Punjab-Haryana High Court

Tarsem Lal And Others vs The State Of Punjab on 4 March, 2009

Criminal Appeal No.353-SB of 1998 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
Criminal Appeal No.353-SB of 1998
Date of Decision:04.03.2009

Tarsem Lal and others
.....Appellants
Vs.

The State of Punjab
.....Respondent

CORAM:- HON'BLE MR. JUSTICE HARBANS LAL

Present:- Mr. H.S. Gill, Senior Advocate with Mr. Vivek Goel,
Advocate for the appellants.

Mr. T.S. Salana, Deputy Advocate General, Punjab.
****
JUDGMENT

HARBANS LAL, J.

This appeal is directed against the judgment/ order of sentence

dated 7.3.1998 passed by the Court of learned Additional Sessions Judge,

Jalandhar whereby he convicted and sentenced the accused Tarsem Lal,

Hira, Mohan Lal, Shakuntla and Baldev to undergo rigorous imprisonment

for 3 years and to pay a fine of Rs.1,000/- each under
Section 498-A
of IPC

and in default of payment thereof, the defaulter was to further undergo

rigorous imprisonment for 3 months and also sentenced to undergo rigorous

imprisonment for 5 years and to pay a fine of Rs.500/- each under
Section
of IPC and in default of payment of fine, the defaulter was to further

undergo rigorous imprisonment for one month, with a further direction that

the substantive sentences shall run concurrently.

Succinctly put, the facts of the prosecution case are that the

marriage of Kamlesh deceased was solemnised with the accused Tarsem Lal

Criminal Appeal No.353-SB of 1998 -2-

about 2 years prior to her death, which took place on 11.10.1995. The

harassment and ill-treatment meted out by her husband, her husband's

brothers and mother-in-law, forced her to douse her body in kerosene oil

and set ablaze on 27.09.1995. Shortly thereafter, she was removed to the

Civil Hospital, Phillaur, where her statement was recorded by Sub Inspector

Harbhajan Singh. On the dint of the same, the FIR was registered. She was

referred to D.M.C. and Hospital Ludhiana, where she remained hospitalised

till 11.10.1995 and ultimately she succumbed to the burn injuries. Another

dying declaration of her was recorded by Mr. S.K. Sachdeva, Judicial

Magistrate Ist Class, Ludhiana. In her such dying declaration, she reiterated

that the accused used to pick up quarrel with her and taunt her of her living

with her husband's father's younger brother. After death, her dead body was

brought to Civil Hospital, Phillaur, where the same was subjected to post

mortem examination. In due course, the accused were put under arrest.

After completion of investigation, the charge-sheet was laid in the Court of

learned Illaqa Magistrate, who committed the same to the Court of Sessions

for trial of the accused.

On commitment, all the accused were charged under
Sections

498-A
/
of IPC to which they did not plead guilty and claimed trial. To

bring home guilt against the accused, the prosecution examined PW1 Dr.

Ram Parshad, PW2 Dr. Jagjit Singh, PW3 Ratto, PW4 ASI Prit Kanwal Jit

Singh, PW5 Prithipal Singh MHC, PW6 Constable Gurmukh Singh, PW7

ASI Jagdish Ram, PW8 Iqbal Singh, PW9 Jagdish Lal, Head Clerk, PW10

SI Harbhajan Singh Investigator and closed its evidence.

