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CASE NO.:

Appeal (crl.) 142 of 2005

PETITIONER:

Ranjit Singh AND Co.

RESPONDENT:

State of Punjab

DATE OF JUDGMENT: 09/11/2006

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

JUDGMENT

ORDER

Five appellants, namely, Rajit Singh, Santokh Singh, Roshan kaur, Vir Kaur

and Bimla Kaur are before us, aggrieved by and dissatisfied with the

judgment and order dated 2.3.2004 passed by the Division Bench of the

Punjab and Haryana High Court in Criminal Appeal No. 282/2000, whereby and

whereunder the judgment of conviction and sentence passed by the Additional

Sessions Judge, Jallandhar On 23.5.2000 in Sessions Case No. 44/1999 was

affirmed.

Appellants before us, together with Dalip Singh, elder brother-in-law of

the deceased as also her husband Hari Singh, were tried for commission of

an offence of murdering Harbhajan Kaur on 21.8.1997 at about 7.30 a.m.

Before we advert to the factual matrix involved in this appeal, we may

notice that whereas the aforementioned Ranjit Singh and Dilip Singh have

since expired, Hari Singh husband of the deceased has been acquitted by the

High Court upon grant of benefit of doubt.

The prosecution case rests on the dying declarations made by the deceased,

the first of which was recorded by Onkar Singh, Investigating Officer on

21.8.1997 at about 11.30 a.m. the said dying declaration was treated to be

the first information report and on the basis thereof investigation

commenced. As we would have to consider the aforesaid dying declaration for

the purpose of appreciation of evidence in this case, we would do better to

take not of the same:

"I am resident of Mithu Basti and am doing domestic work. My husband is

working in a factory. I have two sons named Mohinder Pal and Amar Pal and a

daughter named Rupinder Kaur. Today in the morning I had sent my children

to school after preparing meals. It was about 7-1/2 O' Clock in the

morning. I was setting my clothes in the room then my father-in-law

sprinkled kerosene oil from a stove on me and my mother-in-law Rooshan Kaur

and my sister-in-law Vir Kaur W/o Dilip Singh, Bilma Kaur W/o Santokh

Singh and brother of my husband namely Dalip Singh and Santokh Singh caught

hold of me and mother-in-law Roshan Kaur set me ablaze with a match stick.

My husband at the time had gone to the toilet. All of them with intention

to kill me have set me ablaze after pouring kerosene oil on me. My body was

badly charred. My husband and his aunt (sister of mother -in-law) namely

Pathani brought me to the hospital and got me admitted there. All the above

said persons keeping quarrel with me and they used to pick up quarrel with

me on every lame excuse. I was married in 1984 and since then they had been

harassing me but my husband never harassed me."

It is not in dispute that the dying declaration was also made before Smt.

Preeti Sahni, Judicial Magistrate, 1st Class, Patiala. The said dying

declaration was recorded on 22.8.1997 at about 8.30 a.m. which reads as

under:

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"Yesterday, about 8 A.M. There was a quarrel in our family. Prior

to this also there remained of and tension in our house. Our family

is residing as joint family. Our younger brother and one elder

brother of my husband, father-in-law and mother-in-law also

residing with us. Yesterday, at 8 A.M. In the morning my husband

has a quarrel with me and he asked me to go away and there are many

like you. My in-laws were always harassing me over the matter of

dowry and used to quarrel with me on lame excuse. At that time of

quarrel I asked my husband as to where I have to go to finish the

quarrel I went in the room and started gathering the clothes.

Therefore my mother-in-law Roshan Kaur came and followed my sister-

in-law Bimla Kaur, Vir Kaur (wives of younger and elder brothers of

my husband) also came. My father-in-law Ranjit Singh, younger and

elder brother of my husband also came. My mother-in-law sprinkled

kerosene oil on me. All the men were helping my mother-in-law. Then

my mother-in-law set ablaze with a match stick,. My husband at the

time was sitting in a latrine, what he did not say anthing. He new

everything. Then I did raised alarm of `Bachao, `Bachao', but none

heard me. My children had gone to school at that time. Then on

raising alarm by many people gathered from neighborhood. My

neighborhood informed my parents about this. My parents are

residing in a Basti Nau Jalandhar. My aunt (sister of my mother-in-

law) brought me to hospital. None of my in-laws came here. It is my

mother-in-law who set me ablaze and my husband, father-in-law,

elder and younger brother of my husband and Dalip Singh and Santokh

Singh and their wives and also with them and join this plan and all

of them were present at home. All of them used to harass me over

dowry."

Before proceeding further in the matter we may notice that before the

second dying declaration was recorded, an attempt was made also to record

the dying declaration of the deceased by the Judicial Magistrate on

21.8.1997, but as the condition of the deceased was not such so as to

enable her to make any statement, the same could not be recorded. We may,

at this stage, notice that an oral dying declaration was also made by the

deceased before her brother Harbhajan Singh who examined himself as PW-7.

The defence has examined one Gurmukh Singh (DW-4) to show that a dying

declaration was also made before him by the deceased to the effect that she

got burn injuries from an accident.

The learned Sessions Judge as also the High Court relied fully on the

aforementioned dying declarations to arrive at their respective findings in

their judgments of conviction and sentence as noticed hereinbefore.

Learned counsel appearing on behalf of the appellants, in support of the

appeal, raised the following contentions:

(1) A perusal of the dying declarations, which were recorded by the

Investigating officer and by the Judicial Magistrate, would establish that

she was tutored and in any event there were possibilities of tutoring the

deceased and in that view of the matter the same should not have been

relied upon.

(2) The deceased having all along been under the treatment of Dr. Kuldip

Singh, who examined himself as PW-3, there was absolutely no reason as to

why certificate in regard to the physical and mental condition of the

deceased was obtained from Dr. Rupinder Kaur (Pw-12).

(3) Evidence of Harbhajan Singh (PW-7) is not at all reliable in so far as

he had improved his story of introducing the purported harassment meted out

to the deceased for non-fulfilment of the demand of dowry which was not

even stated by the deceased in her dying declaration.

(4) PW-7 was inimically disposed towards one of the accused, as he had

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taken a loan of Rs. 35.000 from him.

(5) The investigation carried out by the Investigation Officer was not a

fair one inasmuch as he merely recovered a stove from the place of

occurrence but failed to take any photograph of the place of occurrence,

failed to seize any burnt pieces of clothes and also failed to record the

statements of the neighbourers as also Gurmukh Singh (DW-4).

(6) The learned Sessions Judge although was of the opinion that the second

dying declaration was not truthful, but despite the same, wrongly proceeded

to rely upon the first dying declaration to convict and sentence the

appellants before us. In this connection our attention has also been drawn

to the judgment of the High Court wherein, despite noticing the

inconsistencies in the two dying declarations, the High Court opined that

the conviction of the appellants would be permissible in law as their

involvement in the occurrence is proved.

The learned counsel appearing for the State, on the other hand, supported

the judgment.

The deceased was running a shop. It is also not in dispute that there used

to be frequent quarrels between the husband and wife. On more than one

occasion, the disputes and differences between the deceased and her husband

were settled through the intervention of the Panchayat. In fact, on one

such occasion a compromise was recorded by the said Panchayat which was

marked as Ext. DL.

We may furthermore notice that, indisputably, at the time the occurrence

took place, the husband was in the latrine. The grievance of the deceased

as against her husband appears to be that despite calling, he did not come

at the spot. It however, appears from her first dying declaration that she

was taken to the hospital by her husband and his aunt, namely, Pathani -

sister of the mother-in-law of the deceased.

The prosecution case must be judged in the aforementioned factual backdrop.

It is solely based on the dying declaration of the deceased. Corroboration

thereto, if any, can be sought from the fact that it was established that

they had been quarreling on earlier occasions also. In both her dying

declaration, the genesis of the occurrence is stated to be the same,

however the mode and the manner in which the same was done as also the role

played by the appellants and her father-in-law Ranjit Singh, are somewhat

inconsistent.

Learned counsel for the appellants, as noticed hereinbefore, laid emphasis

on the fact that keeping in view the said inconsistencies in the dying

declarations, this Court should not at all rely thereupon.

It is now well settled that conviction can be recorded on the basis of a

dying declaration alone, if the same is wholly reliable, but in the event

there exists any suspicion as regards correctness or otherwise of the said

dying declaration, the Courts in arriving at the judgment of conviction

shall look for some corroborating evidence. It is also well known that in a

case where inconsistencies in the dying declarations, in relation to the

active role played by one or the other accused persons, exist, the court

shall lean more towards the first dying declaration than the second one.

We, however, are not in a position to persuade ourselves to accept the

submissions of the learned counsel for the appellants that we should not

accept any of the dying declarations at all or any part thereof.

The submissions of the learned counsel for the appellants to the effect

that PW-3 being the attending physician, there was no reason for her to

grant any certificate, cannot be accepted. She deposed on the basis of the

bed-head ticket. Even in the bed-head ticket, it was stated at the time

when the second dying declaration was recorded by the learned Judicial

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Magistrate, and endorsement had been made by Dr. K.K. Chahar that when the

Magistrate recorded the statements of the patient she had been in a fit

medical condition. Only because she treated the deceased all along, the

same would not mean that she would examine the patients in the hospital

throughout the day and night.

PW-12 Dr. Rupinder Kaur is also a responsible doctor. In her deposition she

has stated that when the doctor examined the deceased, she was fully

conscious and though she was having pain she was fit to make the statement.

It was sought to be argued that the said doctor did not issue any

certificate of recording of dying declaration in the beginning but it was

not necessary. The statement of the deceased was taken only when the

learned Magistrate as also the attending doctor satisfied themselves about

her condition to make statement. Mrs. Preeti Sahni, Judicial Magistrate,

1st Class, Patiala, who examined herself as PW-1, made a categorical

statement that before her statement was recorded she had put questions to

her in order to ascertain whether she was capable of understanding the same

and was in aposition to make statement voluntarily. It is of some

significance to note that the Investigating Officer, Executive Magistrate

as also the doctors were taking extreme care in that behalf as is evident

from the fact that although after recording the first information report,

an endeavor was made on 21.8.1997 to get the statement of the deceased

recorded by the Executive magistrate but as she was not found to be in a

fit condition to make statement, the same was not recorded. It is therefore

not correct to suggest that the judicial magistrate recorded the statement

of the deceased although she was not in a fit condition to make the

statement.

We may, at this juncture, notice the discrepancies, which were considered

by both the learned Trial Judge as also the High Court. Whereas the

deceased in her first dying declaration ascribed the role of her father-in-

law as pouring kerosene on her and the role of ablaze by a match stick to

her mother-in-law, but in her statement before the learned Judicial

Magistrate, she stated that the mother-in-law sprinkled kerosene on her and

then she set ablazing her with a match stick. It is, therefore, evident

that the role of Roshan Kaur (mother-in-law) in lighting the match stick is

consistent.

We, however, are not in a position to accept the statement of the deceased

as regards the roles played by the other accused persons, namely, the

brother-in-laws of the deceased and their respective wives.

The role ascribed to Vir Kaur, wife of Dalip singh (since deceased), and

Bimla Kaur wife of Santokh Singh, together with their husbands is that they

had allegedly caught hold of her.

Whereas in the second dying declaration, the deceased alleged that while

after quarreling with her husband, she wanted to leave the house and for

that purpose she started gathering clothes, her father-in-law came,

followed by her sister-in-law Bimla Kaur. Ranjit Singh, her father-in-law

and brothers of her husband, namely, Dalip Singh and Santokh Singh, had

also come there. According to her, all the men were helping her mother-in-

law and at that point of time her mother-in-law set her ablaze with a match

stick. The inconsistency in the roles ascribed to her brother-in-law and

sisters-in-law is, therefore, evident.. In her first dying declaration, the

role of catching hold of her was ascribed to all of them, other than the

mother-in-law; but in the second statement it was ascribed only to the men,

namely her brothers-in-law alone.

We are, therefore of the opinion that in a case of this nature, the rule of

caution should be applied and therefore benefit of doubt should be given to

appellant Nos. 2, 4 and 5, namely, Santokh Singh, Vir Kaur w/o Dalip Singh

and Bimla Kaur w/o Santokh Singh, respectively.

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As for the purpose of arriving at the aforementioned conclusion, we have

not taken into consideration the purported oral dying declaration made by

the deceased before PW-7, we do not think it necessary to discuss his

evidence. We may, however, observe that the statement of Gurmukh Singh

(DW-4), has rightly been disbelieved by the learned Sessions Judge as also

by the High Court. There was also no reason as to why any statement shall

be made before him by the deceased. If his statement was correct then it

was expected that he would also come to the hospital. It was furthermore

expected that he would get his statement recorded by the Investigating

Officer. It is to much to contend that he gave his statement before the

Investigating Officer but the same had not been recorded. Not even such

suggestion was made to PW-13, although a lot of suggestions have been

thrown at him as regards his conducting one-sided investigation.

The submission of the learned counsel for the appellants, that the

investigation is faulty, is not a matter, which, in our considered opinion,

is of any importance. The first information report was based on the dying

declaration. The evidence of the accused was that she caught fire

accidentally. The learned Sessions Judge as also the High Court has

considered the matter at great length. Whether the deceased received burn

injuries accidentally or otherwise may be a matter in issue but that she

received burn injuries is not and issue. It was, therefore, not necessary

to take photographs or seize the alleged pieces of burnt clothes. In any

view of the matter, the same has not caused any prejudice to the

appellants.

For the reasons aforementioned the appeal of Roshan Kaur, appellant No.-3,

is dismissed and the appeal filed by appellant No.2 - Santokh Singh,

appellant No.4 - Vir Kaur and appellant No.5 - Bimla Kaur, is allowed.

Appellant No. 3 - Roshan Kaur is directed to surrender and she be taken

into custody immediately. Appellant Nos.2, 4 and 5 are on bail. They are

discharged from their bail bonds.