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2010 DIGILAW 216 (PNJ)

Subhash Chander v. State Of Punjab

2010-01-11

KANWALJIT SINGH AHLUWALIA

body2010
Judgment Kanwaljit Singh Ahluwalia, J. 1. The instant appeal was instituted by Subhash Chander son of Diwan chand. In the appeal, the appellant has assailed the judgment passed by the additional Sessions Judge, Jalandhar, whereby he was convicted for the offence under Sec.306 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-. In default of payment of fine, to further undergo rigorous imprisonment for three months. 2. On 5.11.1995, Bant Singh, Assistant Sub Inspector of Police Station division No.8, Jalandhar, approached Judicial Magistrate Ist Class, Jalandhar, who, for recording dying declaration in another case, was already present in the hospital. An application Ex. PF was presented before the Judicial Magistrate Ist Class, for recording dying declaration of Sunita wife of Subhash Chander (present appellant ). Judicial magistrate Ist Class, Jalandhar, presented an application before the doctor and sought his opinion whether Sunita was fit to make statement. The application was exhibited as Ex. PG. The doctor, vide his endorsement Ex. PG/1, opined that sunita was fit to make statement. The opinion was given on 5.11.1995 at 8.20 p. M. The Judicial Magistrate Ist Class recorded dying declaration Ex. PH. The same, when translated to English, read as under:- "my marriage is 15 years old. Two daughters and two sons were born to me. My husband daily beat me. He harassed me for bringing more dowry and money from my parents. Today, at 5.00 P. M. , after pouring kerosene oil on my body and I had put myself on fire. At that time, my husband and mother-in-law were at home. I had put myself on fire because I was fed up due to beating given by my husband. When I had put myself on fire, nobody prevented me. I do not know, after I had caused fire, what had happened later. RTI Sunita". 3. This statement was concluded at 8.30 P. M. The Medical Officer appended a certificate Ex. PH/1 that the statement of the patient was recorded in his presence and the patient was unable to sign due to burn on hands, and the patient remained fully conscious throughout the statement. 4. Bant Singh, Assistant Sub Inspector, vide endorsement ex. PH/2, had sent the dying declaration to the Police station for registration of the case on 5.11.1995 at 8.40 P. M. and formal FIR ex. 4. Bant Singh, Assistant Sub Inspector, vide endorsement ex. PH/2, had sent the dying declaration to the Police station for registration of the case on 5.11.1995 at 8.40 P. M. and formal FIR ex. PH/4 was registered at Police Station Division No.8, Jalandhar, at 9.20 p. M. for offence under Sec.498-A IPC. The above said FIR was investigated. Report under Sec.173 Cr. P. C. was submitted. Judicial Magistrate Ist Class, jalandhar, on 20.1.1996 passed the order of commitment and the case was assigned to the Court of Additional Sessions Judge, Jalandhar. On 13.3.1996, additional Sessions Judge, Jalandhar, charged the appellant for offence under section 306 IPC. It was stated in the charge that on 5.11.1995 at about 5.00 p. M. in Upkar Nagar, Sunita wife of the accused, committed suicide and the appellant had abetted the same by maltreating and harassing her and therefore, he was liable to be tried for offence under Sec.306 IPC. For the above stated reasons, appellant was also charged for offence under Sec.498-A IPC. 5. The appellant pleaded not guilty and claimed trial. Prosecution examined eleven witnesses in all. 6. Pw.8 Dr. Sudesh Dadra deposed that on 5.11.1995, Sunita wife of subhash Chander was admitted in the hospital with burn injuries and the intimation Ex. PK was sent to the Station House Officer, Police Station Division no.8. This witness proved his signatures on the chit Ex. PK. 7. Pw.6 Dr. Romesh Kumar stated that on 5.11.1995 he was posted in emergency Ward, Civil Hospital, Jalandhar. He was approached by one Assistant sub Inspector and then by Judicial Magistrate Ist Class. He gave his opinion that the patient was fit to make statement. The statement of Sunita which has been reproduced above and termed as dying declaration was recorded in his presence. In cross- examination, he has stated that on that date only dying declaration of Sunita was recorded. At the time of examination of patient, she was having 95% of burns. Patient was given first aid and when the statement of Sunita was recorded, her relatives were present there. He further stated that injections Dolonex and Voveran were administered to the patient as pain relievers. 