When examined under
Section 313
of Cr.P.C, all the accused

denied the incriminating circumstances appearing in the prosecution

Criminal Appeal No.353-SB of 1998 -3-

evidence against them and pleaded innocence. Tarsem Lal accused has put

forth as under:-

"I am innocent. After about one month of my marriage, I went

back to Saudi Arabia where from I had come for the purpose of

marriage as I had been there for the livelihood since 1988. I

came back at Delhi on 24.9.1995 and reached my village on

that night. My luggage while coming to India had been booked

in separate Cargo which was not given to me and on 27.9.95

early in the morning I and my younger brother Mohan Lal had

gone to Delhi to take the luggage but it was not traceable and

we both came back to our village on the evening of 28.9.95 and

came to know about this episode. Then, we both the brothers

went to D.M.C. Ludhiana, where my wife Kamlesh had been

under treatment due to burn injuries. I and my father had spent

about 20,000/- Rupees on the medicines, which the doctors

prescribed for her. The receipts regarding the purchase of

medicines are with me. I had great love and affection with my

wife and from my earnings, I had provided her with all the

facilities like colour TV, Fridge, VCR, deck, clothes and

ornaments etc. In the month of June 1995, I was informed that

my wife had appendicitis and I had informed my parents to get

her admitted in the hospital for treatment and consequently, she

was admitted in Jyoti Nursing home on 15.6.1994 and about

Rs.10,000/- had been spent for her treatment. The doctor of the

said nursing home namely Gurbir Kaur Bath after thoroughly

examining my wife, had also informed that there was a tumor in

Criminal Appeal No.353-SB of 1998 -4-

Bachedani and she used to remain dismayed on account of this

and had been telling to my mother that would she be able to

bear a child. I and my mother had been consoling her that her

proper treatment would be got arranged and she would be all

right and almighty would prove all type of pleasure to us. I

never rebuked her nor I ill-treated her nor harassed her on any

count. I am also astonishing as to why she had committed

suicide. She had after my departure to Saudi Arabia shifted in

the house of my real uncle Chaman Lal who is doing karyana

shop in the village. But on the request of my mother-in-law, to

my father, Kamlesh came to the house of my parents only 3

months prior to my arrival in India. My uncle Chaman Lal had

kept some of her ornaments which were not given back to her

and she was also very much disturbed on the non-delivery of

the ornaments by my uncle. The panchayat sarpanches and

other respectables of village Garha i.e., my in-laws village and

of my village Rasulpur, made request to the investigating

agency that I and my other family members were innocent and

they should not be challaned but even then we have been

challaned by the police. I am innocent."

Accused Bhira has set forth in the following terms:-

"I am innocent. On the day of occurrence, i.e. 27.9.95, I and

my mother Shakuntla along with other villagers had gone to

pay homage to the shrine of Chint Purni and Jwala Ji and came

back on 28.9.95 evening and heard about this incident. I used

to do labour and go for labour purposes from the house early in

Criminal Appeal No.353-SB of 1998 -5-

the morning and come back late at night. I had full regard for

my sister-in-law Kamlesh deceased and never had any quarrel

with her. I am innocent and have been falsely implicated in

this case."

Accused Mohan Lal has stated as under:-

"I am innocent. On 27.9.95, early in the morning I and my

brother Tarsem Lal had gone to Delhi Airport to take luggage,

which my brother had brought from abroad but that was not

traceable and stayed in the night at Delhi. In the next evening

of 28.9.95, I and Tarsem Lal came back to the village and

heard about the sad episode. We both rushed to DMC

Ludhiana, where my sister-in-law Kamlesh was admitted for

her treatment I always treated her as my mother being elder

sister-in-law and never picked up any quarrel with her. I have

been falsely implicated in this case."

Accused Shakuntla has taken up the following plea:-

"I am innocent. After the marriage of my son with Kamlesh,

my son went to Saudi Arabia after one month of the marriage.

I treated Kamlesh just as my daughter and not as daughter-in-

law. There had been no conflict between us. She had

developed appendicitis and her treatment was obtained in Jyoti

Nursing Home, Phillaur, and about Rs.10,000/- had been spent.

She remained admitted in the hospital for 10 days and I had

been nursing her like mother. On the instigation of her mother

Ratto, she had gone to the house of my brother-in-law Chaman

Lal in the same village after about 1½ months of the marriage,

Criminal Appeal No.353-SB of 1998 -6-

and when letter from my son Tarsem Lal was received that he

was coming back to India, her mother Ratto and Kamlesh came

to our house and begged pardon for their folly for leaving the

house and my husband Mohinder Pal forgave them and

allowed to live in our house. I and my son Bhira and other co-

villagers for about 40 in number had gone to pay homage to

Chint Purni and Jwalaji on the day of occurrence on the truck

of Hansa our co-villager and had come back to the village on

28.7.1995 and heard about the sad episode. Kamlesh used to

remain dismayed as the doctor had told her that there was

tumor on her ovary and she was apprehending, if she would be

able to bear a child or not. We never gave any type of

maltreatment nor made any demand of dowry from her and I

have been falsely implicated in this case.

