Judgment:
CRA-D-258-DB-2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D-258-DB-2009 Date of decision: May 2, 2014 Sulakhan Singh and another ... Appellants Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE JASPAL SINGH Present: Mr. Ashok Saini, Advocate for the appellant. Ms. Manjri Nehru Kaul, Addl. A.G. Punjab for the respondent-State. Jaspal Singh, J.
1. Appellants have preferred this appeal challenging the judgment dated February 12, 2009 passed by Sessions Judge, Gurdaspur, whereby they have been convicted under Section 302/34 of the Indian Penal Code (for short “IPC”.) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10000/- each. In default of payment of fine, the defaulter to further undergo RI for six months.
2. Briefly stated the facts are that Sarabjit Kaur (since deceased) was married to Sulkhan Singh. Out of the said wedlock, Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -2- they were blessed with two sons, named Jobanpreet Singh and Robinpreet Singh. A clash took place between Sarabjit Kaur and her husband about six months prior to the occurrence. As a result thereof, Sarabjit Kaur was turned out of her matrimonial home. She stayed at her parental home for about two months. A compromise was effected in pursuance of which, she returned to her matrimonial home. She used to engage herself in embroidery. Prior to the instant occurrence, she purchased bed sheets and one of the sheets was given by her to Smt. Rani, her neighbour, for embroidery. Gurcharan Kaur her mother-in-law felt annoyed and incited/provoked her husband against her. Whereupon, she was subjected to severe beatings by him. At that time, he also used foul language against her. On August 16, 2006 at about 9:00 p.m, her husband Sulakhan Singh, mother-in-law Gurcharan Kaur, elder brother of her husband Makhan Singh and Balwinder Kaur wife of Makhan Singh, after taking meals assembled at her house. Her husband called her to his room and started beating her. In the meanwhile, Balwinder Kaur and Makhan Singh also came there. They caught hold of her from her arms. Gurcharan Kaur also arrived there with a small bottle of kerosene. She sprinkled kerosene on her body and clothes and Sulkhan Singh brought a match box and put her on fire. When she was fully engulfed by fire, all the aforesaid persons made good their escape. To save herself, she came out of the room and to put off the fire, lay down and rolled on the ground. The fire was put off but by then, her body had received extensive burns. Her clothes were totally burnt. She continued crying with pain the whole night but no body took her Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -3- to the hospital. On the next morning, Sulkhan Singh her husband took her to Bhatia Hospital, Qadian. On having come to know about the incident, her father Surjit Singh accompanied by her mother and some relatives reached Bhatia Hospital, Qadian. Thereafter, she was shifted to Civil Hospital, Batala in view of her serious condition.
3. On receipt of an information about the admission of Sarabjit Kaur with burn injuries in Civil Hospital, Batala, S.I. Suba Singh accompanied by some other police officials visited the hospital. He moved an application to the concerned medical officer seeking opinion whether the injured is fit to make a statement. She was opined to be fit to make a statement. The Investigating Officer recorded her statement wherein she narrated the entire sequence of events as stated above. She also specifically stated that Sulakhan Singh her husband, mother-in-law Gurcharan Kaur, elder brother of her husband, Makhan Singh and Balwinder Kaur wife of Makhan Singh had attempted to kill her in furtherance of their common intention by putting her on a fire after sprinkling kerosene on her body. The investigating Officer read over and explained the statement to Sarabjit Kaur who admitted it to be correct and in token of its correctness, appended her right thumb impression on it. The Investigating Officer made an endorsement and forwarded the statement to the police station through HC Jagdish Singh. On the basis of this statement, formal First Information Report was recorded by ASI Sharam Singh, under Section 307/34 IPC. Thereafter, she was shifted to DMC and Hospital, Ludhiana.
4. Thakral Rajeev Investigating officer visited the place of occurrence but 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -4- found the house locked. On August 30, 2006, on receipt of a wireless message from DMC and Hospital, Ludhiana to the effect that Sarabjit Kaur had died, Investigating Officer recorded a D.D.R and enhanced the offence from Section 307 to Section 302 of the IPC. He also reached Dayanand Medical College and Hospital, Ludhiana, carried out inquest proceedings in respect of the dead body which was identified by Nirmal Singh and Davinder Singh. He also moved a request for autopsy and sent the dead body to Civil Hospital, Batala, for post mortem examination. Thereafter, he handed over the dead body to relatives of the deceased.