8. Dr. Gurmit Singh, Medical Officer, Civil Hospital, Jalandhar, appeared as PW.1. He stated that on 6.11.1995 at 12.45 P. M. He had conducted autopsy on the dead body of Sunita. The body emitted smell of kerosene oil. He further stated that injections Dolonex and Voveran were administered to the patient as pain relievers. 8. Dr. Gurmit Singh, Medical Officer, Civil Hospital, Jalandhar, appeared as PW.1. He stated that on 6.11.1995 at 12.45 P. M. He had conducted autopsy on the dead body of Sunita. The body emitted smell of kerosene oil. There were superficial burn injuries to the extent of 95% over the body, sparing a part of soles and small part of scalp. Singing of hair was present. Skin was peeled off at places. Yellowish protieness material was found in the deep burn injuries. Area of redness was seen at places. According to doctor, deceased had died due to hypovolemic shock due to burn injuries which were sufficient to cause death in the normal course of life. All burn injuries were ante mortem in nature. Medical evidence has been noticed above. 9. Mr. S. S. Sahni, Judicial Magistrate Ist Class, Jalandhar, appeared as pw.5. He proved recording of the dying declaration. Certificate was obtained from the doctor and certificate was also appended by him. In cross-examination, he has stated that at the time of recording of dying declaration, only Bant singh, Assistant Sub Inspector, was present. Other relatives of Sunita were not present there. Charan Singh, neighbourer of accused, appeared as PW.2. He stated that on 5.11.1995 Sunita had set herself on fire. He went to the house of accused. He was told by the accused that Sunita had set herself ablaze. Thereafter, the accused ran away from the spot. This witness further stated that on 5.11.1995 there was a dispute between the parties and he got the same settled. According to this witness, the dispute was to the effect that Subhash Chander used to take liquor and torture Sunita. Sunita told them twice or thrice that accused used to give her beatings. He stated that in his presence Subhash Chander has never stated Sunita to bring anything from her parents. This witness was confronted with his statement Ex. DA where the fact that accused used to take liquor was not mentioned. 10. Ajit Lal appeared as PW.4. He stated that Subhash Chander was married with Sunita about 17 years ago and relations between Subhash and Sunita were cordial. This witness has signed the inquest report. He admitted that sunita had died on 5.11.1995 as she had set herself on fire. 11. 10. Ajit Lal appeared as PW.4. He stated that Subhash Chander was married with Sunita about 17 years ago and relations between Subhash and Sunita were cordial. This witness has signed the inquest report. He admitted that sunita had died on 5.11.1995 as she had set herself on fire. 11. Prithi Raj, father of Sunita, appeared as PW.10. This witness stated that relations between her daughter and accused were cordial. He received a telephonic message that his daughter had died due to burn injuries. He was not told who had burnt her. He reached Civil Hospital on 6.11.1995 at about 7.00 a. M. The people of locality had told him that Sunita had burnt herself. This witness was declared hostile by the Public Prosecutor. He was confronted with his previous statement Ex. PK wherein he has stated that Sunita had died due to beating and cruel behaviour of the accused. This witness further stated that he had not paid any amount in cash twice to his daughter Sunita. He was confronted with his statement Ex. PK. 12. Remaining witnesses were examined by the prosecution to prove various facets of investigation. 13. Dalip Singh, Draftsman, appeared as PW.3. He proved scaled site plan ex. PE. 14. Ajit Singh, Sub Inspector, CIA Staff, Jalandhar, appeared as PW.7. He proved arrest of the accused and submission of report under Sec.173 cr. P. C. 15. Pw.9 Baldev Singh, Constable, tendered his affidavit Ex. PL into evidence to prove link evidence. 16. Bant Singh, Assistant Sub Inspector, appeared as PW.11. He stated various steps taken by him to get the dying declaration recorded from Judicial magistrate Ist Class, Jalandhar and thereafter follow up investigation undertaken by him. 17. After prosecution evidence was concluded, statement of accused was recorded under Sec.313 Cr. P. C. All incriminating circumstances were put to him. He denied the same and pleaded false implication. 18. In defence, two witnesses were examined. 19. Ram Parkash Bhandari appeared as DW.1. This witness stated that deceased was never harassed by the accused and Charan Singh, prosecution witness was having strained relations with the accused. 