Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1945 (PNJ)

State Of Haryana v. Dal Kaur Etc.

2007-11-06

HARBANS LAL, MEHTAB S.GILL

body2007
Judgment Harbans Lal, J. 1. This appeal has been directed against judgment dated 11.8.1995 rendered by the Court of Sessions Judge, Bhiwani, whereby he acquitted all the accused by giving benefit of doubt. 2. The factual matrix of the prosecution case is that Shrimati Sushila (deceased) was married with Umed Singh accused. Her younger sister Shrimati Sunil, PW-4 was married with Suresh, a younger brother of Umed Singh, Sushila gave birth to two male children out of whom one is living with her parents and the other one is living with his father and grand parents. She was brought up by Shrimati Chanderpati, Shiv Lals wifes sister. Chanderpati was married to Shiv Lals real brother. On 27.6.1993, when Om Parkash, PW-5, a resident of village Manikwala, i.e. from the village of the girls side, in routine visited the deceased Sushila at her in-laws place, her other sister Sunil was also present there. He noticed that Sushila and Sunil both were weeping because they were being tortured by the in-laws. However, he after having known about this torture, handed over Rs. 2/- each to Sushila and Sunil as some money is customarily given to the daughters when people from their parental place visited them. On 28.6.1993 at about 7.00 a.m., Sushila was admitted in Civil Hospital, Charkhi Dadri. She was taken by Munni (accused), Umed (accused) and Manoj (accused) to Civil Hospital for her treatment. When she was being treated in the hospital, Dhan Singh, PW-1, Naib Tehsildar recorded her dying declaration, Exh. PA. in which she claimed that on the said morning of 28.6.1993, her husbands sister Billo and Munni accused gave her some poisonous substance in the tea as they were annoyed of the household chores and on this count they used to pick up quarrel with her on trivial matters. At that time, when she was administered the poisonous substance, Vinod, Munnis husband, her mother-in-law and Umed, her husband were also present. On the basis of this dying declaration, FIR, Exh. PA/4 was registered as Sushila expired at 1.20 p.m. on 28.6.1993 in the aforementioned hospital. The autopsy was conducted on her dead body by Dr. H.L. Beniwal, PW-9. On receipt of Chemical Examiners Report, Exh. PE, it was found that Sushila died of poisoning of aluminium phosphide. On the basis of this dying declaration, FIR, Exh. PA/4 was registered as Sushila expired at 1.20 p.m. on 28.6.1993 in the aforementioned hospital. The autopsy was conducted on her dead body by Dr. H.L. Beniwal, PW-9. On receipt of Chemical Examiners Report, Exh. PE, it was found that Sushila died of poisoning of aluminium phosphide. Initially, the case was registered under Section 308/34 of IPC but the challan was presented under Section 302 read with Section 34 of IPC for trial of the accused. On commitment, Dal Kaur, Bimla, Umed Singh and Manoj were charge-sheeted under Section 302 read with Section 34 of IPC. They claimed trial. 3. To bolster up its version, the prosecution examined Dhan Singh, PW-1, Naib Tehsildar, Rajpal, PW-2, Draftsman, Shiv Lal, PW-3, Sunil wife of Suresh, PW- 4, Om Parkash, PW-5, Rajinder Singh SI, PW-6, Prehlad Singh, Head Constable, PW-7, Dr. S.C. Gupta, PW-8, Dr. H.L. Beniwal, PW-9, Dungar Singh, SI, PW-10, besides tendering in evidence the affidavits, Exh. PD of Jagdish, Exh. PD-1 of Head Constable Jai Singh, Exh. PD-2 of Constable Brij Parkash, Exh. PD-3 of Constable Raja Ram and Exh. PE, Chemical Examiners Report, and closed evidence by giving up Balbir Singh, ASI and Rang Lal being unnecessary. When they were called upon to enter upon defence, they opted to lead defence evidence. They examined Ram Phal, Head Constable, DW-1, Ram Pal son of Jug Lal, DW-2, and closed their defence evidence. 4. Mr. S.S. Randhawa, learned Additional Advocate General, Haryana, eloquently urged that on appraisal of the prosecution evidence, it transpires that the deceased was being tortured by the accused persons and to put an end to her life they administered aluminium phosphide to her by mixing it in tea and thus the learned trial Court was not justified in acquitting them. To add further to it, he valiantly urged that the dying declaration, Exh. PA recorded by Dhan Singh, PW-1 speaks volume of their involvement in the commission of this crime and as would be apparent from the judgment under appeal, the learned trial Court did not appreciate the dying declaration as well as other evidence in a desired manner. Consequently, the same is liable to be reversed. 5. Mr. Sanjay Vaishisht, Advocate, appearing on behalf of the respondents, while sparking his mental plug, strenuously contended that the dying declaration, Exh. Consequently, the same is liable to be reversed. 