V.K. Bali, J.
1. Gurnam Singh appellant herein has called in question order of conviction and sentence dated 25th of Feb. 1997 passed by Shri M. S. Garg, Sessions Judge, Ambala vide which he has been held guilty under Section 304B of the Indian Penal Code and sentenced to undergo R.I. for life as also under Section 498A of the Indian Penal Code and sentenced to undergo R.I. for two years and to pay a fine of Rs. 1,000/- or in default thereof to further undergo R.I. for three months. He faced trial on two counts as referred to above along with his mother Krishna who was 70 years of age and did not survive the length of trial.
2. Death of Paramjit Kaur alias Sunita was reported by her brother Parveen kumar on 8-9-1992 at 9.15 p.m. His statement was recorded by ASI Sagar Chand PW 11. Special report with regard to incident reached Chief Judicial Magistrate, Ambala at 5.15 a.m. on 9-9-1992, Parveen Kumar while unfolding the prosecution version stated that he was resident of Karashi Mohalla, Kalka. His father died about eight years age. He had four sisters and one brother. His eldest sister Paramjit kaur alias Sunita aged 25/26 years was married with Gurnam Singh about two years ago according to Hindu rites. They had given dowry in her marriage according to their capacity. A daughter was born to her sister about 11 months age. On that occasion also they had given her several articles including clothes and ornaments according to their prevalent custom but his brother-in-law i.e. appellant and his mother Krishna Devi considering these articles to be inadequate, as per their expectations had passed indecent remarks against him and his sister Parmjit Kaur, Ashok Kumar had, however, pacified them and had assured them to make the deficiency good at proper time. Thereafter, when their demand for more articles could not be fulfilled, they started maltreating his sister Paramjit Kaur. His sister used to tell them about their misdeeds as and when she happened to meet them. He however, while apprising of his poverty to her sister used to tell her to bear all this without protest. His sister Paramjit Kaur had come on the occasion of Rakhi about 25/26 days back to their house at Kalka and told them about the maltreatment being meted out to her by her in-laws. At this he decided not to send Paramjit Kaur to her in-laws. About ten days back his brother-in-law Gurnam Singh had come to Kalka to take his sister Paramjit Kaur along but they refused to send her with him. However, they sent Paramjit Kaur with the appellant on the assurance given by one Prabhu Dayal Sharma of Kalka. About one week back, Krishna Devi had remarked that they would teach them a lesson for this insult. On the day when he lodged the F.I.R. he came to know that his sister Paramjit Kaur had died in PGI Chandigarh due to burn injuries. He was sure that Gurnam Singh and Krishna Devi out of their greed for money and other articles had forced his sister Paramjit Kaur to set herself on fire.
3. The prosecution to bring home the offence against the appellant examined Dr. Pawan Kumar Bansal, Medical Officer, District Medical Office, Chandigarh as PW 1. He stated that on 8-9-1992 when he was posted as Medical Officer in General Hospital Sector 16, Chandigarh, he was on post mortem duty. He conducted the post-mortem examination on the dead body of Paramjit Kaur alias Sunita. The body was identified by Gurnam Singh and Sanjay Kumar. On the dead body of deceased, superficial to deep burns all over the body except below the umblicus upto vagina were present. There were about 94 per cent burns. He had conducted post-mortem along with Dr. Parminder Singh, Medical Officer. In their opinion cause death was shock and haemorrhage due to 94 per cent burns which was sufficient to cause death in the ordinary course of nature. The burns were ante mortem in nature. The time between injury and death was 48 hours and between death and post-mortem 30 hours. In his cross-examination he stated that the deadbody of the deceased had come from the PGI and that the deceased was never admitted in their hospital nor they treated her. He admitted that synthetic clothes were more inflammable. Ashwani Kumar, Executive Magistrate, appeared as PW 2. He stated that on 5-9-1992, he was posted as Executive Magistrate. On that day Piara Singh Head Constable, Incharge Police Post, PGI, moved application EX. PD for recording the statement of Paramjit. On this application he sought opinion of the doctor vide his endorsement at point 'A' whether she was fit to make her statement. At point 'B' doctor opined that she was fit to make her statement. He made his endorsement at point 'C' and recorded the statement of Paramjit Kaur. He proved the statement Ex. PE as having been recorded by him. He read over the statement to Paramjit Kaur which she admitted to be correct and put her right thumb impression at point 'A'. He attested the statement and handed over to the police. He further stated that he did not enquire whether Paramjit Kaur was literate or not. Her thumb impression was obtained with the help of pad ink on Ex. PE but her hands were burnt so the impression was not clear. He further stated that he