Accused Baldev has stated as under:-

"I am innocent and do agriculture labour in the fields of a

landlord known as Tehsildar in village Rurka. I occasionally

come to my home once in a week and on the day of occurrence,

I was not present at the house. I had been informed by one

Darshan Singh of my village about the said incident. I had full

respect for my sister-in-law Kamlesh deceased. I had no

quarrel with her on any occasion. I have been falsely

implicated in this case."

In their defence, they examined DW1 Gurdas Singh, DW2

Piare Lal and DW3 Mohinder Lal.

After hearing the learned Additional Public Prosecutor for the

Criminal Appeal No.353-SB of 1998 -7-

State, the learned defence counsel and examining the evidence on record,

the learned trial Court convicted and sentenced all the accused as noticed at

the outset. Feeling aggrieved with their conviction/ sentence, they have

preferred this appeal.

I have heard the learned counsel for the parties and perused the

record with due care and circumspection.

Mr. H.S. Gill, learned Senior Advocate appearing on behalf of

the appellants urged with great vigour that the First Information Report in

the instant case was recorded on the statement of Kamlesh deceased, when

she had been removed to the Civil Hospital at Phillaur, after she had

received burn injuries. In this statement, she had alleged that the accused

persons used to quarrel with her and she had poured kerosene oil on her and

set herself afire and was removed to the Civil Hospital, Phillaur by her

father-in-law, from where she was referred to Daya Nand Medical College

and Hospital, Ludhiana, where her statement was recorded by a Magistrate

in which she stated that all her in-laws family members used to say that she

was bad with her father-in-law's brother and that she will die and then she

set herself on fire. From this dying declaration, no inference of abetment of

suicide can be drawn, nor any offence under
Section 498-A
of IPC can be

said to have been committed. In fact, the only witness produced regarding

the alleged harassment was her mother Ratto PW3 and even she did not give

any reason or motive for the alleged treatment. A perusal of her statement

clearly indicates that a false story was created after unfortunate death of her

daughter Kamlesh. Indeed, Ratto PW has also admitted that Tarsem Lal

appellant had gone to Saudi Arabia only one or one and a half months after

the marriage and returned only on 24.9.1995. Actually, on 25.9.1995,

Criminal Appeal No.353-SB of 1998 -8-

Tarsem Lal had again gone to Delhi to collect his luggage, which had been

booked by a separate Cargo. He came back on 28.9.1995 to his village and

before that the incident had occurred. The learned trial Court has failed to

appreciate the conduct of the accused persons that it was Mohinder Lal,

father-in-law of the deceased who had removed her to Civil Hospital,

Phillaur and then to DMC and Hospital, Ludhiana, where she expired on

11.10.1995, i.e., after 14 days of the alleged occurrence. During this

interregnum, more than Rs.20,000/- were spent by the husband of the

deceased on her treatment. Ratto PW has also admitted that her son-in-law

Tarsem Lal after the marriage had provided amenities like Television,

Fridge, gold ornaments etc. to the deceased. There was no complaint made

by Ratto either to the police or to any Panchayat of the Village, which also

shows that a false story was coined with an ulterior motive.

As emanates from the defence evidence, on the date of

occurrence, only Mohinder Lal, father-in-law of the deceased was in the

house and he had extinguished the fire. He himself had also received

injuries and got her admitted in Civil Hospital, Phillaur. Neither accused

was present in the house at the time of occurrence. In fact, the deceased

used to remain depressed, because when about an year earlier, she was

operated upon for appendicitis, a tumor was also removed from her Uterus.

She had a feeling that she will not be able to bear a child. She was ashamed

of her own follies. In these premises, the charged offence is not established

against either appellant.

