Magistrate, Rohtak, for recording the statement of victim Sunita. Thereupon, Shri Kuldeep Singh, the then Judicial Magistrate IInd Class, Rohtak (PW.8) reached PGIMS Rohtak and moved an application at 7.20 PM, seeking opinion of the Doctor regarding the fitness of the patient to make statement. On that application, Dr. Dale Singh again gave opinion (Ex.P15) to the effect that the patient was fit to make the statement. Thereafter, at 7.35 PM, the learned Magistrate recorded the dying declaration (Ex.P16) of the victim. After completing the said dying declaration, Dr. Dale Singh made endorsement (Ex.P17) on the same to the effect that the patient remained fit during recording of statement. The learned Magistrate also gave his certificate (Ex.P18) on the back of the dying declaration that the victim gave her statement voluntarily. On the basis of this dying declaration, the formal FIR (Ex.P7) under Sections 376/307/34 IPC was registered on 12.8.2004 at 12.10 AM (night) and the special report was received by the Ilaqa Magistrate at 1.05 AM (night). 4. On 12.8.2004, SI Ram Kumar visited the place of occurrence and prepared the rough site plan (Ex.P24). One plastic can of kerosene oil and one half burnt gunny bag were lifted from the place of occurrence and were taken into possession vide recovery memo Ex.P23, in the presence of Ram Chander (PW.11), father of deceased Sunita, and Jai Bhagwan. 5. As per the prosecution version, in the early morning of Crl. A. No. 197-DB of 2006 -4- 13.8.2004 at about 6.05 AM, Sunita died in the Hospital. On receiving information regarding her death, SI Ram Kumar reached PGIMS, Rohtak, prepared the inquest report (Ex.P3) and sent the dead body for post mortem examination and the offence under Section 302 IPC was added. 6. On 13.8.2004, Dr. Hardev Singh (PW.1) along with Dr. Kulpratibha conducted post mortem examination on the dead body of Sunita. According to them, the body was showing superficial to deep burns all over the body about 95%, except part of genital area anteriorly and part of anterior aspect of upper part of the right side chest. Erithema was seen. Marbling of veins was present. The stomach was empty. Two vaginal swabs were taken in a vial. According to both the doctors, the cause of death was due to ante-mortem burns and its complications. 7. On 15.8.2004, the appellant was arrested and was got medico legally examined. The doctor opined that there was nothing to suggest that the appellant was unable to do sexual intercourse. Thereafter, the appellant moved an application raising the plea that on the date of commission of the alleged offence, his age was less than 18 years, therefore, he being juvenile, his case be sent to the Juvenile Justice Board. The learned trial court, vide its order dated 30.5.2005 dismissed the application of the appellant, while holding that his date of birth was 12.7.1986, and therefore, on the date of commission of the alleged offence, his age was eighteen years and one month. 8. After completion of investigation, the police filed challan Crl. A. No. 197-DB of 2006 -5- against the appellant and charges under Sections 376 and 302 read with Section 34 IPC were framed, to which he did not plead guilty and claimed trial. Prosecution evidence 9. In support of its case, the prosecution examined twelve witnesses. 10. PW.1 Dr. Hardev Singh proved the Post Mortem Report (Ex.P1) of the deceased. 11. PW.2 Dr. Rajender Rai proved the MLR (Ex.P4) of deceased Sunita as well as the ruqa (Ex.P5) sent by him, informing the police about the admission of Sunita in General Hospital, Bhiwani. 12. PW.3 SI Phool Kumar is the formal witness, who recorded the FIR (Ex.P7) and sent the special reports to the higher officers. 13. PW.4 Constable Ramesh Chander, PW.5 HC Ramesh Chand, PW.6 Constable Shiv Kumar and PW.7 Satbir Singh, Draftsman, are also the formal witnesses. 14. PW.8 Shri Kuldeep Singh, the then Judicial Magistrate IInd Class, Rohtak, proved the dying declaration (Ex.P16) of deceased Sunita, which was recorded by him. 15. PW.9 HC Attar Singh is again a formal witness. 16. PW.10 Dr. Dale Singh proved the opinions given by him on the police request as well as on the request made by the Judicial Magistrate, whereby he declared the victim fit to make statement before and during the Crl. A. No. 197-DB of 2006 -6- recording of her dying declaration. 17. PW.11 Ram Chander, father of deceased Sunita, fully supported the case of the prosecution. He is also witness to the recovery of one plastic can of kerosene oil and one half burnt gunny bag from the place of occurrence. 