5. Mr. Sanjay Vaishisht, Advocate, appearing on behalf of the respondents, while sparking his mental plug, strenuously contended that the dying declaration, Exh. PA on which prosecution is reclining abundantly, would reveal that it was not recorded by Dhan Singh, PW in his own hand. Rather, it is in the hand of the SHO and the reason assigned by Dhan Singh for not taking down Exh. PA in his own hand is that he had pain in his arm, but there is no evidence to the effect that on that day Dhan Singh was suffering from pain. On a combined reading of the statement of Dhan Singh as well as Dungar Singh, SI, it can be culled out that indeed the thumb impression of the deceased was obtained on the blank paper and later on, the so called dying declaration was scribed. He further pressed into service that a meticulous perusal of Exh. PA would reveal that no opinion regarding fitness of the deceased was obtained before recording the same. It is further submitted that as per Chapter 13-A, Volume III of the High Court Rules and Orders, it was obligatory upon Dunagar Singh, PW (Investigator) to have approached the Judicial Magistrate to get the dying declaration recorded. He has not assigned any reason worth the name for not taking recourse to this process and resultantly the possibility of getting the thumb impression of the deceased after her death on the blank paper cannot be ruled out. 6. Last of all, he canvassed at the bar that as ruled in Re : Dwarka Dass and others v. State of Haryana, 2002(4) Recent Criminal Reports 794(SC), if two vies are reasonably possible, on the basis of evidence, one supporting the acquittal and the other indicating conviction, then in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial Court, would have taken the other view and if the judgment of the Sessions Judge was absolutely perverse, illegally erroneous on the basis of wrong appreciation of evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal. He further argued that if the impugned judgment is read with great care, it would be found that the same does not suffer from perversity or impropriety nor is based on a wrong appreciation of evidence and that being so, it would be going too far to set aside the same. 7. On giving a deep and thoughtful consideration to the rival contentions, the view we are disposed to take is that the contentions raised by Mr. Randhawa have no legs to stand upon for the discussion to follow hereunder :- 8. Before proceeding further, it would be apposite to reproduce here the English rendering of the dying declaration, Exh. PA which is as under :- "I am resident of village Gopalwas and am engaged in agriculture. I have two sons, elder son is Rajesh aged about 7 years while younger is Karambir aged about 3 years. Today in the morning I was suffering from headache. My Nanad Munni aged 25 years, who is married in Paitanwas and had come to her parental home at Gopalwas for the last 1-1/2 and 2 months, have administered some churan like substance mixed in the tea, immediately after I have consumed the same, I started vomiting. At the time, my husband, Umed Singh and my mother-in-law and Vinod husband of Munni r/o Paintanwas were also present. Due to my deteriorating condition my husband and Vinod removed me in a Jeep to Dadri hospital. Munni also accompanied me. My Nanads Billo and Munni had administered some poisonous substance in the tea. Both of my aforesaid Nanads used to pick up quarrels with me over domestic work. My marriage has taken place about 9 years ago. I want action against my Nanads Billo and Munni." 9. Dhan Singh, PW-1, went on to say that the statement of Sushila, Exh. PA was recorded by him. In his next breath, he deposed that, in fact, I did not record the statement of Sushila in my own hand as I was having pain in my arm, I was asking questions and the SHO was writing the statement. I made my endorsement, Exh. P-1. Under the stress of cross-examination, he has stated that I did not mention under the statement, Exh. PA or in the endorsement that I was having pain in my arm and that I did not make it clear in the statement, Exh. I made my endorsement, Exh. P-1. Under the stress of cross-examination, he has stated that I did not mention under the statement, Exh. PA or in the endorsement that I was having pain in my arm and that I did not make it clear in the statement, Exh. PA that I was asking the questions and the SHO was writing the statement. The endorsement, Exh. P-1 reads in the following terms :- "Statement of Shrimati Sushila wife of Umed Singh, resident of Gopalwas, recorded in my presence in Civil Hospital, Charkhi Dadri at 11.30 a.m. on 28.6.1993. Sd/- Executive Magistrate, Charkhi Dadri 28.6.1993." 10. A glance through this endorsement would reveal that there is no tremor in the writing. Had there been pain in the right arm of the Executive Magistrate, he would not have been able to scribe this endorsement in a calligraphic manner in his own hand. This gives an inkling that as a matter of fact he pretended in the Court that he was having a pain in his arm on the relevant date and time. The ink of the alleged thumb impression of the deceased on Exh. PA is faint. If the Executive Magistrate was unable to record the dying declaration in his own hand on that day, either he should have refused to go to the Hospital or to take his Reader along for the purpose of scribing the dying declaration on his dictation. The prosecution has not proffered any reason as to why the Executive Magistrate was approached by the Investigator, abhorrent to the provisions of chapter 13-A, Volume-III of the High Court Rules and Orders which lays down that "where a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of an alleged crime, is in danger of dying before the inquiry proceedings or the trial of the case commences, his statement, if possible, be got