To buttress these stances, he has sought to place abundant

reliance upon
Hans Raj v. State of Haryana
, 2004(2) Apex Criminal 476;

Mahendra Singh and another v. State of M.P.
, 1996 Criminal Law

Criminal Appeal No.353-SB of 1998 -9-

Journal 894 and State of Haryana v. Ravi Kumar, 2005(2) Recent

Criminal Reports (Criminal) 237.

To overcome these submissions, Mr. T.S. Salana, Deputy

Advocate General, Punjab appearing on behalf of the State argued that the

dying declaration Ex.PX coupled with the subsequent dying declaration

Ex.PB speaks volumes of the fact that the conduct of the appellants had

brought about the situation to such a boil, which forced her to commit

suicide.

On a careful consideration of the rival contentions, the view I

am disposed to take is that the contentions raised on behalf of the appellants

outweigh the submissions made by Mr. Salana for the reasons to be

recorded hereinafter:-

The sheet-anchor of the prosecution is the dying declaration

Ex.PB recorded by Harbahajan Singh Sub Inspector, investigator followed

by another dying declaration Ex.PX taken down by Mr. S.K. Sachdeva,

Judicial Magistrate First Class, Ludhiana. The sum and substance of the Ex.

PB is that "my (referring to the deceased) husband Tarsem Lal son of

Mohinder Lal and my mother-in-law Shakuntla and my Deor Deba, Bhabbar

and Mohan used to pick up quarrels with me and my husband Tarsem Lal

son of Mohinder Lal was saying that I will be finished off. Thereafter, by

going into the kitchen, I poured kerosene oil and set myself ablaze. The fire

was put off by my father-in-law Mohinder Lal." It is in the evidence of Dr.