5. On September 16, 2006 when the Investigating Officer was going to raid the house of the accused and reached near Government High School, Bahadurpur Rajoya, Amarjit Singh, Ex- Captain met him and produced Sulakhan Singh-accused before him, who was arrested. He was taken to the place of occurrence, site plan with correct marginal notes was prepared, a kerosene bottle and a match box were recovered. On return to the police station, he deposited the case property with the MHC. On 26.10.2006, Gurcharan Kaur was arrested by S.I. Suba Singh when she was produced before him by Kuldip Singh.
6. After completion of the investigation, final report under Section 173 Cr.P.C. was filed in the Court of learned jurisdictional Magistrate who committed the same under Section 209 Cr.P.C. after having complied with the provisions contained in Section 207 Cr.P.C vide order dated January 10, 2007.
7. Thakral Rajeev Finding a prima facie case from the contents of report 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -5- filed under Section 173 (2) Cr.P.C. as well as documents annexed with it, learned Sessions Judge, Gurdaspur, charge-sheeted the accused to face trial under Sections 302 with the aid of Section 34 IPC. Accused-Appellants did not plead guilty to the charge and opted to contest and face trial.
8. In order to substantiate the charge, prosecution examined as many as six witnesses. PW-1 C. Jasbir Singh submitted his sworn affidavit Ex.PA, who handed over special reports to the learned Illaqa Magistrate as well as police officers.
9. PW-2 Dr. Lakhbir Singh conducted the autopsy on August 30, 2006 and found the following injuries on the dead body of Sarabjit Kaur:
“1. A burn area measuring 28 x 43 cms was present on the anterior abdomen wall both above and below the umblicus. Sloughing and pus was present in the wound. Granulation tissue and scabbing of wound was also present. Wound was mostly 2nd and 3rd degree.
2. Superficial and deep burn was present on the anterior aspect of both upper limbs. Sparing both hands and extending upto the elbow joint. Slughing and puss was present. Scab Formation had occurred at places.
3. A burn area involving whole of both legs (frong and back with area of pus formation and slughing was present. Burn was 2nd and 3rd degree. Peritonium of abdomenal wall was burnt and blackened and pus formation was present. All other organs were healthy. Rigour mortis and post mortem staining was present. Probable duration between injury and death was about two weeks and between death and post mortem examination within 24 years.”. 10. The cause of death in this case was opined by him due to septicaemia as a result of burns which were ante mortem in nature Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -6- and sufficient to cause death in an ordinary course of nature. He also proved the copy of post mortem report Ex.PB.
11. PW-3 Janak Singh Dhanjal, Draftsman prepared scaled site plan of the place of occurrence Ex.PW-3/A while visiting at the spot on September 24, 2006.
12. PW-4 Dr. Sanjiv Uppal while posted as DMC Hospital, Ludhina, admitted Sarabjit Kaur with burn injuries on August 27, 2008 treated her conservatively. He has proved the copy of the Bed-Head- Ticket Ex.PD. Apart from it, he also deposed that vide certificate Ex.PE, Sarabjit Kaur declared dead on 9:20 p.m. on August 29, 2006.
13. PW-5 Dr. Sukhdeep Singh declared Sarabjit Kaur fit to make statement vide endorsement Ex.PG on the basis of an application Ex.PF, moved by the police seeking his opinion with regard to the fitness of Sarabjit Kaur to make statement.
14. PW-6 SI Suba Singh conducted the investigation of this case. On receipt of an information with regard to the admission of Sarabjit Kaur with burn injuries in Civil Hospital, Batala, he visited there and moved an application Ex.PF seeking opinion of the concerned medical officer with regard to the fitness of Sarabjit Kaur to make statement, when she was declared fit to make statement vide endorsement Ex.PG, her statement Ex.PH was recorded by him. The contents whereof were read over and explained by him to Sarabjit Kaur and in token of its correctness, she appended her right thumb impression. Her statement was sent to Police Station Shri Hargobindpur, on the basis of which, formal FIR Ex.PH/2 was Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -7- recorded by ASI Sharam Singh. He also visited the house of the accused-appellants but it was found locked. On August 30, 2006, on receipt of a wireless message from DMC Hospital, Ludhiana, intimating death of Sarabjit Kaur, he visited DMC Hospital, Ludhiana and prepared inquest report Ex.PK. The dead body was identified by Nirmal Singh and Davinder Singh PWs. He also moved request Ex.PC for getting conducted autopsy through HC Balwinder Singh and C. Sukhdev Singh. During investigation of this case, he also visited the place of occurrence; prepared its rough site plan Ex.PL; recovered a kerosene bottle; a match box and an earthern lamp vide memo Ex.PM attested by HC Sarwan Singh. He also arrested Sulkhan Singh as well as Gurcharan Kaur. He also prepared and presented the challan in the Court of learned Jurisdictional Magistrate. Thereafter, prosecution closed its evidence.