recorded whatever was stated by Paramjit Kaur and he had not got any endorsement or verification of the doctor on statement Ex. PE. He had not met any attendant upon her. In his cross-examination he stated that since he had already obtained the opinion of the doctor with regard to fitness of Paramjit, so he did not feel it necessary to obtain endorsement of the doctor on Ex. PE. He further stated that accused was not known to him nor he was connected to him in any way. Head Constable Piara Singh PW 3 on receipt of ruqa Ex. PF moved application Ex. PD to the Executive Magistrate, U.T. Chandigarh. On the basis of this application, Shri Ashwani Kumar Executive Magistrate who was on duty for this purpose further moved application Ex. PD to a doctor and after obtaining the opinion of the doctor that injured Paramjit Kaur was fit to make a statement, he recorded her statement. He handed over the statement Ex. PE to him and he in turn handed over these papers to MHC who took the charge from him. He also informed the Police Station, Pinjore through V.T. message, PW. 4 Chandan Singh stated that on 8-9-1992 at about 10 PM he left police station, Pinjore for handing over the special reports in this case to the higher authorities and thereafter handed over the special reports to the DSP Panchkula, CJM Ambala and S.P. Ambala. There was no delay on his part in delivering the reports to the concerned officers. PW 5 Parveen Kumar the first informant and the real brother of deceased Paramjit Kaur stated that his sister was married with the appellant on 9-6-1990 at Kalka and a female child was born out of the wedlock and the appellant was keeping the said female child. The appellant and his mother Krishna used to bear his sister and they also wanted valuables and money as part of dowry. Since they were unable to meet the demand of the accused, therefore, they had been consistently maltreating her sister. His sister used to visit them and would tell them that the accused persons used to beat her. When a female child was born, then the accused persons caused beating to his sister. On the birth of female child they had taken some valuables, which are customary but the appellant and his mother did not feel satisfied with that. When female child was about 11 months, the deceased had come to them on the occasion of Rakhi and his sister told him that she used to be beaten by the appellant and his mother and his neighbour Prabh Dayal and Ashok Kumar, persuaded the appellant not to beat his sister and, therefore they had sent his sister with the accused but even then the appellant and his mother did not spare her. Mother of the accused had come to them also a that time and she told that she would teach them a lesson within a week's time. His sister was brought by the accused person. When his sister died the accused did not send any intimation to them. Even after two days of the death accused did not tell them about the death of her sister. Some boy from Kalka came and told them. They went to PGI. Then her sister told him that Krishna poured kerosene oil on her body and the appellant lit the fire on her body. His sister had already been frightened by the accused persons not to tell all this to anyone. The accused had demanded a sum of Rs. 50,000/- as he wanted to purchase a van. They could not pay Rs. 50,000/- to the accused as they had no father. His sister died after two days of the occurrence. In cross-examination he stated that his statement that accused Krishna had poured oil and appellant had set his sister on fire was not recorded by any doctor or Judicial Magistrate or by any other person. No medical certificate was obtained that beating was given by the accused to his sister. They had not intimated either S. P., D.C. or Panchayat or any person of the brotherhood that his sister used to be maltreated. However, the neighbours knew about it. They came to know about it on 7-9-1992 and went to lodge the report but nobody recorded the same. He further stated that he had not made any complaint about it anywhere. However, the report was lodged on 8-9-1992 at 7.00 p.m. The Police had come to PGI and his statement was recorded there. He further stated that he had not got recorded in his statement that Krishna had put kerosene oil and the appellant had set her on fire and that he was informed by a boy from Kalka about it. He also did not get it recorded in his statement that a demand of Rs. 50,000/- was made by the accused. He admitted that Executive Magistrate recorded the statement of his sister but he did not know the contents thereof as to whether she had stated that it was an accidental fire or that she got recorded that nobody was at fault. He denied the suggestion that the appellant and his mother never maltreated his sister or they have brought a false case to exploit the situation or that they had joined hands and brought a false case against the appellant and his mother. He denied if his sister was treated well by the appellant. He denied knowledge if his sister had been taken to the civil hospital by the appellant. He, however, further stated that now they have come to know that the appellant and his other men had taken his