Crl. Appeal No. 49-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 49-DB of 2000 Date of Decision : February 26, 2009 Santosh Kumari .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. R. Yadav, Advocate for the appellant. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : Santosh Kumari wife of Kalu Ram @ Kala has preferred this appeal assailing judgment and order dated 10.12.1999 of learned Additional Sessions Judge, Barnala, whereby the appellant stands convicted under Section 302 of the Indian Penal Code (in short – the IPC) and sentenced to undergo life imprisonment. Prosecution case is as under :- On 20.10.1997 at 01:40 P.M., Ritu (since deceased) was admitted in Civil Hospital, Barnala with 95% burns, brought by her husband Bittu @ Rakesh Kumar. Dr. Suresh Kumar (PW-1) medico-legally Crl. Appeal No. 49-DB of 2000 2 examined Ritu and found superficial to deep burns present all over her body except on upper and lower surface of both feet. There was peeling off of the skin at places coupled with singeing of hair of scalp and axilla. The burns were about 95%. Blackening of skin at places was present. Dr. Suresh Kumar sent intimation Ex.P-B to the police. Thereupon, SI Chiranji Lal of Police Station City Barnala, along with other police officials, went to the hospital and thought it proper that statement of Ritu should be recorded in the presence of Magistrate. Accordingly, SI Chiranji Lal went to Illaqa Magistrate, Barnala and made application Ex.P-H to the Magistrate for recording statement of Ritu. Accordingly, Shri G. S. Saran, Sub Divisional Judicial Magistrate, Barnala went to the hospital. SI Chiranji Lal made application Ex.P-C, on which Dr. Narsi Ram gave opinion Ex.P-C/1 at 03:45 P.M. that Ritu was fit to make statement. Thereupon, Mr. G. S. Saran recorded statement Ex.P-J of Ritu and gave his certificate Ex.P-J/1 below it at 03:50 P.M. and also made orders/endorsements Ex.P-H/1 and Ex.P-H/2 on application Ex.P-H that statement of Ritu had been recorded. Thereafter, SI Chiranji Lal also recorded statement Ex.P-M of Ritu, which along endorsement Ex.P-M/1 thereon made by SI Chiranji Lal concluded at 04:25 P.M. Ritu stated in statements Ex.P-J as well as Ex.P-M that she was married with Rakesh Kumar on 25th July last year i.e. 25.07.1996. After Karvachauth ceremony of 1996, her jethani (wife of elder brother of her husband) Santosh-accused had beaten her. Her (Ritu's) husband did not ask anything from her. On 20.10.1997 at about 01:30 P.M., Santosh Kumari poured kerosene oil on her (Ritu) and set her afire. There was none else in the house at that time. No other family member used to maltreat her. She also had a son aged five months. On the basis of this statement, FIR Ex.P- M/3 was registered under Section 307 IPC. SI Chiranji Lal went to the spot and prepared rough site plan Ex.P-N. He also seized a plastic-can with some kerosene oil in it and a Crl. Appeal No. 49-DB of 2000 3 match-box from the spot vide memo Ex.P-O. Ritu succumbed to her burns on 29.10.1997 at 02:15 A.M. Intimation Ex.P-D was sent by Dr. Narsi Ram to the police. Offence was altered to that under Section 302 IPC and special report Ex.P-P was sent to Illaqa Magistrate. Inspector Harcharan Singh went to Civil Hospital, Barnala and prepared inquest report Ex.P-F and sent the dead body for post- mortem examination along with request Ex.P-G. The accused was arrested on 08.11.1997. On completion of investigation, the accused was sent for trial. Charge under Section 302 IPC was framed against the accused, who pleaded not guilty and claimed trial. To prove its case, the prosecution examined nine witnesses. Dr. Suresh Kumar (PW-1) stated that he medico-legally examined Ritu, who had about 95% burns and sent intimation Ex.P-B to the police. Dr. Narsi Ram (PW-2) stated that he gave opinion Ex.P-C/1 on police application Ex.P-C that Ritu was fit to make statement. At that time, Mr. G. S. Saran, Sub Divisional Judicial Magistrate, Barnala was also in the hospital to record statement of Ritu. Ritu died in the hospital on 29.10.1997 at 02:15 A.M. and this witness sent intimation Ex.P-D to the police. Dr. Surinder Kumar Garg (PW-3) conducted post-mortem examination on the deceased and stated that there were superficial to deep burns present all over the body except upper and lower surface of both feet. Skin was peeled off at places. Scalp and axillary hair were singed. Cause of death was opined to be shock due to burn injuries, which were ante-mortem and sufficient to cause death in ordinary course of nature. Mr. G. S. Saran, Chief Judicial Magistrate, Sangrur (PW-4) stated that on 20.10.1997, while he was posted as Sub Divisional Judicial Magistrate, Barnala, police made application Ex.P-H forwarded by Assistant Public Prosecutor for recording statement of Ritu. Mr. Saran then went to the hospital and Investigating Officer obtained Crl. Appeal No. 49-DB of 2000 4 opinion Ex.P-C/1 of the doctor that Ritu was fit to make statement. Mr. Saran