recorded by a Judicial Magistrate. It further envisages that when the Police Officer concerned with the investigation of the case or the Medical Officer attending upon such person, apprehends that such person is in the danger of dying before the case is put in Court, he may apply to the Chief Judicial Magistrate, and in his absence, to the Seniormost Judicial Magistrate present at the headquarters, for recording the dying declaration." In his cross-examination, Dungar Singh (sic) has stated that in fact I did not know if the application was to be made before the Judicial Magistrate. This explanation is unacceptable for the reason that he being the officer of the rank of SI, might be knowing that at such a juncture, the Judicial Magistrate is to be approached. As has surfaced in the cross-examination of Dhan Singh (sic), he did not obtain any opinion from the Medical Officer that Sushila was fit to make a statement. Dr. S.C. Gupta, PW-8, in his cross-examination, has also deposed that I have not mentioned any time on the endorsement declaring Sushila fit to make a statement in my own hand. He spills the beans by further stating that it is, however, correct that my opinion declaring Sushila fit to make a statement, was obtained later on after the statement was recorded. It is crystal clear from this evidence that the opinion of the Doctor was not obtained that Sushila was in a fit state of mind before recording her statement. If so, where was the vouch for the fact that she was conscious and in a fit state of mind. As per latest enunciation of law, the dying declaration should be recorded only on being declared that the patient is in a fit state of mind, by the doctor. Dhan Singh, in his cross-examination, has stated that Sushilas eyes were some times closed and some times were open and that she was crying with pain. This evidence gives an inkling that Sushila was not in a fit state of mind. Dungar Singh (sic), in his cross-examination, has deposed that the Magistrate was asking the questions while I was writing. In his next breath, he has stated that the Tehsildar, who recorded the statement, did not have any injury on his hand or on any part of his body. Dungar Singh (sic), in his cross-examination, has deposed that the Magistrate was asking the questions while I was writing. In his next breath, he has stated that the Tehsildar, who recorded the statement, did not have any injury on his hand or on any part of his body. It is in his further cross-examination that we did not obtain a certificate from the Medical Officer before recording of the dying declaration. In his further cross-examination, he testified that I cannot say the reason why we obtained the thumb impression of the deceased rather than obtaining her signatures when she was educated upto Class X. This witness, Dungar Singh, in his further cross-examination, has solemnly affirmed that father of the deceased and other persons from her village were present when the dying declaration was being recorded and that I did not ask those persons to go away from the room when the statement was being recorded. 11. As per Chapter 13-A, Volume-III (ibid), before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the declarant is in a fit condition to make a statement, and if the Medical Officer is present, or his attendance can be secured without loss of time, a certificate as to the fitness of the declarant, should be obtained. In view of these rules, it was imperative upon Dhan Singh (sic.) to have obtained opinion of Dr. S.C. Gupta, in attendance, before recording the dying declaration. Obviously, he has given a go-bye to these rules. 12. As noted supra, according to Dungar Singh, PW (investigator), father of the deceased and other persons from her village were present when the dying declaration was being recorded and that he did not ask those persons to go away from the room when the statement was being recorded. 13. Shiv Lal, PW-3 has stated that he along with Balbir Singh, went to the Civil Hospital, Charkhi Dadri and they found Sushila admitted there and on his inquiry from her, she told him that she had a headache on that very day, i.e. 28.6.1993 and she told that her husbands sister Munni and Billo put some powder (churan) in her tea and as soon as she took that tea, she started vomiting. Thus, obviously there could be every possibility that the deceased was tutored by him being present by the side of his daughter. 14. Thus, obviously there could be every possibility that the deceased was tutored by him being present by the side of his daughter. 