Ram Parshad PW1 that "Hair of the body singed and burns were 100%" It

is also in his cross-examination that "the injured had 100% burn injuries,

when she was brought to Civil Hospital, Phillaur. It is correct that on

Ex.PB, I did not give any starting certificate nor at the end of statement of

Criminal Appeal No.353-SB of 1998 -10-

Smt. Kamlesh that she remained fit throughout, when her statement was got

recorded by the Sub Inspector in my presence." The question arises if she

had 100% burn injuries on her body, could she be able to make a

comprehensive statement Ex. PB. It is crystal clear from the above

extracted cross-examination of this Doctor that neither at the start nor on

conclusion of dying declaration, he certified that she was in a fit state of

mind to make statement and remained fit throughout, when her statement

was being recorded. Ex. PB is not in question/answer form. The degree of

burns ipso-facto gives rise to the presumption that in such a critical

condition, she could not give such a statement. The absence of certification

by the Doctor regarding fitness of the patient on both the stages, further

raises dimensions of suspicion. Thus, the authenticity of Ex. PB is rendered

highly doubtful. The investigator has not assigned any reason worth

mention as to why he did not approach the Illaqa Magistrate at Phillaur

where undeniably Judicial Courts are situated. It is not in his evidence that

the condition of the patient was deteriorating and feeling that she may die

before he approached the Illaqa Magistrate, he proceeded to record her

statement. She survived for about 14 days. He went on to say that on

conclusion of the dying declaration, it was attested by the Doctor, whereas

PW1 Dr. Ram Parshad has denied this fact.
A close examination of Ex.PB

would reveal that it does not bear the opinion of the Doctor that she was in a

fit state of mind to make statement and continued to be so, while she was

under examination. The statements made by a person as to the cause of his

death or as to any of the circumstances of the transaction, which resulted in

his death are themselves relevant facts and admissible in evidence under

Section 32(1)
of the Indian Evidence Act in case in which the cause of that

Criminal Appeal No.353-SB of 1998 -11-

person's death comes into question. A statement commonly known as

"dying declaration" constitutes such an important evidence in criminal

cases. It is thus necessary that a Court trying the case should have before it

a correct and faithful record of the statement made by the dead person, as

ruled in re:
Khushal Rao v. State of Bombay
, AIR 1958 Supreme Court

22 followed in
Harbans Singh and another v. The State of Punjab
, AIR

1962 Supreme Court 439. Chapter 13-A of the Rules and Orders of Punjab

and Haryana High Court, Volume 3 contemplates that where a person whose

evidence is essential to the prosecution of a criminal charge or to the proper

investigation of an alleged crime, is in danger of dying before the enquiry

proceedings or the trial of the case commences, his statement, if possible, be

got recorded by a Judicial Magistrate. When the police officer concerned

with the investigation of the case or the medical officer attending upon such

person apprehends that such person is in the danger of dying before the case

is put in court, he may apply to the Chief Judicial Magistrate, and, in his

absence, to the senior most Judicial Magistrate present at the headquarters,

for recording the dying declaration. On receiving such application, the

senior most Judicial Magistrate shall at once either himself proceed, or

depute some other Judicial Magistrate to record the dying declaration.

Before proceeding to record the dying declaration, the Judicial Magistrate

shall satisfy himself that the declarant is in a fit condition to make a

statement, and if the medical officer is present, or his attendance can be

secured without loss of time, his certificate as to the fitness of the declarant

to make a statement should be obtained. If, however, the circumstances do

not permit waiting for the attendance of the Medical Officer, the Judicial

Magistrate may in such cases proceed forthwith to record the dying

Criminal Appeal No.353-SB of 1998 -12-

declaration, but he should note down why he considered it impracticable or

inadvisable to wait for a doctor's attendance. The statement, whether made

on oath or otherwise, shall be taken down by the Judicial Magistrate in the

form of a simple narrative. This, however, will not prevent the Judicial

Magistrate from clearing up any ambiguity, or asking the declarant to

disclose the cause of his apprehended death or the circumstances of the

transaction in which he sustained the injuries. If any occasion arises for

putting question to the dying man, the Judicial Magistrate should record the

questions as also the answers which he receives. The actual words of the

declarant should be taken down and not merely their substance. As far as

possible, the statement should be recorded in the language of the declarant

or the court language. At the conclusion of the statement, the Judicial

Magistrate shall read out the same to the declarant and obtain his signature

or thumb impression in token of its correctness, unless it is not possible to

do so. The dying declaration shall then be placed in a sealed cover and

transmitted to the Judicial Magistrate having jurisdiction to deal with the

case to which it relates. Where in an emergency a dying declaration has to

be recorded at a place away from the District Headquarters, the

investigating officer or the medical officer attending upon the dying man

shall apply to the nearest Judicial Magistrate to record the dying declaration

and such Judicial Magistrate shall immediately proceed to the spot and take

down the statement of the dying man. This, however, would not prevent the

medical officer or the police officer connected with the investigation of the

case from recording the dying declaration, if he is of the opinion that death

is imminent and there is no time to call a Judicial Magistrate. In such cases,

the police or the medical officer concerned must note down why it was not

Criminal Appeal No.353-SB of 1998 -13-

considered expedient to apply to a Judicial Magistrate for recording the

dying declaration or to wait for his arrival. Where a dying declaration is

recorded by a police officer or a medical officer, it shall, so far as possible,

be got attested by one or more out of the persons who happen to be present

at the time.

A careful delving into Ex.PB would reveal that the Investigator

has not noted down as to why it was not considered expedient to apply to

the Judicial Magistrate at Phillaur for recording the dying declaration. It too

does not bear the attestation of one or more out of the persons who

happened to be present at the material time. It is duty of the person

recording a dying declaration to take every possible precaution to ensure the

making of a free and spontaneous statement by the declarant without any

prompting suggestion or aid from any other person. As ruled by the Apex

Court in re: State of Punjab through
Secretary v. Raj Kumar and others
,

2008(8) Supreme Court Cases 543, the Court has to scrutinise the dying

declaration carefully and must ensure that the declaration is not the result of

tutoring, prompting or imagination. The deceased had opportunity to

observe and identify the assailant and was in a fit state to make the

declaration. Where the dying declaration is suspicious, it should not be

acted upon without corroborative evidence. The dying declaration which

suffers from infirmity cannot form the basis of conviction. Normally, the

Court in order to satisfy whether the deceased was in a fit mental condition

to make the dying declaration look upto the medical opinion. But where the

eye witness has said that the deceased was in a fit and conscious state to

make this dying declaration, the medical opinion cannot prevail. Where the

prosecution version differs from the version as given in the dying

Criminal Appeal No.353-SB of 1998 -14-

declaration, the said declaration cannot be acted upon. Where there is more

than one statement, the nature of dying declaration, one first in point of time

must be preferred. Of course, if the plurality of dying declarations could be

held to be trustworthy and reliable, it has to be accepted.