15. When the incriminating circumstances appearing in prosecution evidence were put to the accused by the trial Court for eliciting their explanation as provided under Section 313 Cr.P.C., they denied them and pleaded innocence. The defence plea taken by them is that in fact, Sarabjit Kaur caught fire from a kerosene lamp accidentally lying on the refrigerator. They adduced evidence in defence and examined DW-1 Surjit Singh, father of the deceased and DW-2 Rajinder Singh Lambardar and closed defence evidence.
16. After hearing learned counsel for the parties and appraisal of the evidence, both the appellants were convicted and sentenced as fully reflected in para No.1 of this judgment. Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -8- 17. Disheartened with their conviction and sentence vide impugned judgment dated February 12, 2009, both the appellants preferred instant appeal which was admitted for hearing vide order dated May 26, 2009. Trial Court's record was also requisitioned and received.
18. Learned counsel for appellants vehemently assailed the impugned judgment of conviction and order of sentence contending that the same are not sustainable in the eyes of law being based upon unreliable, untrustworthy, inadequate and insufficient evidence. Much reliance has been placed upon the so called dying declaration Ex.PH by the learned trial Court while convicting and sentencing appellants. In fact, statement of Sarabjit Kaur is inadmissible in evidence and deserves to be discarded. It is an undisputed fact that statement of Sarabjit Kaur since deceased was recorded by PW-6 Suba Singh SI/SHO after she was declared fit to make statement by the concerned doctor but at the time of recording statement Ex.PH, doctor was not present and he also did not put his attestation on it. Moreover, statement Ex.PH was recorded by SI Suba Singh on August 17, 2006 but he did not make any effort to get the statement of Sarabjit Kaur recorded from any Executive or Judicial Magistrate who were easily available at station. Occurrence in this case took place on August 16, 2006 at 9:00 p.m. whereas the deceased breathed her last on August 29, 2006. The statement Ex.PH of deceased is nothing but a fabricated document. Since, so called dying declaration Ex.PH was neither recorded in the presence of medical officer nor in the presence Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -9- of the Executive or Judicial Magistrate, it cannot be relied upon to base the conviction.
19. To buttress this contention, learned counsel for appellants has placed reliance upon the judgments rendered in Mukesh Kumar v. State of Haryana; 2008(3) R.C.R. (Criminal) 733 and State of Punjab v. Kikkar Singh; 2002(3) R.C.R. (Criminal) 568.
20. It has further been argued that even otherwise, as per the statement of concerned medical officer, there were 80/90% burns on the body of deceased. Dying declaration Ex.PH cannot be termed to have been made by deceased especially in the circumstances that no certificate was given by concerned medical officer to the effect that deceased was physically and mentally alert enough to make statement. Due to sustaining of serious burns, it cannot be expected that deceased was in a position to narrate the manner in which she received burn injuries or how she caught fire. In fact, she caught fire when she tried to lit an earthern lamp by pouring kerosene in it. This fact further stands fortified from the recovery of an earthern lamp; bottle of kerosene and a match box at the time of spot inspection by PW-6 SI Suba Singh.
21. It was next argued by the learned counsel for the appellant that relation between deceased and her husband Sulkhan Singh as well as other members of her in-law's family were cordial. Her marriage was solemnized in the year 2002. Couple was also blessed with two sons. Moreover, in-laws of Sulkhan Singh did not Thakral Rajeev lodge any protest during the time, deceased survived in 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -10- the hospital after occurrence or subsequent thereto. Rather, Surjit Singh, father of deceased appeared in defence as DW-1 and has supported defence version. It has been specifically deposed by him that on getting knowledge about the sustaining of burn injuries by Sarabjit Kaur, he reached in Civil Hospital, Batala on August 17, 2006 where deceased disclosed to him that her 'Dupatta' caught fire from kerosene lamp and further she was taken to the hospital by her in- laws, firstly at Batala and then to Ludhiana for treatment.
