Crl. Appeal No.D-908-DB of 2004 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-908-DB of 2004 Date of Decision :21.07.2011 Bajrang Bali and others ... Appellants Versus State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.K.D.S. Hooda, Advocate for the appellants. Mr. K.D.S. Sidhu, Addl. A.G.,Punjab, for the respondent-State. -- Vijender Singh Malik, J. This is an appeal preferred by Bajrang Bali (since deceased) and others namely Durga Rani, Rakesh Kumar, Naresh Kumar @ Shunti and Geeta Rani, appellants against the judgment of conviction dated 19.10.2004 passed by learned Additional Sessions Judge, Moga, convicting Bajrang Bali, Durga Rani and Rakesh Kumar for an offence punishable under section 302 IPC, while all the five appellants for an offence punishable under sections 304-B and 498-A IPC and the order of sentence dated Crl. Appeal No.D-908-DB of 2004 --2-- 20.10.2004, vide which the following sentences were awarded to them. Bajrang Bali,Durga Rani 302 IPC Imprisonment for life and and Rakesh Kumar. to pay a fine of Rs.5000/-. In default of payment of fine to further undergo RI for six months each. Bajrang Bali,Durga Rani, 304-B RI for seven years each. Rakesh Kumar, Naresh Kumar & @ Shunti and Geeta Rani 498-A IPC RI for two years and to pay a fine of Rs.2000/-. In default of payment of fine to further undergo RI for three months each. All the sentences were ordered to run concurrently. The prosecution case against the appellants is that Pinki Rani, deceased, a resident of village Bhadaur, was married with Rakesh Kumar son of Bajrang Bali, a resident of village Chunga. Sufficient dowry was given by the parents of Pinki Rani at the time of marriage as per their capacity. Two months after her marriage, Durga Rani, her mother-in-law, Bajrang Bali, her father- in-law, Rakesh Kumar, her husband, Shunti, her Jeth (brother-in- law) and Geeta Rani, her Jethani (sister-in-law) started taunting her for bringing less dowry. All the appellants started beating her. Getting sick of their behaviour, she returned to her parental home and stayed there for about one year. Thereafter, her husband Rakesh Kumar and father-in-law Bajrang Bali brought a panchayat from village Chunga to village Bhadaur where a panchayat was also Crl. Appeal No.D-908-DB of 2004 --3-- convened. A compromise was then arrived at, in which it was settled that Pinki Rani would live with her husband separately from her in-laws in village Bhagike, where the family used to run a shop. Rakesh Kumar, her husband brought Pinki Rani to village Bhagike on 2.10.2000 in the presence of panchayat of village Bhadaur. On 07.10.2000 there was Dusshera festival. Her parents came to give her the Dusshera gifts. They came to the house of her daughter Pinki Rani at about 10.30 AM and they left at about 2.00 PM. In the meanwhile, her in-laws alongwith her Jeth and Jethani named Shunti and Geeta Rani had also come to village Bhagike on the same day at about 10.30 AM. Till the parents of Pinki Rani had not left the place, they stayed at the shop with Rakesh Kumar. After the parents of the deceased left the place, the aforesaid five persons came to her house at 2.15 PM. Immediately after reaching the house, they told Pinki Rani that they would teach her a lesson for bringing insufficient dowry. They were speaking about her failure to fulfill the demand of scooter, television and refrigerator. She made entreaties to them saying that her parents were poor and could not give all this. Hearing it, her mother-in-law caught Pinki Rani by her hair, her Jeth and Jethani caught her by her both arms and her father-in-law poured kerosene on her. Her husband lit a match stick and set her on fire with an intention to kill her. Pinki Rani cried and after sometime, she fell unconscious. She was brought to Civil Crl. Appeal No.D-908-DB of 2004 --4-- Hospital, Nihal Singh Wala on 7.10.2000 itself, wherefrom a medical ruqa was received at Police Station Nihal Singh Wala. The ruqa contained information regarding bringing of Pinki Rani to the hospital with burn injuries. It was also mentioned therein that she had been referred to Civil Hospital, Moga for treatment. Gurmohan Singh, ASI alongwith other police officials went to Civil Hospital Nihal Singh Wala. He sought information in writing about Pinki Rani and was told by the doctor that she had been sent to Civil Hospital, Moga. Gurmohan Singh, ASI then went to Civil Hospital, Moga and there he was similarly told by the doctor that she had been sent to DMC Hospital, Ludhiana for treatment. On 08.10.2000 Gurmohan Singh, ASI went to DMC Hospital, Ludhiana and on his application , the doctor opined that