sister to PGI. He also admitted that appellant had also minor burns on his fingers. He, however, stated that if the appellant had actually tried to save his sister he would have got extensive burns. Ashok Kumar stated that he was living in the adjoining house of the parents of the deceased in Kalka. When Sunita had given birth to a daughter and when she was to go, some clothes and valuables were given by her parents. The appellant and his mother had come to take Sunita. They did not feel satisfied with the valuables given and so there was dispute. He persuaded the appellant and his mother that they will be given more valuables in times to come and that they should depart peacefully. In cross-examination he stated that he did not remember the exact date on which Sunita was taken. He further stated that he never made any complaint to the police regarding the alleged maltreatment of the deceased at the hands of the accused persons. Parbh Dayal PW. 7 stated that Sunita was living almost in front of his house. She did not tell him, in fact, anything directly about the maltreatment at the hands of the accused persons but brother and mother of the deceased, however, used to tell that Sunita had been telling that she had been maltreated because there was some demand by them. Sunita had come on the occasion of Rakhi. She must have told her mother and brother about maltreatment meted out to her by the accused. The appellant alone had come to take Sunita. He had heard a dispute between Gurnam Singh and Sunita at Kalka at her parents house. He heard from Sunita that she was being maltreated by the appellant and his mother and she also told that she did not want to go with the appellant. Mother and brother of the deceased told the accused that he was wandering without any work and that he should do some job. He intervened in the matter. The appellant had told him that he wanted to run a taxi. However, no amount as such was fixed for the purpose of taxi. He, however, persuaded Sunita to go with the appellant. In cross-examination he stated that he did not remember the date of Rakhi and Sunita may have been married in 1990 or so. No other neighbour had come to intervene. The appellant had come to the house of the brother of Sunita on the day of Raksha Bandhan. He admitted that he had not stated in his statement made before the police that the appellant wanted the money for running the taxi. Radhey Sham a Tailor Master who was examined as PW. 8 stated that on 5-9-1992 at about 4 PM when Balwant Nath and Balwant Kumar were with him and they were talking near the house of the appellant, there was some dispute and people were running around. The dispute was between the appellant and his wife. In fact, a fight had taken place between the two and they intervened and diffused the situation. He, further stated that they had not seen actually any dispute. They reached later on the spot. The appellant was holding a stick in his hand but in his presence no blow was given to Sunita. This witness was declared hostile and was cross-examined by the Public Prosecutor. In his cross-examination he admitted having made a statement before the police. He stated that his statement was also to the effect that there was alarm raised by the wife of Gurnam Singh and Gurnam Singh was holding the stick. He did not mention that the appellant was running after Sunita with a stick. When confronted with his statement Ex. PH wherein it was so mentioned, he stated that the appellant was running with danda after Sunita so as to best her. In his cross-examination conducted by the Counsel for the appellant he stated that his village was at a distance of about half a kilometer but the shop was near the house of the appellant. He had taken the shop on rent from one Narottam Singh. He, however, could not give the number of the shop that he had occupied at the time of the incident. He, however, stated that several houses and shops were there near the house of Gurnam Singh and that several people had also collected there and were running around. PW 9 Inspector Deep Ram stated that on 9-9-1992 he recorded the statement of Ashok Kumar and Parbh Dayal and arrested appellant and his mother Krishna on 12-9-1992. PW 10 Amrik Singh and Patwari deposed with regard to site plan Ex. PJ that was prepared by him. PW 11 Sagar Chand ASI detailed the steps that he had taken while investigating the case.
4. When examined under Section 313 of the Code of Criminal Procedure the appellant while denying incriminating material put to him further pleaded that he was innocent. Paramjit Kaur caught fire when she was cooking meals on a stove. He tried to save her and got burns on his fingers. There was no maltreatment meted out to Paramjit Kaur and he was involved falsely due to emotional reasons and ulterior motives. He examined in defence DW. 1 Jora Singh Pharmacist, General Hospital, Sector 16, Chandigarh who deposed that he had brought the original summoned register reading whereof would show that on 6-9-1992 as per entry No. 29645 Gurnam Singh was given treatment relating to burn injuries. Dressing and tables are mentioned in the register as have been given to appellant Gurnam Singh.