then recorded statement Ex.P-J of Ritu. It was read over and explained to her. She thumb-marked it in token of its correctness. Mr. Saran then made endorsement Ex.P-J/1 on the statement. He also made order Ex.P-H/1 on the application Ex.P-H and also made endorsement Ex.P- H/2. Rajesh Kumar Jindal, Draftsman (PW-5) stated that he prepared scaled site plan. HC Gulshan Kumar (PW-6) tendered his affidavit Ex.P-L in the evidence being formal witness. SI Chiranji Lal (PW-7) stated about investigation of the case including making of application Ex.P-H to Illaqa Magistrate for recording statement of Ritu and also obtaining opinion Ex.P- C/1 of the doctor by moving application Ex.P-C that Ritu was fit to make statement. He also stated that he himself recorded statement Ex.P-M of Ritu and sent it to Police Station with his endorsement Ex.P-M/2. Kuldeep Singh (PW-8) is father of the deceased. He stated that Ritu was married to Rakesh Kumar in July 1995. On 20.10.1997, he came to know that his daughter Ritu Bala was set on fire by her jethani. Ritu died on 29.10.1997. Inspector Harcharan Singh (PW-9) stated about investigation of the case. The accused in her statement under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.) denied all the incriminating circumstances appearing against her in the prosecution evidence and claimed to be innocent. She alleged that Ritu was previously married to one Anil Kumar of District Muzaffarnagar (U.P.) on 21.02.1994 and being of short temper, she picked up quarrels with Anil Kumar and his family on petty matters and tried to commit suicide there. Accordingly, in a Panchayat, vide writing dated 11.05.1996 (Ex.D-A), marriage between Ritu and Anil Kumar was dissolved. Ritu suspected that her husband Bittu was having illicit relations with the accused and for that reason, she (Ritu) poured kerosene oil and set herself afire. At that time, the accused was not in the house. Hardeep Kaur and Rinku – children of the accused were Crl. Appeal No. 49-DB of 2000 5 present in the house and they informed Ritu's husband as well as appellant's husband. Ritu set herself afire on account of suspicion of illicit relations of her husband with the accused. In defence, the accused examined two witnesses. Anil Kumar (DW-1) is first husband of the deceased. He stated that he was married with Ritu in 1994, but she used to quarrel with and abuse him and his family members and also used to threaten to commit suicide, but she never tried to pour kerosene oil on herself. In 1996, their marriage was dissolved by divorce in Panchayat vide compromise Ex.D-A. Rinku Rani (DW-2) is daughter of the accused and has broadly stated according to the defence version as pleaded by the accused in her statement under Section 313 Cr.P.C. We have heard learned counsel for the parties and perused the case file with their assistance. Prosecution has led sufficient credible evidence to prove the guilt of the appellant beyond reasonable doubt. The occurrence took place at about 01:30 P.M. on 20.10.1997. Ritu was removed to hospital by her husband at about 01:40 P.M. After medico-legal examination, Dr. Suresh Kumar sent intimation Ex.P-B to the police. Thereupon, SI Chiranji Lal visited the hospital and found it proper to record the statement of Ritu in presence of Magistrate. Accordingly, SI Chiranji Lal went to Illaqa Magistrate and made application Ex.P-H for recording statement of Ritu. Thereupon, Mr. G. S. Saran, Sub Divisional Judicial Magistrate, Barnala went to the hospital, where SI Chiranji Lal, by moving application Ex.P-C, obtained opinion Ex.P-C/1 from Dr. Narsi Ram at 03:45 P.M. that Ritu was fit to make statement. Thereafter, Mr. G. S. Saran recorded statement Ex.P- J of Ritu, which along with Certificate Ex.P-J/1 concluded at 03:50 P.M. Thereafter, SI Chiranji Lal also recorded statement Ex.P-M of Ritu, which along with endorsement Ex.P-M/2 of SI Chiranji Lal, concluded at 04:25 Crl. Appeal No. 49-DB of 2000 6 P.M. FIR on its basis was registered at 04:35 P.M. and the FIR concluded at 05:25 P.M. Special report reached the Magistrate at 09:30 P.M. In both the statements Ex.P-J and Ex.P-M, Ritu categorically stated that the accused, who is her jethani, had set her afire after pouring kerosene oil on her at about 01:30 P.M. on 20.10.1997. Both these statements are dying declarations made by the deceased. These dying declarations inspire confidence because declaration/statement Ex.P-J was recorded by Judicial Magistrate. The same was recorded after the doctor opined that Ritu was fit to make statement. The Judicial Magistrate also gave his own certificate Ex.P-J/1 below statement Ex.P-J that the declarant was fit to make statement. The FIR was lodged very promptly on the basis of statement Ex.P-M made by the deceased to SI Chiranji Lal. There is no reason to discard these two dying declarations, one of which was recorded by Judicial Magistrate and the other by police official. The Judicial Magistrate had no reason