Pinki Rani was fit to make statement. Gurmohan Singh, ASI recorded the statement of Pinki Rani in the aforesaid terms. The statement of Pinki Rani, which was thumb marked by her, was sent to Police Station Nihal Singh Wala where Joginder Singh, ASI/SHO recorded the formal FIR. Statements of other witnesses were also recorded. Gurmohan Singh, ASI, then moved an application before learned Chief Judicial Magistrate, Ludhiana for recording the statement of Pinki Rani. Learned Chief Judicial Magistrate, Ludhiana, directed the Duty Magistrate to record the same. Mr. Crl. Appeal No.D-908-DB of 2004 --5-- H.J.S. Tiwana, Judicial Magistrate Ist Class, Ludhiana reached DMC Hospital, Ludhiana and recorded the statement of Pinki Rani. On the same day, Gurmohan Singh, ASI accompanied by Shiv Kumar and Ram Pal reached the place of incident and got the same photographed. He inspected the same and picked up half burnt plastic can meant for keeping kerosene, half burnt match box, burnt pieces of cloth and half burnt bed cover. He had sealed those articles with seal bearing impression 'GS' and took them into possession by way of recovery memo. He prepared rough site plan of the place of occurrence. He recorded statements of the witnesses. On return to the police station, he deposited the case property with the MHC with seals intact. On 11.10.2000 Baldev Singh, Sarpanch of village Chunga produced Bajrang Bali and Rakesh Kumar, appellants, before Gurmohan Singh, ASI and they were arrested. On 12.10.2000 Gurmohan Singh, ASI received a message from DMC Hospital, Ludhiana about the death of Pinki Rani in the hospital. Offence punishable under section 302 IPC was added to the case. On the same day, Gurmohan Singh, ASI reached DMC Hospital, Ludhiana and prepared inquest report regarding the dead body of Pinki Rani. Then, he had sent the dead body of Pinki Rani to Civil Hospital, Ludhiana for post-mortem examination through Shamsher Singh,Constable. Crl. Appeal No.D-908-DB of 2004 --6-- Dr. S.K. Sharma, Medical Officer, conducted post- mortem examination on the dead body of Pinki Rani on 12.10.2000 at 3.00 PM and found her to have burns all over the body except scalp, upper part of face, soles of feet and ears. He opined that the death in this case was due to shock and septicemia as a result of burns which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The doctor took the nose pin of the deceased and handed over the same to Shamsher Singh,Constable to produce before Gurmohan Singh, ASI, which was given the shape of parcel and sealed the same with seal 'AS' and was taken into possession by way of recovery memo. It was deposited with the MHC on return to the police station. On 14.10.2000 Krishan Kumar, member panchayat produced Durga Devi, appellant in the police station and she was arrested accordingly. On 23.12.2000, site plan of the place of occurrence was got prepared by Gursewak Singh, draftsman. Photographs of the spot were taken from the photographer on 24.12.2000. Statements of the witnesses were recorded and on completion of investigation, challan against the appellant was prepared by Sandeep Kumar, SI/SHO. Bajrang Bali, Durga Rani and Rakesh Kumar were charge sheeted for an offence punishable under sections 302,304-B Crl. Appeal No.D-908-DB of 2004 --7-- and 498-A IPC, vide order dated 26.03.2001. The appellants pleaded not guilty to the charge and claimed trial. After some evidence, the prosecution made an application under section 319 of the Code of Criminal Procedure, which was allowed vide order dated 06.09.2001 by learned Additional Sessions Judge, Moga and Naresh Kumar alias Shunti and Geeta Rani were summoned as additional accused to face trial alongwith Bajrang Bali and others. After securing their presence, charge against all the five appellants was framed for an offence punishable under sections 302, 304-B and 498-A IPC vide order dated 30.10.2001. To the charge so framed against the appellants, they pleaded not guilty and claimed trial. The prosecution has examined twelve witnesses in all at the trial. A number of witnesses were given up as unnecessary during the course of trial. After the evidence of the prosecution came to a close, the appellants were examined in the terms of section 313 Cr.P.C. Bajrang Bali, appellant has denied all the pieces of prosecution evidence put to him in the shape of questions. According to him, the case is false and the witnesses are deposing falsely. He has denied Pinki Rani to have been subjected to cruelty in connection with demand of dowry or for any other reason. According to him, Pinki Rani was of notorious nature and she could not adjust with him, his