5. We have heard Mr. H. S. Gill learned Senior Advocate representing the appellant assisted by Mr. G. S. Gill and Mr. Varinder Singh, Deputy Advocate General, Haryana and have carefully gone through the record of the case. The first question that needs determination is as to whether Sunita was maltreated or harassed on account of demand of dowry or the one given to the appellant at the time of marriage was inadequate or not commensurate to the status of the appellant. After examining the oral evidence that has been led on that count, the Court is of the firm view that no demand of dowry was made at any stage whatsoever and a crude attempt has been made to improve upon the prosecution version by the brother of the deceased Sunita. Before the statement made by the brother of the deceased is critically examined it would be worthwhile to mentioned that whereas the appellant himself was a daily wager, in so far as brother of Sunita is concerned, he was a class IV employee. The parties are Harijans by caste and father of Sunita had died far before her marriage with the appellant. Parveen Kumar had four sisters and as mentioned above the family had lost the father before Sunita was married. Looked in this background, the demand of Rs. 50,000/- so as to purchase the taxi by the appellant which has been mentioned for the first time when Parveen Kumar appeared in Court as PW. 1 certainly appears to be an after-thought. It may be mentioned that not a word is mentioned in the F.I.R. which came to be lodged by none other than Parveen Kumar himself, regarding the demand of Rs. 50,000/- by the appellant for purchasing a taxi, there is not a word mentioned in the F.I.R. with regard to any demand that might have been made immediately before or after the marriage. All that has been stated in the F.I.R. is that a daughter was born to Paramjit Kaur alias Sunita 11 months before the occurrence and on that occasion several articles including clothes and ornamemts were given to the appellant and these articles were considered to be inadequate, by the appellant and his mother. That at that time they passed indecent remarks against Parveen Kumar and his sister. At that time Ashok Kumar had pacified the appellant and assured him that the deficiency shall be made good at the proper time. It has further been mentioned in the F.I.R. that when the demand for more articles could not be meted out, the appellant and her mother started maltreating Paramjit Kaur who in turn would tell all about this to Parveen Kumar and others whenever she met them. It is significant to note that no details whatsoever have been given as to what items were given when the couple was blessed with a female child. What was told in turn by the appellant and his mother that should have also been given has also not been mentioned. When Paramjit Kaur had come to the house of Parveen Kumar about 25/26 days before the occurrence and on Rakhi festival, she had told about the maltreatment meted out to her by her in-laws. At this stage also she did not talk of any specific thing having been demanded by the appellant and his mother. In what manner she was maltreated has also not been mentioned at all. Parveen Kumar at that time decided not to send Paramjit Kaur to her in-laws house. But when ten days before the appellant came to Kalka to take Paramjit Kaur, she was sent on the assurance given by one Parbh Dayal Sharma. It is further mentioned in the F.I.R. that about a week ago Krishna Devi had remarked that they would teach them a lesson for this insult within 4/5 days. Reading of the entire F.I.R. gist of which has been given above and which has been reproduced in verbatim in the earlier part of the judgment would, thus, make it clear that there was no demand of any specific item made by the accused or his mother at any time. General allegations of inadequate, articles at the time when a female child was born to the couple have been made. If in the context of averments made in the F.I.R. the statement of PW. 5 Parveen Kumar is examined, it would be clear that he has tried to improve upon the version given by him while lodging the F.I.R. so as to pin down the appellant with demand of dowry. The statement made by him to the effect that the appellant and his mother used to beat his sister Paramjit Kaur and also demanded valuables and money as part of dowry is an afterthought and improvement in the prosecution version. He further stated that since they were unable to meet the demand of the appellant, they had been consistently maltreating his sister is also an after-thought. The demand of Rs. 50,000/- to purchase a taxi is again an afterthought and an improvement on the prosecution version. In the totality of the facts and circumstances of this case that have been fully detailed above, we are of the view that Paramjit Kaur was not maltreated ever, atleast on that count that she had not brought adequate, dowry and, therefore, there were persistent demands on that count by the appellant. If the statement of Parveen Kumar with regard to demand of dowry is rejected, no reliance can be placed on the statement of other witnesses who by and large deposed with regard to maltreatment meted out to Paramjit Kaur having heard it from Parveen Kumar and his family members. In this background if the dying declaration made by Pramjit Kaur is looked into, it is clear that the same was voluntary and no pressure was exerted upon her at the time she made the same. The dying declaration came to be recorded by the Executive, Magistrate. The same has been proved by the Executive, Magistrate himself who appeared as PW 2. He stated that Piara Singh Head Constable Incharge Police Post PGI moved an application Ex. PD. On this application he sought the opinion of the doctor as to whether Paramjit Kaur was fit to make a statement. Doctor opined that she was fit to make a statement. He made endorsement to that effect and then recorded the statement of Paramjit Kaur. He