20. Paramjit Singh appeared as DW.2. He stated that accused was having cordial relations with his wife. He was on visiting terms with the family of accused. 19. Ram Parkash Bhandari appeared as DW.1. This witness stated that deceased was never harassed by the accused and Charan Singh, prosecution witness was having strained relations with the accused. 20. Paramjit Singh appeared as DW.2. He stated that accused was having cordial relations with his wife. He was on visiting terms with the family of accused. On receipt of telephonic message, he reached the hospital on the day of occurrence at about 7/7.30 P. M. He further stated that on the day of occurrence, Subhash Chander had gone out of station. 21. A peculiar feature of this case is that dying declaration Ex. PH incriminated the appellant as one who was regularly beating his wife and on the day of occurrence had also given beating which led Sunita, deceased, to commit suicide. But Prithi Raj, PW.10, father of the deceased, had absolved the appellant and has stated that relations between his daughter and the appellant were cordial. In view of this oral evidence, the Court has to appreciate the dying declaration Ex. PH. Ajit Lal, PW.4, who attested the inquest report, has also stated that relations between the appellant and his wife Sunita were cordial, whereas Charan Singh, PW.2, has stated that relations were strained as accused used to take liquor and beat his wife. 22. The trial Court held that the dying declaration was admissible under section 32 of the Indian Evidence Act, 1872 . Deceased has spoken the truth in her statement Ex. PH recorded by Judicial Magistrate Ist Class. Due to cruelty, torture and maltreatment caused to her by the accused, she committed suicide. The appellant was present at the spot and has not made any attempt to save his wife. Thus, the trial Court concluded as under:- "the dying declaration, made by Sunita, is fully reliable, and even without any corroboration, it can be acted upon. From the evidence on record, and the circumstances of the case, it is proved that the accused abetted the commission of suicide by sunita (deceased ). The accused, thus, committed an offence, punishable under Sec.306 IPC". I have heard Mr. G. S. Sandhawalia, Advocate, appearing for the appellant and mr. A. S. Jatana, Additional Advocate General, Punjab, appearing for the State. 23 Counsel for the appellant contended that dying declaration Ex. The accused, thus, committed an offence, punishable under Sec.306 IPC". I have heard Mr. G. S. Sandhawalia, Advocate, appearing for the appellant and mr. A. S. Jatana, Additional Advocate General, Punjab, appearing for the State. 23 Counsel for the appellant contended that dying declaration Ex. PH will be discarded and reliance should be placed upon the testimony of Ajit Lal, pw.4 and Prithi Raj, PW.10, father of the deceased. Counsel has further stated that at the time when dying declaration was recorded, relations of Sunita were present, deceased was prompted and Ex. PH is not truthful account of what had happened. The manner of recording of dying declaration was also assailed. 24. Having examined the evidence, this Court is not inclined to accept the arguments advanced by counsel for the appellant. The deceased had died due to burn injuries. She has received burn injuries in the house of accused. Judicial Magistrate Ist Class, Jalandhar, who recorded the dying declaration has stated that at the time when the same was recorded relations of the deceased were not present. A certificate to this effect has been also appended by the Judicial Magistrate Ist Class. The dying declaration was recorded in the presence of the doctor. Two independent witnesses have proved dying declaration. In these circumstances, no corroboration is required and it has been rightly held by the trial Court, dying declaration can be relied upon. PW.4 Ajit Lal and PW.10 Prithi Raj, father of the deceased, were not present at the spot. The beating caused by the appellant led deceased to commit suicide. It was not a stray incident of beating. Dying declaration reveal that accused used to beat his wife regularly. At this stage, counsel for the appellant has submitted that the appellant has suffered a protracted trial. The occurrence had taken place in the year 1995. For a period of 14 years, appellant has suffered agony and pain of the trial. Therefore, the same be considered as a mitigating circumstance for reduction in the sentence. I find merit in this contention. The substantive sentence of five years is reduced to three years rigorous imprisonment, maintaining the sentence of fine and the default clause. 25. With these modifications in the sentence, present appeal is dismissed.