As observed in re:
Hans Raj
(supra), the woman committed

suicide within seven years of marriage due to the cruelty by the husband.

The allegations against the accused were that he was addicted to

consumption of "Bhang" and there were frequent quarrels between the two.

Sometimes, she was given beatings. The Apex Court held that this fact

alone does not automatically give rise to the presumption that the suicide

had been abetted by her husband. The Court should find out that cruelty

was of such a nature as was likely to derive the woman to commit suicide or

to cause grave injury or danger to life, limb or health of the woman. In the

present one, there are no allegations in either dying declaration that either

accused used to give beatings to the deceased.

If it is assumed that there

used to be quarrels between the deceased and the accused-appellants on

account of her putting up in the house of Chaman Lal, nonetheless, in view

of
Hans Raj
case (supra), the offence under
Section 306
of IPC is not

established.
In re Ravi Kumar(supra), the woman committed suicide by

setting herself on fire. As per dying declaration, her husband was not of

good character and both used to quarrel with each other. The detail of

character was not spelt out. On a night preceding suicide, husband gave

beatings to her. It was held that offence of abetment under
Section 306
of

IPC is not made out. Every domestic quarrel between a couple cannot be

taken as a ground for abetment to suicide and the behaviour of a normal and

not a quarrelsome or high strung individual must be taken as the yard stick.

Criminal Appeal No.353-SB of 1998 -15-

In the instant case, the record is quite barren to show as to what had

happened between the deceased and the accused- appellants soon before,

she committed suicide. Thus, it is very difficult to say in the factual

scenario that the deceased had put an end to her life on being abetted by the

accused - appellants.

On Ex. PB there are two over-lapping thumb impressions. Of

these, one being wholly ink smudged is wholly in-decipherable, whereas the

other one, which seems to have been super-imposed partly reveal a few

ridge characteristics. For the reasons detailed heretofore, this document is

of suspicious nature. Consequently, it has to be excluded from

consideration.

Adverting to Ex.PX, it too reveals that the opinion of the

Doctor before start or at the conclusion was not obtained. This also does

not bear the certification by the learned Magistrate that the declarant was fit

to make a statement and it contained a correct and faithful record of the

statement made by her as well as of the questions which were put to her. As

its contents proceed, all the members of the family, my mother-in-law,

husband, 3 devars, Deba, Mohan and Boga used to quarrel by saying that I

was residing with the brother of my father-in-law. There is nothing else in

Ex.PX. It is in the cross-examination of Ratto PW, mother of the deceased,

that "when Tarsem Lal, husband of the deceased went to Saudi Arabia, she

(deceased) started residing with Chaman Lal (brother of her father-in-law).