to record false statement of the deceased. Even SI Chiranji Lal had no motive to record false dying declaration of the deceased. In fact, SI Chiranji Lal took all the necessary precautions to ensure that the dying declaration made by the deceased is genuine and free from doubt. Doctor's opinion was obtained that the deceased was fit to make statement. The statement was got recorded by calling the Judicial Magistrate to the hospital and the statement was recorded by the Judicial Magistrate and thereafter, another statement was recorded by the police official himself. Both the statements are substantially the same. Appellant is the sole accused named by the deceased. Appellant is jethani of the deceased. There is no reason why the deceased would falsely implicate the appellant alone without any rhyme or reason. The deceased specifically exonerated all other in-laws including her own husband and inculpated the appellant only. Even the husband was given a clean-chit by the deceased. The appellant has alleged in her statement under Section 313 Crl. Appeal No. 49-DB of 2000 7 Cr.P.C. that she has been implicated because the deceased suspected that her husband had illicit relationship with her (appellant) and in fact, the deceased had committed suicide on account of that suspicion. However, this plea cannot be accepted because if it had been so, the appellant would have first named her own husband and thereafter, would have named the appellant. In that event, the main grievance of the deceased would have been against her own husband, who did not prove faithful to her. However, the deceased specifically exonerated her husband as well as other in-laws and named the appellant only to have set her afire. In these circumstances, the defence version stated by the appellant in her statement under Section 313 Cr.P.C. does not inspire confidence at all. The statement of appellant's daughter Rinku Rani (DW-2) in support of the defence version also cannot be accepted because she being daughter of the appellant would naturally support the version of the appellant. Learned counsel for the appellant vehemently contended that opinion Ex.P-C/1 was given by doctor at 03:45 P.M. and statement Ex.P-J recorded by the Judicial Magistrate with his certificate Ex.P-J/1 below it concluded at 03:50 P.M. i.e. within five minutes and thus, everything has been stage-managed. The contention has no merit. Statement Ex.P-J is a brief statement and it cannot be said that the same could not have been recorded in five minutes. Moreover, there can be difference of a couple of minutes in the watches of the doctor and the Judicial Magistrate. Statement Ex.P-J recorded by the Judicial Magistrate cannot be doubted or discarded merely because there was gap of five minutes only in giving of opinion by the doctor and in recording of the statement. In the same context, learned counsel for the appellant contended that SI Chiranji Lal (PW-7) has stated that after obtaining opinion Ex.P-C/1 that Ritu was fit to make statement, he (Chiranji Lal) recorded statement Ex.P-M of Ritu. It was pointed out by appellant's counsel that SI Chiranji Lal did not state that he had called the Crl. Appeal No. 49-DB of 2000 8 Judicial Magistrate to record statement of Ritu before himself recording her statement. This contention is also unacceptable because in subsequent part of his examination-in-chief, SI Chiranji Lal has stated that he had also made application Ex.P-H to Illaqa Magistrate for recording statement of Ritu. There is also endorsement Ex.P-M/2 made by SI Chiranji Lal on statement Ex.P-M of Ritu recorded by him. This endorsement also forms part of the prompt FIR. It has been mentioned in endorsement Ex.P-M/2 that SI Chiranji Lal after visiting the hospital found that statement of Ritu should be recorded in the presence of a Judicial Magistrate and therefore, he approached the Judicial Magistrate with application Ex.P-H and accordingly, the Judicial Magistrate came to hospital and after doctor gave opinion that Ritu was fit to make statement, the Judicial Magistrate recorded her statement (Ex.P-J) and thereafter, SI Chiranji Lal himself also recorded statement of Ritu (Ex.P-M). It is thus evident from the sequence of events mentioned in endorsement Ex.P-M/2, which is part of the prompt FIR, that SI Chiranji Lal before himself recording statement Ex.P-M of Ritu, had got her statement (Ex.P-J) recorded by Judicial Magistrate. There is, therefore, no infirmity in the prosecution case on this aspect. Learned counsel for the appellant contended that no time of recording statement Ex.P-M has been mentioned thereon. The contention is misconceived because endorsement Ex.P-M/2 was made below statement Ex.P-M and the said endorsement bears the time of its conclusion as 04:25 P.M., and therefore, it was not necessary to mention the time separately below statement Ex.P-M as well. Learned counsel for the appellant also argued that statement Ex.P-J does not show that it was recorded