22. To similar effect is statement of DW-2 Rajinder Singh, who is an immediate neighbour of the deceased. Had there been an intention of the appellants to cause death of Sarabjit Kaur, they would not have rushed her to hospital or incurred huge expenditure for her treatment, though, unfortunately, she could not survive.
23. While concluding his arguments, it has been submitted by learned counsel for appellants that so called dying declaration Ex.PH in the circumstances narrated above is unreliable. It also does not find any corroboration from any other evidence. The prosecution has miserably failed to establish the charge against either of the appellants. Rather, from evidence available on file, defence version is more probable and deserves to be accepted. The conviction and sentence awarded to the appellants are not sustainable and are liable to be set aside. Both the appellants deserve acquittal.
24. Opposing the contentions advanced on behalf of the appellants, learned State counsel has ebulliently argued contending that the dying declaration Ex.PH recorded by PW-6 Suba Singh SI/SHO is a true and voluntary account of the circumstances, in Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -11- which, Sarabjit Kaur had died. While referring to Bed-Head-Ticket Ex.PD, it has been submitted that deceased at the time of her admission in hospital narrated that she was burnt by her in-laws by putting kerosene over her clothes.
25. As far as non recording of statement of Sarabjit Kaur by Executive or Judicial Magistrate in the presence of Doctor or that the statement has been recorded by the Investigating Officer just after obtaining opinion with regard to the fitness of Sarabjit Kaur to make statement is concerned, there is no hard and fast rule that dying declaration must be recorded by Executive or Judicial Magistrate or the Medical Officer. Even oral dying declaration is admissible in evidence and can be relied upon to base conviction, if found, trustworthy and reliable and the person recording the dying declaration is satisfied that maker thereof is in a fit state of mind and is capable of making such a statement.
26. In the case in hand, dying declaration Ex.PH was recorded by Investigating Officer, on the basis of which, formal FIR was registered initially under Section 307 IPC. Doctor had opined the victim to be fit to make statement which otherwise could not be established by the defence that the same is wrong, false or fabricated. It does not require any corroboration. The learned trial Court has rightly believed and relied upon dying declaration Ex.PH which fully elaborates the role of both appellants in setting her ablaze and further not taking her to hospital immediately for medical treatment. Instant appeal is devoid of merits and deserves to be dismissed. Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -12- 27. We have given an anxious thought to the aforesaid rival submissions of learned counsel for parties and have carefully scrutinized the evidence while evaluating the dying declaration Ex.PH. A dying declaration is based on the maxim “Nemo moriturus praesumitur mentire”. i.e. a man will not meet his maker with a lie in his lips. It is a declaration made by a dying person as to the cause or circumstances or injuries culminating into his/her death. Undoubtedly, a dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act (for short “the Act”.). It would also be pertinent to mention that it is neither a rule of law nor of prudence that dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. In this regard, we may have the reference of the pronouncement of the Hon'ble Apex Court captioned as State of Uttar Pradesh v. Ram Sagar Yadav and others; (1985) 1 SCC552 28. Adverting to the facts of the case in hand, deceased Sarabjit Kaur sustained burn injuries at her matrimonial home i.e. in the house of the appellants on August 16, 2006 at about 9:00 p.m. She was not immediately rushed to any hospital for medical aid. She was admitted in Civil Hospital, Batala, on August 17, 2006 and an information in this regard was received by the Investigating Officer PW-6 Suba Singh at about 4/4:30 p.m. and thereafter, he visited Civil Hospital, Batala; moved an application Ex.PF to PW-5 Dr. Sukhdeep Singh who opined Sarabjit Kaur to be fit to give statement at 6:10 p.m. vide endorsement Ex.PG. Her statement was recorded and completed at 7:10 p.m. By making an endorsement, statement of Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -13- Sarabjit Kaur was sent to Police Station, Shri Hargobindpur at 7:25 p.m. She remained admitted in Civil Hospital, Batala. There is nothing on the record to suggest that either she was referred to DMC Hospital, Ludhina or she was taken there for further treatment but one thing is evident that she was admitted in DMC Hospital, Ludhiana on August 27, 2006 with alleged history of sustaining burns on August 17, 2006 at Village Rajoya District Gurdaspur. Patient also alleged that she was burnt by her in-laws by putting kerosene over her clothes and ultimately, she breathed her last on August 29, 2006 at 9:20 p.m. History of sustaining injuries was firstly unfolded in the hospital at the time of her admission which was further fortified by her while making statement Ex.PH.
