IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 607-DB of 2000 Dated of Decision:- August 11, 2009 Hardial Singh and another ....APPELLANTS VERSUS State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Mrs Baljit Mann, Advocate for the appellants. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 27.9.2000 of the learned Sessions Judge, Jalandhar, whereby he convicted Hardial Singh and Gurdial Singh sons of Amar Chand under Section 302 read with Section 34 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.5,000/- each, in default to further undergo R.I. for six months. The case of the prosecution is unfolded by the statement Ex.PK of Raj Rani given to Lakhbir Singh SI at Civil Hospital, Jalandhar. Raj Rani stated, that she was married 11 years back. She had three children; two sons and one daughter. Hardial Singh and Gurdial Singh sons of Amar Chand were the elder brothers of her husband. Both the 2 Criminal Appeal No. 607-DB of 2000 brothers kept quarrelling last night. On 23.10.1998 at about 7.00 a.m., she started preparing tea on the stove and both Hardial Singh and Gurdial Singh threw something on her and set her on fire. When she used to go to do labour work, they said that she was characterless. After setting her on fire, both Hardial Singh and Gurdial Singh ran away. They had confined her husband Resham Lal in a room and bolted the door. Her husband then broke the door. He came out and extinguished the fire with a quilt. Paramjit Kaur her elder sister-in-law and wife of Hardial Singh also helped in dousing the flames. Both Hardial Singh and Gurdial Singh wanted to kill her. This statement was given at the Civil Hospital, Jalandhar on 24.10.1998 at 3.40 p.m. Dr. Rakesh Kumar was also signatory to the statement. On the basis of this statement Ex.PK, FIR Ex.PK/2 was registered on 24.10.1998 at 4.45 p.m. in Police Station, Kartarpur. The special report reached the J.M.I.C. (Duty) on the same day i.e. on 24.10.1998 at 6.27 p.m. The prosecution to prove its case brought into the witness box, Constable Joga Singh, Constable Sukhbir Singh PW2, Dalip Singh Draftsman PW3, Dr. Gurinder Kaur Chawla PW4, Gian Chand PW5, Sh. Sangeet Pal Singh , J.M.I.C. Jalandhar PW6, Dr. Jaswant Singh Bhatia PW7, Constable Kishan Singh PW8, Inspector Lakhbir Singh PW9 and Dr. Rakesh Kumar PW10. Defence to prove the innocence of the appellants produced Gurdawar Singh DW1, Gurnam Singh DW2, Resham Lal DW3, Chanan Ram DW4 and Dr. Chanjiv Singh. 3 Criminal Appeal No. 607-DB of 2000 Learned counsel for the appellants has argued, that the occurrence had taken place on 23.10.1998 at 7.00 a.m. in the house of the deceased. FIR Ex.PK/2 came into existence on 24.10.1998 i.e. after a gap of 34 hours. Instead of going to the hospital, it has been stated that Raj Rani was taken to Vaid Gurnam Singh DW2 of Village Noorpur. This is all a concocted story. In fact 34 hours of delay was being utilized for consultations and confabulations to falsely implicate the appellants. Raj Rani died on 2.11.1998 i.e. after a gap of 10 days. There was no imminent threat to her life. She died due to septicemia. Septicemia became serious, as she was not given proper medical treatment for 34 hours, when she was admitted in the hospital. In fact she was kept at home. Resham Lal, husband of the deceased, has come into the witness box as DW3. He has stated that the appellants are innocent. Deceased has falsely implicated the appellants, as they used to dislike her going out and used to check her for her wrong activities. In dying declaration Ex.PE/2, Raj Rani has stated, that rice straw was thrown on her and she was set on fire. Statement Ex.PE/2 was given to Sh. Sangeet Pal Singh, J.M.I.C. But in her dying declaration Ex.PK before the Investigating Officer Lakhbir Singh SI, she has stated that something was thrown on her while she was preparing tea on a stove. Resham Lal, husband of the deceased, has come into the witness box as DW3 and has not supported the prosecution case. She had three grown up children. They have also not deposed in her favour. We are left with only two dying declarations Ex.PK and Ex.PE/2. There are a 4 Criminal Appeal No. 607-DB of 2000 number of contradictions in both these dying declarations and they are not worth any credence. Learned counsel for the State has argued, that delay of 34 hours has been adequately explained, as Resham Lal, husband of the deceased first took her to Vaid Gurnam Singh DW2 in Village Noorpur, as the Vaid could not treat her. He recommended that she