18. PW.12 SI Ram Kumar is the Investigating Officer in the case. He has also fully supported the prosecution case. Statement of the appellant under Section 313 Cr.P.C. 19. In his statement under Section 313 Cr.P.C., the appellant denied the incriminating evidence appearing against him. He pleaded innocence and false implication in the case. According to him, the deceased was a bad character lady and her husband had asked him to look after her, so that she may not run away from the house. She had cooked food on a stove and incidentally, she received burns. In defence, he examined two witnesses. Defence evidence 20. DW.1 Rajinder Tanwar, Vice President of All India Kumbar Sabha, stated that about 3 ½ years back, father of deceased Sunita had come to him for help, as his daughter Sunita was enticed away by a characterless lady, living in his neighbourhood, but lateron, she had come back at her own. 21. DW.2 Krishan stated that in March, 2004, Sunita had come to her mother's sister's house, when she was mentally upset. She did not want Crl. A. No. 197-DB of 2006 -7- to live either in her matrimonial home or in her parents home. The findings of the trial court 22. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the dying declaration of the deceased, as well as the medical evidence, and disbelieving the defence version of the appellant, the trial court convicted and sentenced the appellant, as mentioned in the first paragraph of this judgment. Arguments of learned counsel for the appellant 23. Learned counsel for the appellant argued that in the present case, the case of the prosecution is solely based upon the alleged dying declaration (Ex.P16), made by the deceased. But the said dying declaration is wholly unreliable and untrustworthy, because it is not the voluntary statement of the deceased, as it was result of tutoring by her parents, who had arrived in the Hospital prior to the recording of her dying declaration by the Judicial Magistrate. Learned counsel further argued that the version given in the dying declaration regarding commission of rape on the victim has not been corroborated by the medical evidence, therefore, the version given in the dying declaration in this regard should not be presumed to be correct and trustworthy. Learned counsel further argued that the version of committing rape by the appellant, who is younger brother of the husband of the victim, also does not stand to reason and prudence, particularly in view of the fact that even in the FSL report (Ex.P21), no semen was found on both the vaginal swabs of the victim taken during her post mortem Crl. A. No. 197-DB of 2006 -8- examination. He further argued that the doctor, who medico legally examined the appellant, was not examined in order to prove that the appellant was capable to do sexual intercourse. Further, as per prosecution version, the appellant took the victim to the hospital. Therefore, it does not stand to reason why he had taken the victim to Hospital, if he had committed rape and set her on fire. Learned counsel further contends that the learned trial court has not properly appreciated the defence evidence, led by the appellant, which establish that the victim was a woman of easy virtue and the possibility of her falsely implicating the appellant who was preventing her to do so cannot be ruled out. According to the learned counsel, in view of these weaknesses in the prosecution case, conviction of the appellant solely on the basis of the dying declaration without any further corroboration is not safe. 24. In the last, learned counsel argued that even if the appellant is found to have committed the alleged crime, the sentence of rigorous imprisonment for life for 20 years awarded to him is on higher side. According to the learned counsel, keeping in view the age of the appellant as well as the facts and circumstances of the case, a lenient view be taken and sentence of appellant be modified as simple imprisonment for life. Arguments of learned State counsel 25. On the other hand, learned counsel for the respondent-State argued that the dying declaration in the present case was recorded by the Judicial Magistrate, after duly obtaining the opinion of the doctor regarding Crl. A. No. 197-DB of 2006 -9- the fitness of the victim, and throughout recording of her statement, the doctor remained present, who certified that during the said period, the victim remained fully conscious and fit to make statement. Learned counsel further pointed out that in this case, when the dying declaration was recorded, no one either from the family of the appellant or the victim was present, therefore, the question of tutoring the victim before making dying declaration does not arise. Learned counsel further argued that no suggestion was put to Dr. Dale Singh (PW.10), who remained present throughout the recording of dying declaration that parents of the victim were present and they had influenced or tutored the victim, before making the statement. Learned counsel further argued that in the present case, the most important factor is that the appellant has not suggested any motive on the part of the victim for making false allegation against him. Therefore, according to the learned counsel, the instant case is a fit case, where the trial court was fully justified in convicting the appellant on the basis of the dying