stated that the statement was read over to Paramjit Kaur who admitted it to be correct and put her thumb impression. He attested the statement and handed over the same to the police. The witness further stated that he had not met any attendant who might be there to look after Paramjit Kaur. We have ourselves examined Ex. PE. The same has been written in Hindi and bears the right thumb impression of Paramjit Kaur. It was attested by the Executive Magistrate on 5-9-1992 at 10.45 p.m. It bears the endorsement of the police where it is mentioned that the statement was recorded by the Executive Magistrate, Ashwani Kumar and was thereafter handed over to Head Constable. The Executive Magistrate stated that he had no connection with the accused whatsoever. Nothing at all has been brought on the record from where it can be shown that the Executive Magistrate was, in any way, interested in the appellant. We find nothing wrong in his statement as also the way and manner he recorded the statement of Paramjit Kaur. It may be mentioned at this stage that the occurrence is said to have taken place on 5-9-1992 at 6.00 p.m. It is admitted that the appellant alone had taken his wife in an injured condition to the doctor. She was admitted in the hospital at 7.45 p.m. on 5-9-1992. The doctor attending on her had sent information Ex. PF at 7.50 p.m. It was sent to Police Post PGI. It is mentioned in this information itself that arrangement should be made to record dying declaration of the injured. On receipt of the information referred to above Head Constable Piara Singh addressed application Ex. PD to S.D.M. Chandigarh on 5-9-1992. On receipt of the application referred to above, Executive Magistrate came to record the statement of Paramjit Kaur and before recording the same obtained the opinion of the doctor as to whether she was fit to make statement. Her statement was recorded only when the doctor had given his opinion in affirmative. The dying declaration was recorded by the Executive Magistrate at 10.45 p.m. on 5-9-1992. In the sequence of events that have been mentioned above, the dying declaration appears to have been truely and correctly recorded by the Executive Magistrate. It may be mentioned here that while making a statement Paramjit Kaur also stated that her husband had also burn injuries on his hands while endeavouring to rescue her and it is proved from the statement of DW 1 that the appellant did receive burn injuries although he was examined on 6-9-1992. The defence version that Paramjit Kaur died on account of burn injuries having sustained the same while she was working in the kitchen further appears to be correct from the fact that the doctor who had conducted the post-mortem on the deadbody of Paramjit Kaur did not say that either the body or the clothes worn by Paramjit Kaur were smelling of kerosene oil. That was an important aspect of the case and in all probability the doctor who conducted post-mortem examination would have not missed this aspect and would have certainly recorded that either the body or clothes had some smell of kerosene oil. No attempt was even made to get the clothes chemically examined to form an opinion as to whether the same were burnt on account of kerosene oil having been poured on the same.
6. Mr. Varinder Singh learned Deputy Advocate General representing the State of Haryana, however, vehemently contends that the brother of the deceased was not informed that she had got burn injuries and had been rushed to the hospital. It is being argued for the reason that it is not clear from the records as to when Parveen Kumar PW. 5 came to know about the incident and might have as such reached the hospital. From the mere fact that it cannot be ascertained as to when Parveen Kumar reached the hospital, it cannot be said that he was never informed about the incident by the appellant or his family members. That apart, Kalka and Pinjore are not at a far of distance and it is not possible to believe that PW. 5 would have not come to know about the incident up to 8-9-1992 when he lodged the F.I.R. It has been argued by Mr. Varinder Singh that false evidence has been led by the appellant with regard to burn injuries said to have been sustained by him at the time of incident itself. With a view to strengthen the argument referred to above, it has been stated by the learned Counsel that if the appellant had got burn injuries on his hands on 5-9-1992. It is not possible that he was treated for the said injuries only on 6-9-1992. It is, thus, being suggested that he self suffered injuries on 6-9-1992 and then got treatment for the same, we have absolutely no hesitation in rejecting this arguments. If the appellant was to make such a crude attempt, he could have self suffered injuries on 5-9-1992 itself and not waited for the next day to do the same. Further, the wife of the appellant was admitted in the hospital at about 7.45 p.m. on 5-9-1992, she had 94% burn injuries on her person. All out efforts must have been made at that time to look after Paramjit Kaur and if while doing so, the appellant got himself treated only on the next morning, nothing unnatural can be spelled out from the same. As mentioned above, it is admitted position that Paramjit Kaur got injuries at 6.00 p.m. on 5-9-1992. She was rushed to hospital by none other than the appellant himself and got admitted at 7.45 p.m. It would take an hour or so to reach P.G.I. from Pinjore and the appellant must have taken some time to make arrangements for conveyance etc. The conduct of the appellant in rushing his wife to the hospital immediately also reflects that in all probability he was injured while attempting to rescue his wife.
9. For the reasons mentioned above, we allow this appeal and consequently set aside the order of conviction and sentence dated February 25, 1997 recorded by the Sessions Judge, Ambala. The appellant be set at liberty forthwith if not required in any other case.
10. Appeal allowed.