"It is correct that my daughter came back to her in-laws house three months

prior to 24.9.1995 on receipt of letter from her husband Tarsem Lal about

his proposed visit to his house. I then told Mohinder Lal, father-in-law to

forgive my daughter of her mistake. I did not file any complaint either

Criminal Appeal No.353-SB of 1998 -16-

before the Panchayat of Rasulpur or Garha against the maltreatment of my

daughter by the accused. It is correct that Chaman Lal's wife had taken the

gold necklace of my daughter. I do not know if anybody was present in the

house of her in-laws when my daughter was done to death." It is correct

that we had not brought the dead body of Kamlesh as we were not in good

financial position. I do not know that my daughter was cremated in her in-

laws' house and her ashes were immersed at Kiratpur. I do not know, if both

the Panchayats supported about the innocence of the accused in this episode

before the police. It is correct that my son-in-law demanded the golden

necklace from Kamlesh lying with Chaman Lal and I also asked Chaman

Lal for return of gold necklace to which he stated that he had no objection to

return the same, if the accused return this amount." Ostensibly, this

evidence fits in with the plea taken by Tarsem Lal appellant. Ex.PX is silent

about the fact that the accused- appellants used to suspect that she had illicit

relations with Chaman Lal and on that account, they used to pick up

quarrels with her. Ratto PW has not specifically denied that the Panchayats

had supported about the innocence of the accused in this episode before the

police. Had the Panchayats not supported the version of the accused-

appellants, she would have been the last person to give answer to such a

material question in an evasive and unambiguous manner. Ratto has not

categorically denied the absence of either appellant in the house of in-laws

of the deceased, when the occurrence took place. It is in the cross-

examination of PW10 SI Harbahajan Singh that "I did not record statement

of any neighbour of the house of the accused regarding the occurrence nor

of any person of Village Garha, where the deceased belonged." He has not

apportioned any reason for not examining any neighbour of the accused.

Criminal Appeal No.353-SB of 1998 -17-

Ratto has also not assigned any reason for not reporting to the Panchayat of

Rasulpur or Garha against the alleged maltreatment being meted out to the

deceased. If the accused- appellants had been subjecting the deceased to

maltreatment or harassment, the deceased or her mother or both would have

certainly complained in this behalf to the police or the Panchayat of the

aforesaid villages. It is in the cross-examination of SI Harbahajan Singh

(sic.) that "Smt. Ratto, mother of the deceased did not give any letter or

document regarding ill-treatment of the deceased by the accused. I did not

record statement of Chaman Lal at whose house, the deceased lived. When

Smt. Kamlesh committed suicide, none of the accused was at home." This

witness has not given any reason for not examining Chaman Lal, which

according to the alleged prosecution version was a bone of contention.

Furthermore, as per his testimony, none of the accused-appellant was

present in the house, when the occurrence took place. If the accused party

had been bent upon to take the life of the deceased, in that, eventuality, her

father-in-law Mohinder Lal DW3, would have not tried to saver her by

himself engulfing in the flames. There is no gain saying the fact that when

he made an endeavour to douse the fire by putting water from the nearby tap

on her, he also sustained injuries and he also removed her primarily to Civil

Hospital, Phillaur and then to DMC & Hospital, Ludhiana. As per Ex. PX,

the accused used to quarrel with the deceased, by saying that she was living

in the house of her husband's father-in-law's brother. She has nowhere stated

that the accused used to maltreat or put her to harassment on the suspicion

that she had illicit relations with Chaman Lal or that she was ever beaten up.

Whatsoever has been stated by Ratto (sic) does not find place in Ex. PX.

Thus, her ocular evidence cannot be believed. If the deceased had

Criminal Appeal No.353-SB of 1998 -18-

committed suicide being fed up with the behaviour of the accused, in all

human probabilities, the dead body would have not been given to them for

cremation. The same would have certainly been cremated by her mother

alongwith other relatives by taking the same to their own village. There

appears to be a substance in the submission of Mr. Gill that the deceased

being ashamed of her own follies committed suicide. The other reason may

be the non-return of neclace by the wife of Chaman Lal or she being unable

to bear the child would have undergone acute mental depression. The

evidence let in by the prosecution too falls short of establishing the offence

under
Section 498-A
of IPC.

In view of the above discussion, neither any dying declaration

nor evidence tendered by Ratto PW can be made the basis for conviction, on

any count. Consequently, this appeal is accepted, setting aside the impugned

judgment. The accused- appellants are acquitted of the charged offence.

March 04, 2009 ( HARBANS LAL )
renu JUDGE

Too often, it is noticed that the Judicial Magistrates, while

recording Dying Declarations, do not follow the guidelines referred to in

this Judgment. Therefore, Registry is directed to send a copy of this

Judgment to all the District & Sessions in Punjab, Haryana and Union

Territory, Chandigarh for circulating the same amongst the Judicial Officers

working in their respective Sessions Divisions.

Whether to be referred to the Reporter? Yes/No