14. As per the prosecution evidence, Sunil, PW-4 was the real sister of the deceased and she was married with Suresh. Sunil, PW has stated in the following terms :- "A day before the death of Sushila, Manoj husband of Munni Devi, had come to village Gopalwas to our house. At about 10.00 p.m. on 27.6.1993, Manoj had come to our house. Manoj took liquor while sitting on the door of the house and he asked my sister deceased Sushila to cook the meals quickly. My sister told that Billo, Munni and Dhanpati will cook the meals and she was not to cook those days. She had left cooking the meals and those ladies were for cooking the meals. Then Munni, Billo, Manoj and Umed gave fists, slaps and kicks to my sister Sushila. I was looking at this scene. Then Om Parkash of Manakwas came at the time when my sister was being beaten. I told Sh. Om Parkash to send my father so that we could tell our father as such about the conduct of the accused. Then on 28.6.1993, my sister Sushila got headache. I was doing my other household work. All the accused conspired with each other. All the four accused i.e. Billo, Munni, Manoj and Umed conspired and Billo accused prepared tea. Billo handed over the cup of tea to Munni. Manoj took out some thing from his pocket and handed over the same to Munni and Munni put that powder in the cup of tea and Munni handed over the cup of tea to my sister. As soon as my sister took the tea, she started vomiting and her condition became precarious. Then Munni, Umed and Manoj took my sister to hospital at Charkhi Dadri. Then we came to know that some wrong thing was given in the tea. She died in the hospital. I told all these things to the Police." 15. A reading of the dying declaration, Exh. PA as well as the statement of Sunil, PW-4, in juxtaposition, would reveal that Sushilas evidence is not in consonance with the dying declaration. Exh. PA is absolutely silent about the occurrence of 27.6.1993. There is also no mention in Exh. I told all these things to the Police." 15. A reading of the dying declaration, Exh. PA as well as the statement of Sunil, PW-4, in juxtaposition, would reveal that Sushilas evidence is not in consonance with the dying declaration. Exh. PA is absolutely silent about the occurrence of 27.6.1993. There is also no mention in Exh. PA that Sunil, PW was present when the alleged occurrence took place. In her cross-examination, Sunil has stated that I did not catch hold of Munni or Manoj as to why they were putting some thing in the cup of tea. If she had been there at the material time, she being the real sister of the deceased, might have made certain efforts to thwart or foil their attempt. It is in her cross- examination that we did not lodge any report with the Police immediately after my sister was being beaten nor did I inform the Police at night or in the morning nor did I make any statement before the Police that my sister was being beaten last night. Had she been present in the house at the time of occurrence or on the preceding day, she might have put resistance besides reporting the matter to the concerned authorities. Thus, her presence at the relevant time is rendered highly doubtful. 16. Shiv Lal, PW-3, father of the deceased has stated in no uncertain terms that his daughter had died when the Police arrived in the hospital. If she had already expired, how her alleged dying declaration could be recorded. This further raises the dimensions of doubt that her thumb impression was obtained after her death. It is apt to be borne in mind that according to Dr. H.L. Beniwal, PW-9, the cause of death in this case was asphyxia due to poision - aluminium phosphide - taken by the deceased Sushila. It implies that there was no external injury on any part of the body including the right hand and that being so, she being educated was able to append her signatures under her alleged dying declaration, if she had really made the same. 17. It is also worth pointing out here that if at all the accused were bent upon to eliminate the deceased by administering a tablet of aluminium phosphide, there was no necessity for them to prepare tea. 17. It is also worth pointing out here that if at all the accused were bent upon to eliminate the deceased by administering a tablet of aluminium phosphide, there was no necessity for them to prepare tea. Shiv Lal, PW-3 is absolutely silent that he was told by Om Parkash, PW-5 that he (Om Parkash) had visited his daughter or that she was given beatings by her in-laws. This further shows that Om Parkash has also been introduced as a witness. As is borne out from the record, Billo, Munni and other accused, themselves got the deceased admitted in the Civil Hospital hurriedly by taking her in a jeep and she was attended upon by the doctor immediately. If the accused were all out to take her life, they might have not made endeavour to save her by taking her to the hospital immediately. The theory of rival defence set up by the accused Dal Kaur is that Chanderpati, sister of the deceaseds mother had taken the ornaments of Sunil, PW-4 and the deceased Sushila and they (accused) had demanded the same as the ornaments did belong to their daughter-in-law. Shiv Lal, PW has stated in his cross-examination that Chanderpati, my wifes real sister is married to my real brother in our village. May be that Chanderpati being the deceaseds mothers sister, Sushila felt herself in an odd situation to demand the jewellery from her (mothers sister) and resorted to commit suicide. There is no cogent, convincing and clear evidence on the record to demonstrate that the deceased wa subjected to cruelty by the accused. The record is quite barren to reveal any overt act on the part of the accused persons that they abetted the commission of any such crime. 18. In the final analysis, it comes out that the prosecution has dismally failed to bring home guilt to any of the accused. The judgment appealed against is neither perverse nor is based on a wrong appreciation of the evidence. Sequelly, no interference therein is warranted. Hence, this appeal is dismissed being devoid of any merit.