declaration, which was found to be wholly reliable and trustworthy. Learned counsel also opposed the prayer of the appellant for taking any lenient view in the matter of sentence. According to him, in the instant case, the appellant has committed a very heinous crime i.e. after committing rape upon the wife of his elder brother he set her on fire. Learned counsel submits that the trial court has already taken a lenient view, while fixing the life sentence as 20 years. Therefore, no further leniency is required in this case. Crl. A. No. 197-DB of 2006 -10- Discussion 26. The sole question for consideration in this case is : Whether in the facts and circumstances of the case, the trial court was fully justified in convicting the appellant for the offence of rape and murder, while relying upon the dying declaration (Ex.P16) made by the deceased, without any further corroboration ? 27. In this case, unfortunately the rape and murder was committed in the matrimonial home of the victim by none else than her younger brother-in-law, when she was alone in the house. At the time of the occurrence, which took place in the morning of 11.8.2004, the victim, the appellant and his co-accused Pushpa (who was minor and faced separate trial before the Juvenile Justice Board) were present in the house, After committing rape on the victim, when she was put on fire by the appellant, she started crying, upon which many neighbourers came on the spot. She was immediately taken to General Hospital, Bhiwani. It is true that as per the Hospital record, the victim was taken to the Hospital by the appellant, but merely on that basis, it cannot be inferred that he was not the culprit. He might have accompanied the victim to the Hospital, in order to project himself as innocent. PW.2 Dr. Rajender Rai medico legally examined the victim on the same day at 2.00 PM. He found 99% burn injuries on the body of the victim and also felt kerosene like smell on the half burnt clothes of the victim. After preparing the MLR (Ex.P4) of the victim, he sent ruqa (Ex.P5) to the police. By the time, the police party reached the Hospital, the Crl. A. No. 197-DB of 2006 -11- victim had been referred to PGIMS, Rohtak, where SI Ram Kumar (PW.12) sought opinion of the Doctor regarding fitness of the victim to make the statement. On that application, Dr. Dale Singh (PW.10) gave opinion at 6.25 PM that the patient was fit to make statement. Thereafter, the Judicial Magistrate, Rohtak, was called to record the statement of the victim. Shri Kuldeep Singh, Judicial Magistrate (PW.8), before recording the statement of the victim, again obtained opinion of the doctor regarding fitness of the victim to make statement, who opined that the patient was fit to make statement. Thereafter, at 7.35 PM, the dying declaration of the victim was recorded by the Judicial Magistrate, in the presence of Dr. Dale Singh. He has categorically stated that throughout the period of recording of the statement of the victim, she remained conscious and fit to make statement. The Magistrate (PW.8) has proved the said dying declaration as a voluntary statement of the victim without any pressure or tutoring. PW.8 Judicial Magistrate and PW.10 Dr. Dale Singh have categorically stated that when the statement of the victim was recorded, none of her family members, either from the side of her husband or her parents, was present. No suggestion was put to any of these witnesses that parents of the victim were present or they had tutored the victim before making statement by her. On the basis of the admission by PW.12 SI Ram Kumar in his cross- examination to the effect that Ram Chander and Rajesh, father and brother of the victim met him on 11.8.2004 at 7.30 PM at the gate of PGIMS, Rohtak, it was argued by learned counsel for the appellant that before Crl. A. No. 197-DB of 2006 -12- recording the statement of the victim, which was recorded at 7.35 PM, her father and brother reached the Hospital, therefore, the possibility of her tutoring by them cannot be ruled out. This contention of learned counsel for the appellant cannot be accepted. There is neither any suggestion put either to PW.8 Shri Kuldeep Singh, Judicial Magistrate or to PW.10 Dr. Dale Singh, who remained present throughout the recording of statement of the victim, that father and brother of the victim were present at the time of recording her statement, nor there is any evidence that before making the statement, the victim had met her father and brother. Therefore, in the facts and circumstances of the case, it cannot be said at all that the dying declaration of the victim was not voluntary and it was result of tutoring by her father and brother or that when the said statement was made, the victim was not in a fit state of mind to make any statement. 28. Now the further question arising for consideration is : Whether the version given by the victim in her dying declaration is credible and reliable or is there any room for entertaining any doubt about the truthfulness of her version ? 