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2007 DIGILAW 352 (PNJ)

Surjit Kaur v. State Of Punjab

2007-03-05

ARVIND KUMAR, MEHTAB S.GILL

body2007
Judgment Arvind Kumar, J. 1. The appellant Surjit Kaur has been convicted under Section 302 I.P.C. by the learned Addl. Sessions Judge (Ad hoc) Fast Track Court, Faridkot for having committed the murder of her daughter-in-law Karamjit Kaur and grand-daughter Kirandeep Kaur, an infant of about one and a half year age and sentenced to undergo life imprsionment with a fine of Rs. 2,000/- on each count. In default of payment of fine, the appellant has to further undergo rigorous imprisonment for 3 months. Both the sentences were ordered to run concurrently. 2. Through the instant appeal the appellant has impugned the aforesaid judgment of conviction and order of sentence. 3. The case of the prosecution finds its origin in dying declaration Ex.PG suffered by Smt. Karamjit Kaur (since deceased) before A.S.I. Mohinder Singh (PVV.7) on 24.7.2001 at about 9.40 a.m. while she was admitted with burn injuries at D.M.C. Hospital, Ludhiana, wherein she disclosed that she is resident of village Rupana. Her marriage took place about two and a half years back and a daughter was born to her. On the fateful day i.e. 22.7.2001 at about 9/10.00 a.m. she had to go to her parental house, but her mother-in-law refused for the same. On this, a quarrel had taken place between her and the appellant. After that when her husband was taking bath and she was combing the hair of her Kirandeep Kaur, her mother-in-law Surit Kaur after pouring kerosene oil on her, with an intention to kill, set her ablaze. As a result, her daughter Kirandeep Kaur died at the spot. On the basis of this statement, present case was registered against the appellant. A.S.I. Mohinder Singh on that very day itself, then approached the Chief Judicial Magistrate, Ludhiana and moved application Ex.PF for recording the statement of Karamjit Kaur by a Magistrate, upon which Duty Magistrate/Judicial Magistrate, Ist Class, Ludhiana was deputed for the purpose. According to the prosecution, Smt. Karamjit Kaur made another dying declaration before PW.11 Ashok Kapoor, J.M.I.C, Ludhiana, at about 11.40 a.m. on the same lines as made by her earlier before A.S.I. Mohinder Singh. According to the prosecution, Smt. Karamjit Kaur made another dying declaration before PW.11 Ashok Kapoor, J.M.I.C, Ludhiana, at about 11.40 a.m. on the same lines as made by her earlier before A.S.I. Mohinder Singh. Besides in her subsequent dying declaration, she also narrated the fact that the flames were doused by her husband and two boys of neighour-hood namely Tarlok Singh and Gurmit Singh and all of them after arranging a vehicle initially took her to Mission Hospital, Muktsar and then she was brought to Ludhiana and that her father-in-law was not present at the house. 4. Thereafter, on 25.7.2001 PW.7 A.S.I. Mohinder Singh took permission for digging out the dead body of Baby Kirandeep Kaur from cremation ground that it was dig out in the presence of PW.10 Gurcharan Singh Brar Tehsildar. The dead body as well the clothes, in which the dead body was wrapped, were taken into possession vide recovery memos Ex.PB and Ex.PN respectively and the dead body was sent to Civil Hospital, Ludhiana for post-mortem examination, which was conducted by PW.5 Dr. Surjit Singh Sandhu. 5. On 29.7.2001 Smt. Karamjit Kaur breathed her last. After that on 30.7.2001 autopsy on the dead body was got conducted from Dr. G.P. Mangala (PW.8). The accused-appellant was arrested on 10.8.2001 and thereafter on completion of usual formalities of investigations by PW.7 Mohinder Singh A.S.I., he presented the final report for the trial of the appellant. 6. A charge under Section 302 I.P.C. was framed against the appellant and to substantiate the same, prosecution examined PW.l Const. Angrez Singh, PW.2 Gurmit Singh, PW.3 Surjit Singh, PW.4 Surjit Singh Gill, PW.5 Dr. Sarabjit Singh Sandhu, PW.6 Dr. Shikha Aggarwal, PW.7 A.S.I. Mohinder Singh, PW.8 Dr. G.P.Mangla, PW.9 Rakesh Kumar, PW.10 Gurcharan Singh Brar, Tehsildar, PW.11 Ashok Kapoor, Judicial Magistrate Ist Class, Batala. Thereafter, the prosecution evidence was closed by the Court order. 7. When examined under Section 313 Cr.P.C, the appellant pleaded false implication. Her stand is that Karamjit Kaur and her daughter Kirandeep sustained burn injuries due to gas leakage while they were in kitchen. Karamjit was removed to hospital by her son Prem Singh and heir neighbourer Gurmeet Singh. According to her, the deceased Karamjit Kaur was tutored and she deposed against her on account of their strained relations. 