wife and his son Rakesh Kumar. She is said Crl. Appeal No.D-908-DB of 2004 --8-- to have deserted her matrimonial home and went to her parental home where she stayed for about two years. According to him, his son Rakesh Kumar had filed a petition for restitution of conjugal rights and thereafter they took panchayat to the parents of Pinki Rani on 25.09.2000. A panchayat was also convened on the other side and it was decided that she alongwith Rakesh Kumar would live separately from them in village Bhagike where Rakesh Kumar had started his own business. He alongwith his wife went to see Rakesh Kumar on the fateful day as it was Dusshera festival. He has added that Pinki Rani flared up on seeing them sitting at the shop of Rakesh Kumar. He has further added that Pinki Rani in a fit of rage set herself ablaze. He has further added that on hearing her screams, they went to the courtyard and extinguished the fire with the help of others. He has further added that there was a 'Halwai' shop adjoining the shop of Rakesh Kumar and that 'Halwai' had set up a furnace in the courtyard of the house of Rakesh Kumar. According to him, that 'Halwai' was present there near the furnace and was preparing sweets. Bajrang Bali has claimed to have taken the deceased to Nihal Singh Wala Hospital for treatment and thereafter to Civil Hospital, Moga for treatment, where the parents of the deceased arrived. They are said to have abused him and to have taken away the original compromise deed. He has further added that he alongwith others accompanied the parents of the deceased to the hospital at Ludhiana Crl. Appeal No.D-908-DB of 2004 --9-- where she was tutored by her parents to make certain statement. He has also denied Pinki Rani to have been in a fit state of mind when she has allegedly made the statement to the investigation officer and the Magistrate. It is further asserted that the statements of the deceased allegedly recorded by the investigating officer and the Magistrate are not her statements. Durga Rani and Rakesh Kumar, appellants have also adopted the stand taken by Bajrang Bali, appellant. Naresh Kumar alias Shunti, appellant, besides denying the incriminating material appearing in the prosecution evidence put to him in the shape of questions, has claimed that he and his wife Geeta Rani were found innocent during the course of investigation, conducted by DSP Lashkar Singh. He has denied any concern with the domestic affairs of co-accused Rakesh Kumar as he had been living separately from him. Geeta Rani, appellant has adopted the stand taken by her husband. In defence, the appellants have examined Baldev Singh as DW-1 and closed their defence evidence. After hearing learned public prosecutor for the State, learned defence counsel and going through the evidence on record, learned trial court convicted the appellants for the offence detailed above vide judgment dated 19.10.2004 and awarded the sentence detailed as above vide order dated 20.10.2004. Crl. Appeal No.D-908-DB of 2004 --10-- Feeling aggrieved by the judgment of conviction and the order of sentence passed by the trial court, the instant appeal has been brought by the appellants. We have heard Mr. K.D.S. Hooda, learned counsel for the appellants and Mr. K.D.S. Sidhu, learned Addl. A.G.,Punjab, for the respondent-State and have gone through the record of the case with their assistance. Learned counsel for the appellants has submitted that the parents of the deceased have failed to support the prosecution case. According to him, after the failure of the parents of the deceased to support the prosecution case, there remained two dying declarations with the prosecution to found its case upon. According to him, the first dying declaration is recorded by Gurmohan Singh, ASI on 08.10.2000, on which the FIR was recorded. This statement is Ex.PG and the FIR recorded thereon is Ex.PG/2. He has submitted that the other dying declaration is recorded by learned Judicial Magistrate Ist Class on the same day i.e. 08.10.2000. He has submitted that this dying declaration is Ex.PO. According to him, there is vital difference between the two dying declarations. Learned counsel for the appellants has further submitted that the occurrence took place on the eve of Dusshera . He has submitted that on the eve of Dusshera, Baldev Singh, DW-1 had put up a furnace in the courtyard of the house in occupation of Rakesh Crl. Appeal No.D-908-DB of 2004 --11-- Kumar, appellant. He has submitted that on that day, Baldev Singh, DW-1 was preparing sweets on that furnace for sale on Dusshera and there Pinki Rani, the wife of Rakesh Kumar, appellant, came engulfed in