IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 67-DB of 2005 DATE OF DECISION : 03.05.2010 Tirath Ram and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Dhruv Dayal, Advocate, for the appellants. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellants Tirath Ram and Raghbir Parkash are real brothers. Tirath Ram is younger to Raghbir Parkash. Both of them were tried by the court of Additional Sessions Judge, Bathinda, for the offence under Section 302 IPC, for committing the murder of Paramjit Kaur wife of Raghbir Parkash. Vide judgment dated 29.11.2004, both the appellants were convicted under Section 302 IPC and vide order dated 30.11.2004, they were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Against the said judgment and order, the appellants have filed the instant appeal. Crl. A. No. 67-DB of 2005 -2- 2. In the present case, the prosecution version is based upon the dying declaration (Ex.PO) of Paramjit Kaur, recorded by ASI Balwinder Singh (PW.7) at 1.00 PM on 23.11.2001 in Civil Hospital, Barnala. In her statement (Ex.PO), Paramjit Kaur stated that she was married with accused Raghbir Parkash about two years back. Her husband was having four brothers and three sisters, out of whom Tirath Ram was unmarried. Her husband and brother-in-law Tirath Ram used to harass her on the pretext that she should develop illicit relations with Tirath Ram, but she did not agree. She informed about the said fact to her father and brother. Several times, they used to come to her village and pacify the appellants, but despite that, they continued to maltreat her on that account. On 22.11.2001, her brother Amarjit Singh and father Ram Lal came to her house to see her and stayed for night in her house. On the day of occurrence i.e. on 23.11.2001, at about 7/7.30 AM, she was sitting in her room, her father and brother were sitting on the cot in the courtyard. Then Tirath Ram, who was holding a plastic can containing kerosene oil, and her husband, who was having a match box, entered the room, and with intention to kill her, Tirath Ram poured kerosene oil on her and her husband Raghbir Parkash put fire on her clothes. She raised noise. Then her father Ram Lal and brother Amarjit Singh immediately came in her room. They extinguished the fire. Both the accused ran away from the spot. After making arrangement of vehicle, her brother Amarjit Singh and father Ram Lal took her to Civil Hospital, Tapa, but due to her serious condition, she was referred to Civil Hospital, Barnala, Crl. A. No. 67-DB of 2005 -3- where she remained under treatment of the Doctor. She admitted her statement to be correct. According to ASI Balwinder Singh (PW.7), the recording of this statement took about one and half hours and he completed the statement at 2.30 PM. 3. On the basis of the said statement (Ex.PO), formal FIR (Ex.PO/2) under Section 307/34 IPC was recorded on the same day at 5.15 PM . As per the statement of PW.7 ASI Balwinder Singh, after recording the aforesaid statement, he also recorded the statements of Ram Lal and Amarjit Singh in Civil Hospital, Barnala. Thereafter, Amarjit Singh (brother of the deceased) was associated with the police party. They went to village Alike, at the spot. He inspected the spot and on the demarcation of Amarjit Singh, he prepared the rough site plan (Ex.PP) of the place of occurrence. From the spot, one plastic can containing small kerosene oil, half burnt clothes of Paramjit Kaur and a match box were taken into possession vide recovery memo Ex.PE. On return to the police station, the case property was deposited with MHC Boota Singh with seals intact. 4. On 28.11.2001, Paramjit Kaur died due to burn injuries and on the same day, vide DDR No. 14 (Ex.PK), offence under Section 302 IPC was added. On 29.11.2001, Dr. Rishi Tandon conducted the autopsy on the body of the deceased. In his opinion, the cause of death was septicemia shock due to burns described, which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Dr. Rishi Tandon was not examined. However, PW.8 Fateh Singh, Senior Laboratory Crl. A. No. 67-DB of 2005 -4- Technician, Govt. Medical College & Hospital, Sector 32, Chandigarh, proved the Post Mortem Report of deceased Paramjit Kaur as Ex.PR. 5. Appellants Tirath Ram and Raghbir Parkash were arrested on 25.11.2001 and 2.12.2001, respectively. After completion of investigation, the challan was filed against both the accused and they were charge sheeted for the offence under Section 302 IPC, to which they did not plead guilty and claimed trial. 