8. Her stand is that Karamjit Kaur and her daughter Kirandeep sustained burn injuries due to gas leakage while they were in kitchen. Karamjit was removed to hospital by her son Prem Singh and heir neighbourer Gurmeet Singh. According to her, the deceased Karamjit Kaur was tutored and she deposed against her on account of their strained relations. 8. The appellant in her defence examined DW.I Prem Singh, her son, DW.2 Man-preet Kaur daughter of Gurmit Singh and DW.3 Gurmit Singh. 9. On conclusion of the trial, the learned trial court, as noticed above, held the appellant guilty of committing the murder of Kirandeep Kaur and Karamjit Kaur and sentenced her in the manner said above. 10. We have heard learned Counsel appearing for the appellant as well as learned State counsel at length and with their assistance have also gone through the records of the case. 11. The case of the prosecution mainly rests on two dying declarations made by deceased Smt. Karamjit Kaur on 24.7.2001 (both exhibited as Ex.PG), one before PW.7 A.S.I. Mohinder Singh at about 9.40 a.m. and the another one before PW.11 Ashok Kapoor, Judicial Magistrate Ist Class, between 11.40 and 11.50 a.m. Under Section 32 of the Evidence Act when statement is made by a person as to the cause of his/her death, as the case may be or as to in what circumstances which resulted in his/her death in cases in which the cause of death of that person comes into question, such statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. Such statement made by the deceased is called dying declaration falls in that category provided it has been made by the deceased while in a fit mental condition. There is no rule of law or rule of prudence that dying declaration cannot be accepted unless it is corroborated. However, the courts are well aware that the dying declaration must be dealt with caution for the reason that the maker of the statement has not been subjected to cross-examination. There is no rule of law or rule of prudence that dying declaration cannot be accepted unless it is corroborated. However, the courts are well aware that the dying declaration must be dealt with caution for the reason that the maker of the statement has not been subjected to cross-examination. The legal position remains unaltered that the dying declaration should be scrutinized very carefully and if the court is satisfied after such scrutiny that the dying declaration was true and was free from any effect to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on it even if without looking for any corroboration. In the instant case, no doubt both the dying declarations were made by Karamjit Kaur on 24.7.2001 and she expired on 29.7.2001, after about 5 days and as per the post-mortem report she died due to septicemia as a result of extensive burns which were sufficient to cause death in ordinary course of nature, we find no force in the argument of the counsel for the appellant that her statement was not made in expectation of death and was, therefore, not entitled to any weight. Section 32 of the Evidence Act does not require that the statement should be made only in expectation of immediate death. Thus, in view of the matter the fact that she expired after a period of 5 days is of no consequence. The genuineness of the dying declarations has also been assailed on the ground that in the certification Ex.PH/I of Dr. Anita made at 9.40 a.m. and subsequent in Ex.PG at 11.40 a.m., it was only observed that the patient is fit to give the statement and there is no certificate of the doctor certifying the state of mind of the declarant. The same is not sustainable. Anita made at 9.40 a.m. and subsequent in Ex.PG at 11.40 a.m., it was only observed that the patient is fit to give the statement and there is no certificate of the doctor certifying the state of mind of the declarant. The same is not sustainable. This controversy has now been set at rest by a Constitution Bench of Honble Supreme Court in Laxman v. State of Maharashtra, wherein it has been observed as follows: It is indeed hyper-technical view that the certificate of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit statement of mind especialy when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind.... Thus, the essentials are the fitness and the certificate of the doctor in the form of certificate and the memorandum before recording the dying declaration. A close look to both the dying declarations suggests that Dr. Anita remained present during the course of recording of the statements of Karamjit Kaur and had certified by way of endorsement Ex.PG/1 at 9.50 a.m. and other one made by her at 11.50 a.m., to this effect that the patient (Karamjit Kaur) remained fit during her statement. Apart from this, there is also evidence of PW. 11 Ashok Kapoor, the then J.M.I.C, Ludhiana, who was deputed to record the statement of Smt. Karamjit Kaur. A