29. In her dying declaration (Ex.P16) before the Judicial Magistrate, the victim categorically stated that in the morning of 11.8.2004, her brother-in-law (Devar) Lala had committed rape upon her and when she told him that she will tell his brother, then her Nanad Pushpa caught hold of her and closed the room, upon which her brother-in-law poured kerosene oil upon her and set her on fire with a match box. On her crying, the Crl. A. No. 197-DB of 2006 -13- neighbourers came on the spot. 30. Learned counsel for the appellant argued that the aforesaid version given by the victim is neither truthful nor reliable, because the story of rape has not been corroborated by the medical evidence. In this regard, learned counsel pointed out cutting (Ex.D2) on the back of the MLR (Ex.P4) of the victim, prepared by PW.2 Dr. Rajender Rai, who medico legally examined the victim on the day of occurrence at General Hospital, Bhiwani. We do not find any substance in this argument, because PW.2 Dr. Rajender Rai, in his cross-examination, has clarified this cutting. He stated that this cutting bears his signature with date and time. He further stated that he wanted to obtain the signatures of some other doctor to constitute a board, but when the doctors refused, he made this cutting. Even otherwise, this cutting is not significant, because the dying declaration, which has been made the basis of the prosecution case, was made by the victim subsequently, recorded by the Judicial Magistrate in the presence of the doctor, after duly obtaining his opinion regarding the fitness of the victim to make the statement. 31. During the course of arguments, learned counsel put much emphasis on the report of the Forensic Science Laboratory (Ex.P21), according to which no semen was found on both the vaginal swabs of the victim taken during her post mortem examination. In our opinion, in the facts and circumstances of the case, much importance cannot be given to this report, because vaginal swabs of the victim were taken at the time of Crl. A. No. 197-DB of 2006 -14- her post mortem examination, which was conducted on 13.8.2004, i.e. two days after the occurrence, particularly in a case, where 95% body of the deceased was burnt, and during the process of treatment provided to the victim, her body might have been cleaned and the medicines would also have been applied on every part of her body, therefore, the possibility of washing out of the semen cannot be ruled out. It has come in evidence that except part of genital area anteriorly and part of anterior aspect of upper part of right side chest, the entire body of the victim was having superficial to deep burns. The second argument raised in this regard is the alleged loose character of the victim. In our opinion, it is unfortunate that after the death of the victim, such allegation has been levelled against her by the appellant to take a defence. The statements of two witnesses, produced by the appellant, are wholly unreliable and untrustworthy. There was no occasion for the father of the victim to go to DW.1 Rajender Tanwar, when he was not earlier known to him. If the statement of the appellant under Section 313 Cr.P.C., is carefully perused, he himself has suggested that he might have committed the rape on the victim. He stated that because the victim was a bad character lady, therefore, her husband had asked him to look after her, so that she may not run away from the house. This plea itself suggests that on the said pretext, the appellant had committed rape upon the victim and when she protested, she was done to death. The appellant even has not suggested any motive on part of the victim for making false allegation against him. On carefully scrutinizing the dying declaration of the victim, Crl. A. No. 197-DB of 2006 -15- recorded by the Judicial Magistrate in the presence of the doctor, we do not find any inherent improbability in the version, given by her. Therefore, in our opinion, the dying declaration (Ex.P16) made by the victim is wholly credible, reliable and trustworthy. 32. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused, but if a duly recorded dying declaration is found to be true and free from embellishment, then it itself is sufficient for recording conviction of the accused for the alleged offence. It was held in Kushal Rao v. State of Bombay, AIR 1958 SC 22 that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. It cannot be laid down as a general proposition that a dying declaration is a weak kind of evidence than other pieces of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances. It was further held that if a dying declaration was recorded by a competent Magistrate in the proper manner, then the same stands on a much higher footing than a dying declaration which depends upon oral testimony. It was further held that once the court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and