6. In support of its case, the prosecution examined 8 witnesses. PW.1 Dr. Rajesh Sharma initially attended Paramjit Kaur, when she was brought to Primary Health Centre, Tapa, and after giving her first aid, he referred her to Civil Hospital, Barnala. He sent medical ruqa (Ex.PB) to the Police. PW.2 Dr. Hari Chand Gupta proved endorsement (Ex.PD/1) made by him on the police request (Ex.PD), whereby he declared the patient Paramjit Kaur fit to make statement. He referred the patient from Civil Hospital, Barnala to Rajindra Hospital, Patiala. PW.3 Amarjit Singh and PW.4 Ram Lal, the brother and father of the deceased Paramjit Kaur, are the eye witnesses of the occurrence, who corroborated the version given by the deceased in her dying declaration (Ex.PO). PW.6 SI Gurdeep Singh conducted part of the investigation after 24.11.2001. PW.7 ASI Balwinder Singh recorded the statement (Ex.PO) of the deceased, which was treated as her dying declaration. The statements of the other witnesses are formal in nature. 7. In his statement under Section 313 Cr.P.C., appellant Tirath Crl. A. No. 67-DB of 2005 -5- Ram stated that he is innocent and was falsely implicated in the case. He pleaded that from his childhood, he was living in a Sanyat in Dera of Balwant Muni at Bhikhi, District Mansa. He was not present at the time of occurrence. Appellant Raghbir Parkash also pleaded innocence and false implication in the case. He stated that his wife Paramjit Kaur remained under depression as she was mentally upset and was a patient of fits. At the time of occurrence, when she was preparing tea, she fell down on the stove due to fits and her clothes caught fire of the flames of stove. He extinguished the fire and took her to the Hospital. His brother-in-law and father-in-law were present in the house at the time of the occurrence. They came to know later on. He stated that he and his brother were falsely implicated by them in connivance with the police. 8. In support of their defence, the appellants examined three witnesses. DW.1 Dr. Rajesh Sharma proved the prescription slip Mark A and stated that he treated one Pali resident of Alike for epilepsy, but he has admitted that in the prescription slip (Mark A), the husband's or father's name of Pali is not mentioned. DW.2 Gian Kaur and DW.3 Budh Singh, both residents of village Alike, stated that Paramjit Kaur had sustained burn injuries, when she was preparing tea on the stop. They have also stated that accused Tirath Ram was not present at the time of the aforesaid occurrence. He generally remains outside the village in company of the saints. 9. The trial court, after considering the evidence on record and while relying upon the dying declaration (Ex.PO) made by the deceased as Crl. A. No. 67-DB of 2005 -6- well as the testimonies of PW.3 Amarjit Singh and PW.4 Ram Lal, brother and father of the deceased, the alleged eye witnesses, convicted and sentenced both the appellants, as indicated above. Hence, this appeal. 10. We have heard the arguments of learned counsel for both the parties. 11. Learned counsel for the appellants argued that in the present case, the learned trial court has convicted both the appellants, while relying upon the alleged dying declaration (Ex.PO) of the deceased, recorded by ASI Balwinder Singh (PW.7) as well as the testimonies of PW.3 Amarjit Singh and PW.4 Ram Lal, who are alleged to have seen the occurrence. According to the learned counsel, both the pieces of evidence, relied upon by the trial court, are wholly unreliable. He argued that neither the alleged eye witnesses were present at the time of the occurrence, nor they had witnessed any occurrence. In the statements of both the witnesses, there are many material contradictions and infirmities, which clearly indicate that both the witnesses had not witnessed the occurrence. He further argued that the version given by both the witnesses is highly improbable and the same does not inspire any confidence. Learned counsel, while referring to the statements of these witnesses as well as the other evidence available on record, particularly the documents Ex.PA and Ex.PB as well as the statement of PW.1 Dr. Rajesh Sharma, argued that these evidence clearly indicate that PW.3 Amarjit Singh and PW.4 Ram Lal did not take the deceased to the hospital, rather she was taken to the hospital by her husband Crl. A. No. 67-DB of 2005 -7- and father-in-law. These evidence belie the stand taken by the alleged eye witnesses that they were present at the time of the occurrence