close scrutiny of his statement is suggestive of the fact that she made her statement voluntarily and after obtaining the certification from the doctor and after recording her dying declaration (Ex.PG), he read over the contents thereof to her and obtained her L.T.I. obviously for the reasons that except both the feet, all over her body there were deep burns, as observed by PW.8 Dr. G.P. Mangala, who conducted the postmortem examination on the dead body of deceased Smt. Karamjit Kaur. Further, it is evident from the statement of PW.11 Ashok Kapoor, J.M.I.C. that she expressed difficulty in putting her signatures. Even from her signatures appearing in the earlier dying declaration, so recorded by PW.7 A.S.I. Mohinder Singh, it looks that she had signed with great difficulty. Further, it is evident from the statement of PW.11 Ashok Kapoor, J.M.I.C. that she expressed difficulty in putting her signatures. Even from her signatures appearing in the earlier dying declaration, so recorded by PW.7 A.S.I. Mohinder Singh, it looks that she had signed with great difficulty. The learned Magistrate only would have recorded her statement after verifying and satisfying himself of her mental faculty. He is disinterested witness and a responsible officer. There is no circumstance or material on record to suspect that he had any animus against the accused or in any way interested in fabricating the dying declaration. No doubt, Dr. Anita had not been examined by the prosecution but the case file shows that she left the hospital and her whereabouts were not known and as such, the mere fact that she was not examined does not affect the evidentiary value to be attached to the dying declaration, when her certification and presence has been duly authenticated by PW.11 Ashok Kapoor, J.M.I.C. 12. A reference has been made to the statement of PW.2 Gurmeet Singh, brother of the deceased Karamjit Kaur, that he in his police statement Ex.DA, for which he was also confronted, has stated that her sister burnt herself being sick of Surjit Kaur, her mother-in-law. But the same is again of no help to the defence, in any manner. It is unlikely that he had reached the house of his sister upon second call having received from Surjit Kaur, intimating that he should take Karamjit Kaur, to Muktsar, next week. He is only a got up witness. His version that he took Karamjit Kaur to the hospital is factually incorrect, as it is apparent from the dying declaration made by Karamjit Kaur, that it was only her husband Prem Singh and neighbourers, who had admitted her in the hospital. She nowhere states in her both dying declarations about the arrival of her brother PW.2 Gurmeet Singh, in village Rupana, prior to her shifting to the hospital. What has been apprehended by the counsel for the appellant is that the deceased may not have been tutored to make a particular statement by her brother PW.2 Gurmeet Singh, is again not sustainable for variety of reasons. Firstly, it is nobodys case from the side of defence if there was any likelihood of deceased being tutored. What has been apprehended by the counsel for the appellant is that the deceased may not have been tutored to make a particular statement by her brother PW.2 Gurmeet Singh, is again not sustainable for variety of reasons. Firstly, it is nobodys case from the side of defence if there was any likelihood of deceased being tutored. Secondly, had there been any tutoring, the deceased would have also involved her husband Prem Singh along with her mother-in-law and, thirdly, DW.2 Prem Singh has himself stated that he remained with his wife throughout, in the hospital, therefore, the possibility of tutoring Karamjit Kaur is entirely ruled out. Moreover, there cannot be any rule of law that if the relations are in the company of the dying person in the hospital that dying person must necessarily be tutored to make the statement. It cannot be forgotten that the person on the verge of death is most unlikely to make untrue statement. In fact, the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the cause of circumstances leading to his/her death which are absolutely fresh in the mind and is unstained or discoloured by any other consideration except speaking truth. To our mind, in that back drop of the situation, it was highly unlikely that she would make any tutored statement. Due to shady defence that they died on account of leakage of gas in the kitchen, causing fire, cannot be read in preference to both the dying declarations, which are consistent and coherent so far the name of appellant and her participation in the commission of offence is concerned. The same is thus, inspiring confidence. 13. In view of what has been discussed above, we find no merit in the instant appeal. The same is accordingly dismissed.