on oath. However, this circumstance would not belittle the probative value of the statement. It was also contended that said statement is not in question-and-answer form. However, merely on this basis, the said statement or dying declaration Crl. Appeal No. 49-DB of 2000 9 cannot be discarded. It was also argued that no questions were put by the Judicial Magistrate to confirm that Ritu was fit to make statement. The argument is devoid of force because there is specific certificate Ex.P-J/1 by the Judicial Magistrate below statement Ex.P-J certifying that the declarant was fit to make statement. Learned counsel for the appellant also contended that in opinion Ex.P-C/1, the doctor has not mentioned about presence of Judicial Magistrate and similarly, the Judicial Magistrate has also not mentioned in the statement (Ex.P-J) that opinion of doctor was obtained in his presence. The argument cannot be accepted because it is mentioned in order Ex.P-H/1 by the Judicial Magistrate on police request Ex.P-H that on the aforesaid application Ex.P-H, the Judicial Magistrate went to Civil Hospital, Barnala and obtained opinion of the doctor whether injured was fit to make statement and after the doctor gave opinion that injured was fit to make statement, her statement was recorded. It is thus manifest from order Ex.P- H/1 of the Judicial Magistrate that opinion of doctor that Ritu was fit to make statement was obtained in his presence. Learned counsel for the appellant contended that the deceased did not name her husband because she wanted the husband to take care of their child, who was aged about five months only at that time. The contention is not substantiated by any material on record. Even otherwise, if the deceased suspected that her husband was having illicit relationship with the appellant and if the deceased committed suicide on that account and falsely implicated the appellant, then the deceased would have named her husband as well. Learned counsel for the appellant also contended that the deceased was a young lady in her early 20s, whereas the appellant was in her early 40s at the time of occurrence and therefore, the appellant could not have set the deceased on fire after pouring kerosene on her. The argument is Crl. Appeal No. 49-DB of 2000 10 completely hypothetical and based on conjectures and surmises and is not substantiated by any material on record. Learned counsel for the appellant next argued that Dr. Suresh Kumar (PW-1) has stated that blood pressure and pulse of Ritu were not recordable at the time of her medico-legal examination and consequently it cannot be said that she was fit to make statement. The argument has no substance. Even Dr. Suresh Kumar (PW-1) has stated that the patient was conscious. Dr. Narsi Ram (PW-2) has specifically stated that Ritu was fit to make statement. Mr. G. S. Saran, Judicial Magistrate, has also certified that the deceased was fit to make statement. Consequently, it cannot be said that she was not fit to make statement merely because her pulse and blood pressure were not recordable. The same could be due to extensive burns to the extent of about 95%, but it is proved from the aforesaid material that she was fit to make statement and she even survived for about nine days after suffering the burns. Learned counsel for the appellant also pointed out that Shri G. S. Saran, Judicial Magistrate (PW-4), has stated in cross- examination that he did not know if the patient was literate or illiterate. However, it is not explained as to how this circumstance helps the appellant or how it effects the prosecution case adversely. The deceased affixed her thumb impression on the statements because she had suffered 95% burns and obviously, she could not be in a position to affix her signatures. Learned counsel for the appellant also submitted that even Kuldeep Singh (PW-8), who is father of the deceased, has admitted that the deceased was earlier married with one Anil Kumar, who has also stepped into the witness-box as DW-1. It was also submitted that admittedly, there was divorce between the deceased and her first husband Anil Kumar by way of compromise Ex.D-A in Panchayat. However, learned counsel for the appellant, even on pointed inquiry, was unable to point out as to how this Crl. Appeal No. 49-DB of 2000 11 circumstance helps the appellant in any manner. Anil Kumar has stated in the witness-box that Ritu never tried to pour kerosene oil on herself. Thus, she never even feigned to commit suicide in the house of her first husband. For the reasons recorded herein above, we find that the prosecution evidence is trust-worthy and cogent and guilt of the appellant has been proved beyond reasonable doubt. Consequently, we find no merit in the instant appeal and the same is, therefore, dismissed. The appellant, if on bail, shall surrender to her bail bonds or shall be arrested to undergo the remaining sentence. ( L. N. MITTAL ) JUDGE February 26, 2009 ( MEHTAB SINGH GILL ) monika JUDGE