flames and made a statement to him. On his asking her as to why she had set herself on fire, Pinki Rani is stated to have told Baldev Singh that as per the compromise arrived at before the panchayat, the parents of Rakesh Kumar were not to visit them at village Bhagike and that in contravention of the said term of compromise, they had come there and for that reason she had set herself on fire. He has submitted that the statement of Baldev Singh cannot be discarded for the only reason that he is a defence witness. According to him, the statement of a defence witness is entitled to the same respect as is given to the statement of a prosecution witness. According to him, once the statement of Baldev Singh, DW-1 is found trustworthy, the other two dying declarations would be proved to have been made by Pinki Rani under the influence of her parents and as such no reliance could be placed on them. He has further submitted that the statement of Pinki Rani cannot be believed to have been mentally fit to make statement during the course of her making statement Ex.PO. He drew our attention to the documents Ex.PN, PN/1 and PN/2. According to him, Dr.Anita Jain, PW-11, who declared Pinki Rani fit to make statement in the beginning of the statement and opined that she Crl. Appeal No.D-908-DB of 2004 --12-- remained fit during her statement, did not attend the patient. He drew our attention in this regard to her statement recorded as PW-11. According to him, she has admitted that she did not treat the patient on 8th and 9th October, 2000 and the entries in her bed head ticket on the aforesaid dates are not in her hand. He has further submitted that endorsement with regard to the fact that the patient remained fit to make statement during her statement should have been there below the statement itself. He has submitted that the said endorsement is on a separate sheet, which shows that the same was obtained lateron. He has ,therefore, submitted that the statement of Pinki Rani made before the Magistrate, Ex. PO is clearly shown to be un-reliable for this reason also. Learned counsel for the appellants has further submitted that the trial court did not find the prosecution to have been successful in bringing home the guilt of the appellants namely Naresh Kumar @ Shunti and Geeta Rani for an offence punishable under section 302 IPC. He has further submitted that there is no evidence worth reliance against the appellants of having set Pinki Rani ablaze for or in connection with demand of dowry. He has submitted that the order of conviction passed by learned trial court against the appellants for an offence punishable under sections 304-B and 498- A IPC is also unsustainable. Crl. Appeal No.D-908-DB of 2004 --13-- Learned Additional Advocate General, Punjab for the respondent-State, on the other hand, has submitted that learned trial court has committed no error in appreciating the prosecution evidence and reaching the conclusions about the guilt of the appellants. According to him, there is nothing on record to hold the dying declarations made by the deceased doubtful. According to him, the parents of the deceased had fully supported the prosecution case in their statements but they withdrew their support from the prosecution case when they were examined again. He has submitted that Baldev Singh, DW-1 is not a truthful witness. According to him, had he been a witness to any statement made by Pinki Rani, he would not have waited for one month for making a statement in this regard. He has further submitted that there is no ground to interfere with the judgment of the trial court. The parents of the deceased named Shiv Kumar and Parveen Kumari have been examined by the prosecution in this case. Shiv Kumar was examined as PW-1 before making application under section 319 of the Code of Criminal Procedure and after summoning of two additional accused, he has been examined as PW- 6. Parveen Kumari has appeared in the witness box as PW-8. They had supported the prosecution case. However, they were put in the witness box again on 15.04.2004. They withdrew their support from the prosecution case. Reason for the same would be obvious to Crl. Appeal No.D-908-DB of 2004 --14-- everyone. However, reliance cannot be placed on their statements for two reasons. The first is that they have made a statement contrary to what they had stated earlier in the court and secondly they cannot be believed to have seen the actual occurrence of Pinki Rani being set afire by the appellants. Shiv Kumar, PW- 1 has stated that on 07.10.2000 he and his wife Parveen Kumari went to the house of their daughter Pinki Rani in village