should be taken to the Civil Hospital, Jalandhar. Deceased ‘s dying declaration Ex.PK was recorded by Lakhbir Singh SI PW9, on the basis of which FIR Ex.PK/2 came into existence. SI Lakhbir Singh PW9 not satisfied with this statement, moved the J.M.I.C., Jalandhar for recording of her statement, vide his application Ex.PJ. Sh. Sangeet Pal Singh, J.M.I.C. PW6 recorded the statement of deceased Raj Rani Ex.PE/2 on 24.10.1998 at 4.30 p.m. There are no contradictions in both the dying declarations i.e. Ex.PK and Ex.PE/2. Both dying declarations corroborate each other. When her husband took her to Vaid Gurnam Singh DW2 in Village Noorpur, little did he know that her burns were serious. Deceased could not have done anything, as she was in the hands of her husband. Resham Lal gave his statement under Section 161 Cr.P.C., but resiled from his statement and came into the witness box as DW3. He supported the case of the appellants for the reason that he did not want his brothers to go to the jail for the death of his wife. Raj Rani died on 2.11.1998 not because of septicemia. She died due to the burn injuries. 5 Criminal Appeal No. 607-DB of 2000 We have heard the learned counsel for the parties and perused the record with their assistance. Occurrence had taken place on 23.10.1998 at 7.00 a.m. Statement Ex.PK of deceased Raj Rani was recorded by SI Lakhbir Singh PW9 at 3.40 p.m. on 24.10.1998 in Civil Hospital, Jalandhar. On the basis of this statement, FIR Ex.PK/2 was recorded on 24.10.1998 at 4.45 p.m. The second dying declaration Ex.PE/2 of deceased Raj Rani was recorded by Sh. Sangeet Pal Singh, J.M.I.C., Jalandhar, on the same day i.e. on 24.10.1998 at 4.30 p.m. in Civil Hospital, Jalandhar. Raj Rani died on 2.11.1998 i.e. after a gap of 9 days. As per Dr. Jaswant Singh Bhatia PW7, Raj Rani deceased was admitted in Civil Hospital, Jalandhar with 80% burns and she expired on 2.11.1998 at 2.10 a.m. Dr. Gurinder Kaur Chawla PW4 performed the post- mortem on her dead-body and found the following injuries on her person: - “Singing of scalp and pubic hair was present. Superficial to deep burns were present over the whole body but sparing the following areas. Both upper limbs partly spared, soles of both feet and dorsum of right foot partly spared. Pus and slough was present over the burn injuries. The whole viscera on dissection was found congested”. In the opinion of Dr. Gurinder Kaur Chawla PW4, the cause of death was septicemia, shock due to the burn injuries, which were ante- mortem in nature and sufficient to cause death in the ordinary course of nature. 6 Criminal Appeal No. 607-DB of 2000 It has come in the statement of Gurnam Singh DW2, that Resham Lal along with his wife Raj Rani had come to his village Nurpur on 23.10.1998 at 9.30 a.m. He was working as a Hakim. Raj Rani had burn injuries below the hip. He enquired from Raj Rani as to what was the cause of the burn injuries. She told him, that a stove burst. He advised them to go to a hospital. Resham Lal, the husband of the deceased, had come into the witness box as DW3. He has stated, that deceased Raj Rani was his wife. His eldest daughter is 10 years old and son is 8 years old. Deceased did not have any quarrel with the appellants. Raj Rani caught fire at about 7.30 a.m. on 23.10.1998, when she was working on a stove. He along with his children were in the house. Thereafter he took her to Gurnam Singh Hakim DW3, who advised them to take her to Civil Hospital, Jalandhar. Parents of Raj Rani came to the hospital on 24.10.1998 at 2.00 p.m. Dying declaration Ex.PK is as under: - “ My marriage took place about 11 years back. I have got three children i.e. two sons and one daughter. Both elder brothers of my husband Hardial Singh and Gurdial Singh had been quarreling last night. Yesterday at about 7 a.m., I started preparing tea on stove and I do not know, what they both threw on me and set me on fire. If I go to do labour work, they say that I am characterless. After putting me on fire they both went away. Both the elder brothers of my husband had confined my husband in a room and bolted the same. My husband knows about it. Then my husband broken the bolt of the door, came out and extinguished my fire with a quilt. The burnt clothes were cut by my elder sister-in-law wife of Hardial Singh. They 7 Criminal Appeal No. 607-DB of 2000 both have set me on fire with an intent to kill me. I am the claimant against them. Legal action be taken. Sd/- Raj Rani Sd/- Doctor Rakesh Kumar Civil Hospital, Jalandhar 24.10.98 at 