and had witnessed the occurrence with their own eyes. Learned counsel further argued that the alleged dying declaration made by the deceased and recorded by ASI Balwinder Singh (PW.7) is highly doubtful. He submitted that the said statement of the deceased was alleged to have been recorded at Civil Hospital, Barnala and was completed at 2.30 PM, but PW.2 Dr. Hari Chand Gupta categorically stated in his statement that though opinion (Ex.PD/1) was given by him, but he does not know whether at that time, any statement of Paramjit Kaur was recorded by the police or not. Learned counsel further argued that not only the recording of statement of Paramjit Kaur by ASI Balwinder Singh is doubtful, but there are legal infirmities, which render the said statement inadmissible in evidence. He argued that though initially at 1 PM, opinion was given that the patient was fit to make the statement, but the statement was not recorded in the presence of the Doctor and there is no evidence on record that during the time of recording of said lengthy statement, the patient remained fit. After recording of the statement, no opinion was sought from the doctor that throughout the period of recording her statement, she was mentally fit to make statement. 12. Learned counsel further argued that the alleged motive for committing the crime is highly improbable. According to the learned counsel, no husband will ask his wife to develop illicit relations with his younger brother, in presence of her father and brother and on her refusal Crl. A. No. 67-DB of 2005 -8- will commit her murder. Learned counsel further argued that in the instant case, the alleged recovery effected from the spot also appears to be doubtful, if the evidence of the prosecution is closely scrutinized. In this regard, learned counsel referred to the statement of PW.3 Amarjit Singh, who stated that on 23.11.2001 at 1.00 PM, he along with the police officials went to the spot for spot inspection and at that time, various recoveries were effected, whereas PW.7 ASI Balwinder Singh states that after recording the statement of Paramjit Kaur and sending the same for registration of the case and recording the statements of Amarjit Singh (PW.3) and Ram Lal (PW.4), he went to village Alike for spot inspection, where he took into possession one plastic can containing small kerosene oil, half burnt clothes of Paramjit Kaur and a match box. According to the learned counsel, the spot inspection was made in the evening and undisputedly, while effecting the recoveries, neither the Sarpanch, Panch, Nambardar or any other respectable person of the village was associated, therefore, the alleged recovery at the spot has not been proved. In the last, learned counsel argued that in view of the aforesaid factual position, the prosecution version is highly doubtful and the prosecution has failed to prove the guilt against the appellants beyond reasonable doubt. 13. On the other hand, learned Additional Advocate General, Punjab, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the appellants have been rightly convicted and sentenced, on the basis of the dying declaration (Ex.PO) and Crl. A. No. 67-DB of 2005 -9- the statements of the eye witnesses. 14. We have considered the rival contentions of learned counsel for the parties and perused the record of the case. 15. From the Post Mortem Report (Ex.PR), it has been proved that Paramjit Kaur wife of Raghbir Parkash has died due to burn injuries on 28.11.2001. According to the prosecution, she was put on fire after pouring kerosene oil by both the accused on 23.11.2001 at about 7.30 AM in her matrimonial house at village Alike. At that time, her brother Amarjit Singh (PW.3) and father Ram Lal (PW.4) were present. They had seen the occurrence. They extinguished the fire. After arranging a vehicle, they took her to Primary Health Centre, Tapa, where she was given first aid and thereafter was referred to Civil Hospital, Barnala. As per the medical treatment slip (Ex.PA), which has been proved by PW.1 Dr. Rajesh Sharma, who was posted as Medical Officer at Primary Health Centre, Tapa, the patient arrived in the Primary Health Centre, Tapa on 23.11.2001 at 8.40 AM and was discharged on the same day at 8.55 AM, as she was referred to Civil Hospital, Barnala. According to this document, appellant Raghbir Parkash had brought the patient to the Health Centre. His father Ram Lal (father-in-law of the deceased) was also present. Ex.PB is the medical ruqa sent by the Doctor to the police, wherein it has also been mentioned that Smt. Paramjit Kaur aged 22 years was brought in burning condition in the hospital by her husband Raghbir Parkash and due to serious condition, she was referred to Civil Hospital, Barnala. PW.1 Dr. Rajesh Sharma, while Crl. A. No. 67-DB of 2005 -10- appearing in the court, has proved these two documents. This evidence on record creates serious doubt in the prosecution version that Paramjit Kaur was taken to the hospital by her brother and father. 