Bhagike. According to him, they reached village Bhagike at 10.15 AM and after staying there for some time, they left that place at 2 or 3 PM. The statement of this witness further reads that waiting for bus for 10 minutes at the bus stand, his wife developed suspicion about the intention of the appellants, who were seen there at the shop of Rakesh Kumar by her and on account of that suspicion, he (Shiv Kumar ) left his wife at the bus stand and reached the matrimonial home of Pinki Rani and saw that the appellants were sitting with his daughter. It is further stated by him that Bajrang Bali was having kerosene in a can and Rakesh Kumar was having a match box. According to him, Durga Rani, appellant had caught hold of Pinki Rani from her arms while Geeta Rani, appellant was sitting on her legs. It is further stated by him that when he raised alarm, Bajrang Bali poured kerosene on Pinki Rani and Rakesh Kumar torched her. Crl. Appeal No.D-908-DB of 2004 --15-- First of all, there was no reason for the wife of Shiv Kumar to have entertained such a suspicion. Even if it is believed that such a suspicion was entertained as it was natural on her part, the statement of Shiv Kumar made thereafter makes his conduct quite unnatural. Instead of making any hue and cry calling the police or accompanying his daughter to the hospital, he says that he returned from the place of occurrence to Bus Stand, Bhagike and therefrom they took a bus and came to village Bhadaur. This conduct on his part is quite unnatural and makes his statement of having seen the occurrence very doubtful. If the statement of Baldev Singh, DW-1 is held reliable, the statements claimed to have been subsequently made to Gurmohan Singh, ASI and learned Judicial Magistrate Ist Class, Ludhiana would become unreliable. However, on a plain analysis of the statement of Baldev Singh, DW-1, it appears that he is not a truthful witness. The first reason for this is given by learned Additional Advocate General and the same is that he made a statement in this regard for the first time a month after the incident to the Deputy Commissioner . He has although not stated as to when he made a statement before the police yet the same cannot be believed to have been made soon after the date of occurrence. Assuming the statement of Baldev Singh, DW-1 to be correct, the sequence of events that could be reconstructed from it, Crl. Appeal No.D-908-DB of 2004 --16-- taken with other evidence, would be that at 2.00 PM parents of Pinki Rani had left that place and at that time her in-laws were there at the shop of Rakesh Kumar, which adjoins his house, but is separate. The in-laws of Pinki Rani had still not entered the house. Rakesh Kumar even did not go to Pinki Rani before 2.00 PM when Baldev Singh claims her to have been seen by him in flames. At that time, there could have been no apprehension on the part of Pinki Rani of her in-laws visiting her at her matrimonial home. Even though the arrival of in-laws of Pinki Rani at village Bhagike was in contravention of the terms of the compromise, she could not be believed to have taken that step before making protest to her husband and other in-laws in this regard. Baldev Singh, DW-1 has further stated that he alongwith Rakesh Kumar, Bajrang Bali, and Durga Rani had put out the fire. He was cross-examined on the aspect of his or others suffering any burn injuries in putting out the fire. He has denied himself or others having received any burn injuries while putting out the fire. He seems to have become conscious of unnaturalness of his statement and for that reason he volunteered a statement to the effect that he used 'Khurchana' to extinguish the fire. Khurchana can be described as a long handled implement of a sweet maker with wide blade attached there to on one side. I am at loss to find out how such an instrument could be used to put out such a fire. These reasons, Crl. Appeal No.D-908-DB of 2004 --17-- therefore, go to show that reliance cannot be placed on the statement of Baldev Singh, DW-1. Ex.PO is the statement of Pinki Rani recorded by learned Judicial Magistrate Ist Class, Ludhiana on 08.10.2000. Dr. Anita Jain, PW-11 has stated that she opined vide Ex.PN/1 that Pinki Rani was fit to make statement on 08.10.2000 at 2.00 PM. She has further stated that after the statement was over, she again gave her opinion that Pinki Rani remained fit during her statement. This endorsement of the doctor is Ex.PN/2. It is correct that she did not treat the patient on 08th or 09th October, 2000 and for that reason, the entries in her bed head ticket of these two dates are not in her hand. The question that would arise is