Full Judgment Text
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CASE NO.:
Appeal (crl.) 957 of 2005
PETITIONER:
Balbir Singh & Anr
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 26/09/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Appellant No.1 was married to Amarjit Kaur (deceased). She had
been complaining of ill-treatment at the hands of her in laws. The dispute
between the deceased on the one hand and Appellants on the other was
resolved by Panchayat. As despite the same, ill-treatment continued, an
application was filed before the Senior Superintendent of Police by the
deceased. Appellant No.1 was working as Sepoy in the Indian Army. He
took leave for two months. A settlement was effected whereby Appellants
were made responsible for any untoward incident that might happen to the
deceased. She in view of the said settlement came to her matrimonial home.
On 12.10.1995, she received 90% burn injuries. She was taken to a
hospital. Although she was in her senses, having regard to the extent of burn
injuries suffered by her, the doctors attending on her opined that her
dying declaration should be taken. Her dying declaration was taken
down by one Dr. Anoop Kumar in presence of other doctors including
Dr. R.S. Kadiyan, Professor of Skin and VD Department, Christian
Medical College, Ludhiana. The said dying declaration, marked as Ex. P-
1, which was recorded at about 08.30 A.M. on 12.10.1995, reads as
under :
"Pt. Amarjit Kaur w/o Balbir Singh, unit No.C-
180136 aged 24 years, married for three years as stated
by patient herself in presence of Dr. R.S. Kadyan (Addl.
Deputy Medical Superintendent), Dr. Tejinder Singh
(DCMO, CMCH Ludhiana. Pt. was brought to Casualty
Deptt. Of CMCH Ludhiana at 830 a.m. on 12.10.95 by
neighbours along with husband who was forced by the
neighbours to accompany them as stated by the Pt.
According to patient she was conflict with her husband
and mother in law for whole night yesterday at 4.00 a.m.
in the morning when she went for urination, her husband
approached from behind and threw kerosene oil and
ignited her and locked the door from outside. She cried
and was rescued by neighbours and brought to the
hospital. Patient was referred from Civil Hospital,
Malerkotla."
Her parents in the meanwhile were also informed. They came to the
hospital. The First Information Report was lodged at about 09.30 a.m. on
the same day; whereupon a case under Sections 307/498-A of the Indian
Penal Code was registered. The Investigating Officer came to the hospital
and recorded a second dying declaration which was marked Ex.P-J. In the
said dying declaration she not only named her husband but also her mother-
in-law, inter alia, stating :
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"\005But dispute continued as usual. Today at about 5
A.M., when I got up for urinating (sic for urination) and
went inside the bath room constructed in the house. Then
with an intention to kill me and as a part of their
conspiracy, my husband Fauji Balbir Singh and mother-
in-law Nachattar Kaur set me on fire after pouring
kerosene, due to which I was badly burnt. I raised an
alarm saying ’Bachao Bachao’ (Save-Save) and both of
them ran away. My father-in-law Joga Singh with an
intention to save me, first took me to Malerkotla Hospital
in a Taxi from where I was referred to Patiala by the
doctor due to extensive burns, but my father-in-law took
me to CMC Ludhiana. Where I am lying on death bed.
Action may be taken."
The said dying declaration bore her signature. She died on
16.10.1995 at about 01.15 a.m., whereupon a case under Section 302 IPC
was registered. During trial the learned Sessions Judge framed charges
under Section 302 IPC read with Section 34 thereof or in the alternative
under Section 304-B read with Section 304-B read with Section 34 IPC.
Appellants were also charged under Section 498-A read with Section 34
IPC. The charges framed by the learned Sessions Judge read as under :
"That on 12.10.1995 at about 5.00 A.M. within the
revenue limits of village Bhurthala Mander, in
furtherance of the common intention of both of you, you
Balbir Singh and Nachhatar Singh intentionally caused
the death of Amarjuit Kaur daughter of Ram Kishan
Singh and that by you both committed an offence
punishable under Section 302 read with Section 34 IPC
or in the alternative under Section 304-B read with
Section 34 IPC and within the cognizance of this Court.
Secondly during the period from 1993 to 1995 in
furtherance of the common intention of you both, you
Balbir Singh and Nachhatar Kaur committed cruelty on
aforesaid Amarjit Kaur d/o Ram Kishan Singh with a
view coercing her to meet the unlawful demand of dowry
and thereby you both committed an offence punishable
under Section 498-A r.w. 34 of Indian Penal code and
within the cognizance of this Court.
And I hereby direct that you both be tried by this
Court for the aforesaid offences."
No plea was taken in regard to the alleged defect in framing of the
charges by Appellants at any stage. No prejudice was ever pleaded by the
accused. The learned Sessions Judge convicted the Appellants both under
Section 302 IPC as also under Section 498-A thereof and sentenced them to
undergo rigorous imprisonment for life under Section 302 read with Section
34 IPC and to pay a fine of Rs.2,000/- each and in default of fine to undergo
rigorous imprisonment for six months. They were also sentenced to undergo
rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each
and in default of fine to undergo rigorous imprisonment for three months
under Section 498-A IPC.
The appeal preferred by Appellants before the High Court has been
dismissed by the impugned judgment.
Mr. Prem Malhotra, the learned counsel appearing on behalf of
Appellants, in support of the appeal raised the following contentions :
(i) That the charges framed against the Appellants being illegal, the
impugned judgment of conviction and sentence cannot be sustained;
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(ii) As there are inconsistencies and contradictions between the two
purported dying declarations, Ex.P-1 and P-J, no reliance should be placed
thereupon;
(iii) The deceased having suffered extensive burn injuries, she could
not have been in a fit condition to give the said dying declarations;
(iv) In any event, there is nothing to show that she was in a position
to put her signature on the second dying declaration;
(v) There was no reason as to why the Magistrate had not been sent
for to record her dying declaration as the deceased expired after four days of
sufferance of the burn injuries.
The learned counsel appearing on behalf of the State, on the other
hand, urged that :
(i) The prosecution case must be considered keeping in view the
disputes of the parties.
(ii) As the occurrence having taken place in the bathroom, it was
urged, it is wholly unlikely that the deceased committed suicide.
(iii) Although in the first dying declaration, the name of Appellant
No.2 was not disclosed, the same may be ignored in view of the fact that she
was named specifically in the second dying declaration.
(iv) There is nothing on record to show that the deceased was not in a
position to put her signature on the dying declaration.
Where a death takes place within the four walls of a room, the
prosecution ordinarily would not be able to examine any eye-witness. A
case of this nature, thus, must be judged having regard to the entirety of the
circumstances which have been brought on record by the prosecution.
Dr. S.S. Kokhar, (PW-3), Senior Medical Officer, Civil Hospital
Malerkotla, stated that the deceased was brought at the Emergency Ward
with 70% burn over the body. Dr. K.C. Goyal sent the information about the
incident to the police. He further stated that the patient was referred to a
"higher institution".
Dr. R.S. Kadiyan (PW-12) witnessed recording of the statement of
Amarjit Kaur by Dr. Anoop Kumar. He found her to be in her senses. He
proved the dying declaration. He also stated that Dr. Tejinder Singh and Dr.
Ashish Gupta were also present. The witness stated that although they
thought of calling for some Magistrate for recording her statement but
having regard to serious condition of the patient and as the time therefor
was short, it was decided not to wait therefor.
PW-13 is Dr. Anoop Kumar, who had recorded the dying declaration.
In his deposition, he categorically stated :
"\005Amarjit Kaur was admitted in the hospital at about
8.30 a.m. on 12.10.95. I suspected that Amarjit Kaur
can succumb to the burn injuries when I first saw her. I
did not send the information to police about my suspicion
that she may die of burn injuries. I did not send for any
Magistrate to come and record her statement. I gave the
information to my superiors on telephone. The
Additional Deputy Superintendent reached in the
emergency within about five minutes. It was not
suggested to me by Medical Superintendent who came
that I should send the request to the police or to the
Magistrate for recording statement of Amarjit Kaur\005"
As regards the reason for not taking either thumb impression or
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signature of the deceased on the dying declaration, he stated :
"\005Statement of Ex. PP is not thumb marked or signed
by the lady but she was having burns on all over the body
including palms of the hand. There is no burn injury on
the toes of the feet of the deceased. I did not obtain the
impressions of toes of the patient because I was not
aware that this can be done. I do not remember if the
thumb of the finger toes were partly or totally burnt.
When patient was brought in the hospital she was given
in tera benus fluids. I did not do that the bandage of the
wounds. I do not remember if the hands of the lady were
having the bandage when I recorded her statement. It
took about ten or fifteen in recording the statement of
Amarjit Kaur."
We would consider the effect of the said statement a little later.
It may be true, as was contended, that Dr. Ashish Gupta was not
examined but it is borne out from the records that he at the material time,
had gone abroad.
Keeping in view the statements of Dr. R.S. Kadiyan and Dr. Anoop
Kumar, in our opinion, it was also not necessary to examine Dr. Ashish
Gupta. The second dying declaration was recorded by Sub Inspector
Tejinder Singh (PW-10). When the second dying declaration was being
recorded, he had obtained the opinion of the doctor that the deceased was fit
to make her statement.
Contention of Mr. Malhotra that the Magistrate was not called to
record such statement may have any substance but the same by itself cannot
be a ground to reject the whole prosecution case.
It is not in dispute that the deceased suffered extensive burn injuries.
She had burn injuries almost on her whole body. This is evident from the
post mortem report as was proved by Dr. U.S. Sood.
We have seen the signature of the deceased in the original of Ex.P-Z
which shows that the same was put with great difficulties. It is also not the
case of the Appellants that she could not write her name in English. No
suggestion was also put to the Investigating Officer that the signature
appearing on the second dying declaration was not of the deceased.
The law does not provide that a dying declaration should be made in
any prescribed manner or in the form of questions and answers. Only
because a dying declaration was not recorded by a Magistrate, the same by
itself, in our view, may not be a ground to disbelieve the entire prosecution
case. When a statement of an injured is recorded, in the event of her death,
the same may also be treated to be a First Information Report.
Dying declaration, however, must be voluntary. It should not be
tutored. It is admissible in evidence in special circumstances. But it must be
borne in mind that its admissibility is statutorily recognized in terms of
Section 32 of the Indian Evidence Act.
The effect of the statement being not recorded before a Magistrate
would depend upon the facts and circumstances of each case and no hard
and fast rule can be laid down therefor.
If, however, wholly inconsistent or contradictory statements are made
or if it appears from the records that the dying declaration is not reliable, a
question may arise as to why the Magistrate was not called for, but
ordinarily the same may not be insisted upon.
Kamla (Smt.) v. State of Punjab [(1993) 1 SCC 1], relied upon by Mr.
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Malhotra, falls in the above category. In that case four dying declarations
were made, and one could not be reconciled with the other. In the aforesaid
fact situation, it was held :
"If we examine all these dying declarations one by
one we notice glaring inconsistencies as to who exactly
poured kerosene and set fire or whether she caught fire
accidentally. Suicide however is ruled out. In Ex. PB/2
recorded by PW 2 the deceased stated that her mother-in-
law sprinkled kerosene from behind and burnt her. In the
next statement Ex. DA recorded by Dr Jaison Chopra,
CW 1, she is alleged to have stated that her clothes got
burnt catching fire from the stove, thereby indicating that
it was an accident. In the third statement Ex. PJ recorded
by CW 2 she was rather vague as to who exactly poured
kerosene and set fire on her and she only stated that it
could be possible that her mother-in-law and father-in-
law might have set the fire after pouring kerosene. On
September 30, 1979 Ex. PD was recorded in the presence
of three doctors, PW 7, PW 3 and CW 1 wherein she
stated that she turned to the store and she heard her
mother-in-law and father-in-law talking behind her and
suddenly they poured kerosene and they set her on
fire\005"
However, in State of Karnataka v. Shariff [(2003) 2 SCC 473], this
Court categorically held that there was no requirement of law that a dying
declaration must necessarily be made before a Magistrate. This Court
therein noted its earlier decision in Ram Bihari Yadav v. State of Biha and
Others [(1998) 4 SCC 517], wherein it was also held that the dying
declaration need not be in the form of questions and answers. [See also
Laxman v. State of Maharashtra (2002) 6 SCC 710]
There is, however, no escape from the fact that in the first dying
declaration, Appellant No. 2 was not named. The fact that she was brought
in a burnt condition is not in dispute. She had exonerated her father-in-law.
According to her, she was brought in the hospital by her father-in-law. The
records, however, suggested that she was admitted by her husband.
Presumably both were present.
We have earlier noticed that her husband was forced to bring her to
the hospital by the neighbours. His culpability has categorically been stated
by the deceased in both the dying declarations.
She had categorically stated that her husband had put kerosene oil
upon her and upon igniting, locked the door of the bathroom from outside.
She was rescued by the neigbours. A case of suicide, therefore, must
necessarily be ruled out. She was first taken to the Civil Hospital and then
to the Christian Medical College, Ludhiana.
We may place on record our appreciation as to the role played by the
doctors and the concern shown by them. In view of the manner in which she
made her statement before the doctor, in our opinion, it is difficult to hold
that her first statement was not voluntary or was tutored. For arriving at the
said finding, the time factor is also significant.
In Jai Karan v. State of Delhi (NCT) [(1999) 8 SCC 161], it was
held :
"A dying declaration is admissible in evidence on
the principle of necessity and can form the basis for
conviction if it is found to be reliable. While it is in the
nature of an exception to the general rule forbidding
hearsay evidence, it is admitted on the premiss that
ordinarily a dying person will not falsely implicate an
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innocent person in the commission of a serious crime. It
is this premiss which is considered strong enough to set
off the need that the maker of the statement should state
so on oath and be cross-examined by the person who is
sought to be implicated. In order that a dying
declaration may form the sole basis for conviction
without the need for independent corroboration it must
be shown that the person making it had the opportunity
of identifying the person implicated and is thoroughly
reliable and free from blemish. If, in the facts and
circumstances of the case, it is found that the maker of
the statement was in a fit state of mind and had
voluntarily made the statement on the basis of personal
knowledge without being influenced by others and the
court on a strict scrutiny finds it to be reliable, there is
no rule of law or even of prudence that such a reliable
piece of evidence cannot be acted upon unless it is
corroborated. A dying declaration is an independent
piece of evidence like any other piece of evidence \027
neither extra strong nor weak \027 and can be acted upon
without corroboration if it is found to be otherwise true
and reliable\005"
In State of Maharashtra v. Sanjay S/o Digambarrao Rajhans [(2004)
13 SCC 314], it was observed :
"\005It is not the plurality of the dying declarations that
adds weight to the prosecution case, but their qualitative
worth is what matters. It has been repeatedly pointed out
that the dying declaration should be of such nature as to
inspire full confidence of the court in its truthfulness and
correctness (vide the observations of a five-Judge Bench
in Laxman v. State of Maharashtra). Inasmuch as the
correctness of dying declaration cannot be tested by
cross-examination of its maker, "greater caution must be
exercised in considering the weight to be given to this
dying declaration genuinely recorded, they must be tested
on the touchstone of consistency and probabilities. They
must also be tested in the light of other evidence on
record. Adopting such approach, we are unable to place
implicit reliance on the dying declarations, especially
when the High Court felt it unsafe to act on them\005"
Yet again in Muthu Kutty and Another v. State by Inspector of
Police, T.N. [(2005) 9 SCC 113], while summarizing the law, this Court,
inter alia, stated :
"(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time
must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable,
it has to be accepted. (See Mohanlal Gangaram Gehani
v. State of Maharashtra)"
The backdrop of the events is not much in dispute. The dispute
between the deceased and the family of the Appellant is borne out from a
DDR (Ex.PO) recorded on 21.08.1995, wherein it was recorded that because
of a dispute she had gone to her parents’ house and that as a result of the
compromise, ’the grievances had been removed and the accused Balbir
Singh and his family would be responsible for any loss to the lady’. It is
also substantiated by the testimonies of Ram Kishan (PW-6), father of the
deceased, Gurdev Kaur (PW-7), mother of the deceased, Ajaib Singh (PW-
8), and Sarup Singh (PW-9) relatives of the deceased, who had categorically
deposed stating how the deceased received maltreatment at the hands of
Appellants on account of non-fulfillment of their demand of dowry. The
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deliberations which had taken place in the Panchayat had also been proved
by Ajaib Singh (PW-8) and Sarup Singh (PW-9).
Although we have been taken through the depositions of the said
witnesses, nothing has been pointed out to discard their testimonies.
We, in view of the order proposed to be passed by us, do not intend to
delve into the testimony of Sub Inspector, Tejinder Singh (PW-10) as
regards recording of the second dying declaration.
We are of the opinion that whereas the findings of the learned
Sessions Judge as also the High Court in regard to guilt of Appellant No.1
must be accepted, keeping in view the inconsistencies between the two
dying declarations, benefit of doubt should be given to Appellant No.2. We,
however, uphold the conviction and sentence of both the Appellants under
Section 498-A IPC.
This leaves us the alternative question as to whether framing of charge
was permissible in law. The said question has not been raised even in the
special leave petition. No such point was also taken before the learned Trial
Judge or the High Court. Appellants have not shown any prejudice even in
their statements under Section 313 of the Code of Criminal Procedure.
Strong reliance, in this connection, has been placed by Mr. Malhotra
on Soni Devrajbhai Babubhai v. State of Gujarat and Others [(1991) 4 SCC
298]. The question which arose therein was the applicability of Section 304-
B IPC, where the death had occurred prior to insertion of the said provision
in the statute book. The question, therefore, which arose for consideration
therein, was as to whether conviction under Section 304-B of the Indian
Penal Code would be violative of clause (1) of Article 20 of the Constitution
of India. It was in the aforementioned fact situation, the contention of
Respondent therein that Appellant should be punished under Section 304-B
IPC was rejected.
In Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC
577], the question which arose for consideration of this Court was as to
whether in a case where the only charge framed against the accused was
under Section 302 IPC, he ccould be convicted under Section 304-B thereof.
In holding that the same would be impermissible, it was stated :
"Now take the case of an accused who was called
upon to defend only a charge under Section 302 IPC. The
burden of proof never shifts on to him. It ever remains on
the prosecution which has to prove the charge beyond all
reasonable doubt. The said traditional legal concept
remains unchanged even now. In such a case the accused
can wait till the prosecution evidence is over and then to
show that the prosecution has failed to make out the said
offence against him. No compulsory presumption would
go to the assistance of the prosecution in such a situation.
If that be so, when an accused has no notice of the
offence under Section 304-B IPC, as he was defending a
charge under Section 302 IPC alone, would it not lead to
a grave miscarriage of justice when he is alternatively
convicted under Section 304-B IPC and sentenced to the
serious punishment prescribed thereunder, which
mandates a minimum sentence of imprisonment for seven
years.
The serious consequence which may ensue to the
accused in such a situation can be limned through an
illustration: If a bride was murdered within seven years
of her marriage and there was evidence to show that
either on the previous day or a couple of days earlier she
was subjected to harassment by her husband with
demand for dowry, such husband would be guilty of the
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offence on the language of Section 304-B IPC read with
Section 113-B of the Evidence Act. But if the murder of
his wife was actually committed either by a dacoit or by a
militant in a terrorist act the husband can lead evidence to
show that he had no hand in her death at all. If he
succeeds in discharging the burden of proof he is not
liable to be convicted under Section 304-B IPC. But if
the husband is charged only under Section 302 IPC he
has no burden to prove that his wife was murdered like
that as he can have his traditional defence that the
prosecution has failed to prove the charge of murder
against him and claim an order of acquittal."
The said decision has also no application in the instant case. As the
Appellants had the requisite knowledge of the charges against them, it may
or may not be justifiable for the learned Trial Judge to frame an alternative
charge, but from what we have noticed hereinbefore evidently they were not
prejudiced in any manner whatsoever.
Effect of framing of alternative charges vary from case to case. In the
peculiar facts of present case, we are of the opinion that Appellants having
not raised any grievance at any stage in that behalf, they cannot be allowed
to do so at this stage.
For the aforementioned reasons, we are of the opinion that there is no
merit in the appeal of Appellant No.1 which is dismissed. The conviction
and sentence of Appellant No.2 under Section 302 read with Section 34 IPC,
however, is set aside. However, conviction and sentence of the Appellants
under Section 498-A is upheld. Appellant No.2 is said to be in custody for
four years. She would, therefore, be released forthwith. The appeal is
allowed in part and to the extent mentioned hereinbefore.