16. Further, after discharge from Primary Health Centre, Tapa, Paramjit Kaur was admitted in Civil Hospital, Barnala at 9.30 AM. She remained admitted there upto 2.35 PM, when she was discharged and referred to Rajindra Hospital, Patiala. Ex.PC is the bed head ticket of Paramjit Kaur, wherein it is clearly mentioned that she was brought to the hospital by appellant Raghbir Parkash. According to the prosecution version, PW.7 ASI Balwinder Singh went to Civil Hospital, Barnala on the same day and he reached there at 12.00 noon. He moved an application (Ex.PD) to the doctor for his opinion about the fitness of the patient to make the statement. Ex.PD/1 is the opinion given by Dr. Hari Chand Gupta (PW.2) of Civil Hospital, Barnala, at 1 PM to the effect that condition of the patient was serious, but she was fit to make the statement. However, in his cross-examination, PW.2 Dr. Hari Chand Gupta has categorically stated that he did not know whether any statement of Paramjit Kaur was recorded by any police official or not. As per the prosecution version, after obtaining the said opinion, PW.7 ASI Balwinder Singh recorded the statement of Paramjit Kaur. He started the recording of statement at 1 PM and completed the same at 2.30 PM. Though in his cross-examination, PW.7 ASI Balwinder Singh stated that he recorded the statement of Paramjit Kaur in the presence of the doctor, who was standing by his side, but this part of his statement has not Crl. A. No. 67-DB of 2005 -11- been corroborated by PW.2 Dr. Hari Chand Gupta. 17. On closely scrutinizing the statement of PW.7 ASI Balwinder Singh, we find many contradictions and infirmities in his statement, which make his testimony as untrustworthy and unreliable, and create doubt about making of the alleged statement by the deceased to him. He has stated that when he recorded the statement of Paramjit Kaur, she remained fit. The statement was recorded for one and half, but there is no evidence on record, except his statement, that throughout the period of recording the statement, patient remained fit and was in a position to make the statement. After completing the statement of Paramjit Kaur, PW.7 ASI Balwinder Singh did not obtain the opinion of the doctor that throughout the said period, she remained fit to make statement. Rather, Dr. Hari Chand Gupta (PW.2), in his statement, categorically stated that he does not know whether any statement of Paramjit Kaur was recorded by the police or not. 18. Secondly, in his statement, PW.7 ASI Balwinder Singh has stated that when statement of Paramjit Kaur was recorded, her front upper portion i.e. chest etc. was seriously burnt, however, there was no burn injury on her hands and face. Therefore, he had obtained her thumb impression on her statement. This fact is also contrary to the medical evidence. The Post Mortem Report (Ex.PR) clearly indicates that there were burn injuries on both the palms of the deceased Paramjit Kaur. This witness has further stated that on the day of occurrence, after recording the statement of Paramjit Kaur and sending the same for registration of the FIR, he recorded Crl. A. No. 67-DB of 2005 -12- the statements of Amarjit Singh (PW.3) and Ram Lal (PW.4), whereas these witnesses (PW.3 and PW.4) have stated that their statements were not recorded by the police on that day. A close scrutiny of the evidence led by the prosecution, particularly the statement of PW.7 ASI Balwinder Singh, statement of PW.2 Dr. Hari Chand Gupta and the other documents pertaining to the treatment of the deceased, creates a serious doubt regarding the making of statement (Ex.PO) by the deceased Paramjit Kaur to ASI Balwinder Singh. 19. There is one important fact in the statement of PW.7 ASI Balwinder Singh, wherein he has stated that when he recorded the statement (Ex.PO) of Paramjit Kaur, her brother Amarjit Singh (PW.3) and father Ram Lal (PW.4) were present. In the instant case, the possibility cannot be ruled out that the police officials, in connivance with Amarjit Singh (PW.3) and Ram Lal (PW.4), when they later on came to the Hospital, concocted the prosecution version. This fact is established from the fact that the FIR in this case was registered at 5.15 PM. Therefore, it is quite possible that when the father and brother of the deceased reached the hospital, in their connivance, the aforesaid statement (Ex.PO) of the deceased Paramjit Kaur was concocted, on the basis of which the FIR was registered, because it has come in evidence that at 2.35 PM, the patient was discharged from Civil Hospital, Barnala and was referred to Rajindra Hospital, Patiala. If any statement of Paramjit Kaur would have been recorded by ASI Balwinder Singh between 1 PM and 2.30 PM, then Dr. Hari Chand Gupta (PW.2), who Crl. A. No. 67-DB of 2005 -13- had attended the patient, discharged her and referred her to Rajindra Hospital, Patiala, at 2.35 PM, might not had stated that he cannot tell whether any statement of Paramjit Kaur was recorded by the police or not. Further, the fact that there was sufficient time for ASI Balwinder Singh to arrange for the Judicial Magistrate to record the dying declaration of the deceased, but he did not make any attempt to get her statement recorded from a Judicial Magistrate, creates a doubt. He himself recorded the statement (Ex.PO) without following the guidelines in this regard issued by the High Court from time to time. The Hon'ble Supreme Court in Smt. Laxmi v. Om Parkash, AIR 2001 Supreme Court 2383, while reiterating the view taken in Munna Raja and another v. The State of Madhya Pradesh, AIR 1976 SC 2199, has held that a dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and it has been urged that the investigating officers should avail the services of Magistrate for recording dying declaration, if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer. In Dalip Singh v. State of Punjab, AIR 1979 SC 1173, it was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was Crl. A. No. 67-DB of 2005 -14- left out of consideration as it contained a statement which was a bit doubtful. In the present case also, ASI Balwinder Singh has not explained as to why he had not arranged for the Judicial Magistrate to record the dying declaration. Even he did not record the alleged dying declaration in the presence of the doctor. Therefore, the said dying declaration recorded by ASI Balwinder Singh does not inspire any confidence and it is not safe to rely upon such dying declaration for convicting two persons. 20. The second question arising for consideration is : Whether the testimonies of two eye witnesses, namely PW.3 Amarjit Singh and PW.4 Ram Lal, are reliable and trust-worthy? 21. It is well settled that while assessing the testimonies of eye witnesses, the Court must adhere to two principles : whether in the circumstances of a case, it was possible for the eye witnesses to be present at the scene and whether there was anything inherently improbable or unreliable in their testimonies. In the present case, presence of both the eye witnesses at the time of the occurrence is highly doubtful. This doubt has been created because of various contradictions in their statements. Firstly, as per their version, after the occurrence, both the accused ran away from the spot and both the witnesses had taken Paramjit Kaur to the hospital. But the hospital record, as discussed earlier, clearly belies their version. As per the said record, Paramjit Kaur was taken to Primary Health Centre, Tapa, by her husband Raghbir Parkash and after her discharge from Primary Health Centre, Tapa, she was taken to Civil Hospital, Barnala, by her husband Crl. A. No. 67-DB of 2005 -15- Raghbir Parkash. Secondly, PW.3 Amarjit Singh, in his statement, stated that the police visited Civil Hospital, Barnala at about 12.00 noon on 23.11.2001 and recorded the statement of his sister Paramjit Kaur. When the statement of his sister was recorded by the police, he was not present there, therefore, he cannot say if her thumb impression was obtained on her statement or not. On the other hand, PW.7 ASI Balwinder Singh stated that he recorded the statement of Paramjit Kaur at 1.00 PM and at that time, her brother and father were present. Thirdly, PW.3 Amarjit Singh stated that on 22.11.2001 at about 5 PM, he and his father Ram Lal (PW.4) reached village Alike. On that day, they slept in the adjoining room of Raghbir Parkash, whereas PW.4 Ram Lal stated that he and his son slept in the courtyard. PW.3 Amarjit Singh states that on the day of occurrence, except appellants Tirath Ram and Raghbir Parkash, no one was present in