29. As far as the fitness of Sarabjit Kaur to make statement is concerned, PW-5 Dr. Sukhdeep Singh has opined that she was fit to make statement, though, deceased was having 80/90% burns but it cannot be concluded that she was not in a fit state of mind to make statement. In case Kaliya v. State of Madhya Pradesh; 2013 (3) R.C.R. (Criminal) 958, the Hon'ble Apex Court after considering a large number of cases including State of Madhya Pradesh v. Dal Singh and others; AIR2013SC2059 Mafabhai Nagarbhai Raval v. State of Gujarat; AIR1992SC2186 Laxmi v. Om Prakash and others; AIR2001SC2383and Govindappa and others v. State of Karnataka; (2010) 6 SCC533concluded as under: “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -14- there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.”. 30. In the case in hand, the victim survived for a period more than 10 days. Though, during this period, no endeavour was made by the Investigating Officer to get the dying declaration recorded from a Magistrate but dying declaration cannot be discarded especially in the circumstances that she sustained injuries at the house of in-laws. She was not rushed for medical aid immediately after the occurrence and further that if there was any lapse or omission on the part of the Investigating Officer in this regard, evidentiary value of dying declaration is not going to be diminished. Rather, dying declaration Ex.PH gives a detailed narration of facts and circumstances as well as the manner, in which, she was set at ablaze and it cannot be disbelieved simply on account of the fact that it was not recorded by Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -15- a Magistrate or the Medical Officer.
31. Both the authorities relied upon by the learned counsel for the appellants captioned as Mukesh Kumar v. State of Haryana (supra) and State of Punjab v. Kikkar Singh (supra) are distinguishable on facts and are not applicable to the facts and circumstances of the case in hand. There is no evidence to disbelieve or discard the dying declaration Ex.PH.
32. As regards the defence version as well as examination of Surjit Singh DW-1 and Rajinder Singh DW-2, it can be said that the same is not established even prima facie. Right from the beginning, it was the case of deceased that she was being harassed by her in- laws and some altercation also took place at the instigation of mother-in-law between the deceased and her husband Sulkhan Singh prior to the instant occurrence. Had the relations in between husband and wife or with other members of her in-laws' family been cordial, she would not have come with an allegation that they poured kerosene on her body and set her on fire. The mere fact that she was mother of two children is not itself suggestive of the fact that the relations between husband and wife or with mother-in-law were cordial or that she was leading a happy life. No doubt, DW-1 Surjit Singh, father of the deceased has supported the defence version but for reasons close to his chest. As per his version, he reached Civil Hospital, Batala and dying declaration Ex.PH was recorded there. Had the defence version been correct, deceased must not have levelled allegations against her husband and other members of her in-laws. It appears that accused party has prevailed upon DW-1 Surjit Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -16- Singh. Moreover, neither Surjit Singh DW-1 nor Rajinder Singh DW-2 moved to the police to lodge a protest that a false case has been registered.
33. It would also not be out of place to mention here that rule of juris-prudence is that an accused is presumed to be innocent unless he is found guilty of the offence of which he was charged and burden to prove the ingredients of an offence heavily lies upon the prosecution but exceptions to this rule are provided for by Sections 105 and 106 of the Act, which, places a part of the burden of proof on the accused to prove such facts which are exclusively within his/her knowledge.
34. In the instant case, occurrence did take place at the house of appellants but how and in what manner, deceased sustained burns injuries was solely in the knowledge of appellants but they have not furnished any cogent or plausible explanation and the one which has been furnished and discussed above, even could not be established by preponderance of probabilities. Moreover, nothing has emerged in the defence version as to why deceased would falsely implicate her husband or mother-in-law.
35. In view of the aforesaid discussion and taking an over all view of all the facts and circumstances of the case and also the evidence on record, we find no ground to interfere with the order of conviction and sentence recorded by the trial Court holding appellants' guilty of the offence under Section 302/34 of the Indian Penal Code. The appeal being devoid of any merits is dismissed whereby impugned order of conviction and sentence recorded Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-D-258-DB-2009 -17- against the appellants by the trial Court dated February 12, 2009 are, therefore, upheld. (JASPAL SINGH) JUDGE (RAJIVE BHALLA) JUDGE May 2, 2014 rajeev Thakral Rajeev 2014.05.08 12:08 I attest to the accuracy and integrity of this document High Court Chandigarh