3.40 pm.” Dying declaration Ex.PE/2 is as under: - “ Statement of Raj Rani w/o Resham Lal aged 25/26 years. Name of my father is Ram Saran. I am married at village Karari. Name of my husband is Resham Lal. My husband does the work of lathe welding. My husband’s elder brother had taken liquor and had been quarrelling during night. In the morning after taking bath, when I started preparing tea, both elder brothers of my husband came behind me. Their names are Hardial and Gurdial. They set me on fire after throwing straw of rice upon me. Without any quarrel, the elder brothers of my husband had been abusing me. They call me as immoral, shameless and bitch. I do labour work etc. I have got two sons and one daughter. I may feel relaxed if I get any job. There was no dispute of dowry etc. My father had given sufficient dowry. We did not know that they will turn to be bad people. Brothers of my husband have sold away and misappropriated my jewellery after taking the same from my mother-in-law. Nothing is left now. Elder brothers of my husband wanted to kill me by saying me bitch. My husband had extinguished the fire by coming forward. None else came forward. I raised shrieks and old women gathered around. I was set on fire yesterday morning at 7 A.M. There was none else except elder brothers of my husband at the time, I was set on fire. Neither my mother in law nor sister of my husband was present at the time, I was set on fire. They had gone to their house. The 8 Criminal Appeal No. 607-DB of 2000 inhabitants of my village had asked me not to give statement against the elder brothers of husband and that I would be given prize. The elder brothers of my husband had frightened me for not making statement. I need not afraid of. I do not have fear of anybody else. I have got recorded this statement without any fear. The elder brothers of my husband who have committed the offence should learn a lesson. Names of my husband’s elder brothers are Hardial and Gurdial Singh. They both are the brothers of my husband and he has got no other brother. RO&AC Sd/- Sd/- Raj Rani JMIC (D) 24.10.1998 Patient remained fit & conscious during her statement. Sd/- Doctor In English. 24.10.1998 At 8.35 P.M.” Both the dying declarations corroborate each other. Raj Rani has categorically stated, that when she started preparing tea, both the elder brothers of her husband i.e. the appellants set her on fire after throwing straw of rice on her. Elder brothers of her husband i.e. Hardial Singh and Gurdial Singh appellants had been abusing her. They had been calling her characterless and a woman of immoral character, when she used to do labour work. There was no dispute of dowry. She has further stated, that her husband extinguished the fire. Before burning her, appellants locked her husband in a room. 9 Criminal Appeal No. 607-DB of 2000 Both dying declarations Ex.PK and Ex.PE/2 inspire confidence. Dying declaration Ex.PE/2 was recorded after a police application Ex.PE was moved before Sh. Sangeet Pal Singh, J.M.I.C., Jalandhar PW6. Vide opinion Ex.PE/1, the duty doctor declared Raj Rani to be fit to make a statement on 24.10.1998 at 4.15 p.m. Ex.PE/3 is the opinion given by Dr. Rakesh Kumar PW10. Dr. Rakesh Kumar PW10 opined that Raj Rani remained fit throughout when she was giving her statement. Similarly, statement Ex.PK, which was recorded by SI Lakhbir Singh PW9 after opinion Ex.PJ/1 was taken from the duty doctor of fitness to make a statement. Application Ex.PJ was moved by the Investigating Officer SI Lakhbir Singh PW9 before the statement was recorded. Deceased died after 10 days of she being burnt due to septicemia. FIR Ex.PK/2 was recorded after 34 hours. This delay has been adequately explained. Firstly deceased was taken to Gurnam Singh Hakim DW3 and thereafter to the Civil Hospital, Jalandhar. It has been opined by Dr. Gurinder Kaur Chawla PW4, that deceased Raj Rani died due to septicemia. It seems that proper medical care could not be given to the deceased. If it had been done so, she could have been saved. We find it a fit case, which falls within the parameters of Section 304 Part I IPC. Conviction and sentence of the appellants is modified from Section 302 IPC to Section 304 Part II IPC and both the appellants are sentenced to undergo 10 years R.I. Fine shall remain intact. With the above discussion and observations, appeal is dismissed. (MEHTAB S.GILL) 10 Criminal Appeal No. 607-DB of 2000 JUDGE (JITENDRA CHAUHAN) August 11, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO