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2010 DIGILAW 714 (PNJ)

Satpal Singh v. State Of Punjab

2010-01-29

HEMANT GUPTA, JASWANT SINGH

body2010
Judgment Jaswant Singh, J. 1. This appeal has been filed by accused Satpal Singh and Balbir Kaur, the husband and mother-in-law against the judgment and order dated 16.3.2002 passed by learned Additional Sessions Judge, Gurdaspur convicting them for murder of deceased Joginder Kaur and sentencing them to undergo imprisonment for life and to pay a fine of Rs.5000/- each and in default of payment of fine further rigorous imprisonment for one year each under Sec.302 read with Sec.34 IPC. 2. Fir Ex. PD was lodged with Police Station, Sadar Gurdaspur by the investigating Officer ASI-Harbans Singh (PW13) on 26.9.1996 at 10.30 PM on the basis of the statement got recorded by smt Joginder Kaur (since deceased) before Sh. Jagdeep Singh, Tehsildar-cum-Executive Magistrate, Ludhiana (PW11) on 25.9.1996 at 4.15 PM in Room No.2202, ward No.14 at CMC Hospital Ludhiana while undergoing medical treatment for severe burns and after having been declared fit to make statement by Dr. Gurinder Singh (PW2 ). Joginder Kaur stated in her statement (Ex. PQ) that she was living with her husband (accused Satpal) at Village Ghot Pokhar District gurdaspur and on 24.9.1996 (Tuesday) at about 9.00 AM, when she came back in the house after leaving her elder son in the school, her mother-in-law Balbir kaur quarrelled with her and gave her abuses while saying that she always remained sitting idle and never does any work. Her mother- in-law also hurled abuses taking names of her parents and sisters. Her husband Satpal Singh, who was present in the house at that time started beating her and he struck something with force on her head with the result, she fell down on the ground and became unconscious. Thereafter, she could not know as to who set her on fire. Her father-in- law Jhanda Singh and her sister Amarjit Kaur, who is also married in the same village, removed her to the Civil Hospital, Gurdaspur. When she became fully conscious, she came to know that she had been badly burnt. She further stated that members of her parents family got her admitted in CMC, ludhiana on 24.9.1996 in the evening at 6.30 PM. Joginder Kaur affixed her signatures in English. 3. After recording of the statement on 25.9.1996 at 4.15 PM, FIR was formally recorded on 26.9.1996 at 10.30 PM under Sec.307/34 IPC and reached the Illaqa Magistrate at 5.15 AM on 27.9.1996. Joginder Kaur affixed her signatures in English. 3. After recording of the statement on 25.9.1996 at 4.15 PM, FIR was formally recorded on 26.9.1996 at 10.30 PM under Sec.307/34 IPC and reached the Illaqa Magistrate at 5.15 AM on 27.9.1996. Offence was converted to Sec.302/34 IPC on the death of Smt Joginder Kaur in the hospital on 2.10.1996 at 1.00 AM. 4. After the conduct of the inquest, dead body was moved to Civil Hospital ludhiana for its post mortem examination, which was conducted by Dr. Gagandeep (PW9) along with Dr. Kulwant Singh Boparai on 2.10.1996 itself at 4.00 PM. The cause of death was found to be due to shock as a result of extensive burns and septicemia. Both the accused were arrested on 8.10.1996 from their house and on their interrogation, accused Satpal in view of his disclosure statement got recovered a Ghotna whereas accused Balbir Kaur in pursuance of her disclosure statement got recovered a box of kerosene oil. After completion of investigations, both the accused were challaned and charged for the offence of murder punishable under Sections 302 read with Sec.34 IPC. 5. Prosecution, to prove their case, relied upon dying declaration (Ex. PQ) made before the Executive Magistrate as also eye witness account of PW6-Rattan Singh (husband of sister of deceased Joginder Kaur residing in the same village)further corroborated by PW7 Partap Singh (father of deceased Joginder Kaur ). In all 14 prosecution witnesses were examined besides leading documentary evidence from Ex. PA to Ex. PQ. 6. Accused Balbir Kaur in her statement recorded under Sec.313 Cr. P. C stated that Joginder Kaur had accidently got fired while working on stove and that she also got her fingers burnt while trying to extinguish the fire whereas accused Satpal Singh stated that he was not present in house at the time of occurrence and that he had spent a sum of rs.60000-70000/- on her treatment and had good relations with his wife. In defence, Mahinder Singh DW1 was produced to show that Smt Joginder Kaur while being removed to Civil Hospital, Gurdaspur from the place of occurrence in his taxi had stated that she had got injured/burnt due to bursting of the stove. 7. In defence, Mahinder Singh DW1 was produced to show that Smt Joginder Kaur while being removed to Civil Hospital, Gurdaspur from the place of occurrence in his taxi had stated that she had got injured/burnt due to bursting of the stove. 7. Learned trial Court did not accept the eye witness account of PW6-Rattan singh residing in the same village on the ground that he allegedly having seen the occurrence did nothing to intervene when the accused were assaulting the deceased and also did not report to the police about the incident. It was also found that the deceased Joginder Kaur had not stated in her dying declaration about the presence of Rattan Singh and his wife at the time of the occurrence. Testimony of Partap Singh (PW7), who is the father of the deceased, was also rejected for not having disclosed the deposed facts in his statement (Ex. DB) recorded under Sec.161 Cr. P. C to the police although as per his version in court, he had been told by her daughter that Balbir Kaur sprinkled kerosene oil and accused Satpal Singh set her on fire. Testimony of both witnesses has been held to be not reliable and thus not worthy of any credence. However, learned trial Court found the dying declaration to be voluntary and reliable thereby recording a finding of the guilt of the accused persons, as per the prosecution case having been proved beyond reasonable doubt and thereby convicting and sentencing them as aforesaid. 8. Learned counsel for the appellants has contended that the learned trial court has gravely erred in accepting the dying declaration Ex. PQ being true and voluntary by ignoring other relevant facts and circumstances proved on record, which render it wholly unsafe to be relied on. In support of his argument, learned counsel has referred to the fact that the deceased Joginder Kaur refused to give her statement on the day of the occurrence itself despite being fully conscious and fit to do so at Civil Hospital, Gurdaspur as proved by the dr. Daljit Singh (PW14 ). Further PW1-Dr. Dr. Ajit G. Varghese has proved on record that Joginder Kaur (since deceased) herself informed that she had suffered flame burns from the accidental bursting of stove while cooking at home. 9. It was further submitted that the Dying Declaration Ex. Daljit Singh (PW14 ). Further PW1-Dr. Dr. Ajit G. Varghese has proved on record that Joginder Kaur (since deceased) herself informed that she had suffered flame burns from the accidental bursting of stove while cooking at home. 9. It was further submitted that the Dying Declaration Ex. PQ recorded on the evening of the next day was a result of the intervention, tutoring and prompting by the relatives of Joginder Kaur (since deceased) and, therefore, it cannot be made the sole basis for conviction of the appellants. Learned counsel also informed us that the appellant Balbir Kaur has, during the pendency of the appeal, died on 11.11.2009. On the other hand, learned state counsel has supported the reasoning of the learned trial Court. 10. After hearing learned counsel for the parties and perusing the evidence on record, we are of the opinion that the contentions raised on behalf of the appellants deserve to be accepted. 11. Honble the Supreme Court in a recent case reported as Sukanti Moharana V/s. State of Orissa 2009 (4) RCR (Criminal) 119 following a judgment of five Judges bench in Laxman V/s. State of Maharashtra 2002 (4) RCR (Criminal) 149 has summed up the law relating to evidential value of dying declaration. It has been, inter alia, held that the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. 12. Story which emerges from the record is that the incident took place on 24.9.1996 at 9.00 AM at the matrimonial house of Joginder Kaur in village Ghot pokhar and after arranging for the conveyance (taxi of DW1 Mohinder Singh),she was removed to Civil Hospital, Gurdaspur by her father-in-law Jhanda Singh and her sister Amarjit Kaur. She was medicolegally examined by PW14-Dr. Daljit singh, posted as Medical Officer, Civil Hospital, Gurdaspur at 12.30 PM, who found Superficial to deep burns present all over the body except over scalp, below mid thigh both legs, right palm, small area of left palm and extent of burns about 75%. He also stated that there was no other injury present over the body. In his cross examination, he has specifically stated that the patient was fully conscious and fit to make statement at 1.40 PM on 24.9.1996 but she refused to make statement about the occurrence. Statement to that effect is ex. He also stated that there was no other injury present over the body. In his cross examination, he has specifically stated that the patient was fully conscious and fit to make statement at 1.40 PM on 24.9.1996 but she refused to make statement about the occurrence. Statement to that effect is ex. PS as recorded by ASI Harbans Singh (PW13 ). These circumstances, in our opinion, would show that if the accused-appellants were involved in the incident, she would not have hesitated in naming them. It has to be noticed that injured Joginder Kaur and accused Satpal singh had been married in the year 1990 (as deposed by her father Partap Singh-PW7) and there is no previous allegation of her being harassed or treated with cruelty either by the accused Satpal Singh or members of his family. 13. Injured Joginder Kaur due to her worsoning condition was referred the same evening to CMC Hospital, Ludhiana and it has come on record that the husband accused Satpal Singh was involved in shifting her to said hospital. PW1-Dr. Ajit g. Varghese has deposed that the injured Joginder Kaur was treated by him in the casuality ward on 24.9.1996 at 6.30 PM and the cause of burn injuries was reported by the injured Joginder Kaur herself that the alleged burns had been caused by bursting of stove at 9.00 AM on that day while cooking. He further deposed that except flame burns, there was no other injury on the person of joginder Kaur and further according to the assessment form of CMC Hospital, it was agreed by Satpal Singh (accused) to bear the expenses of Joginder Kaur, which was Rs.35,000/- and an advance of Rs.7000/- was paid by him. Cross examination could not shatterthe version of PW1. It is apparent from Ex. PA/1 and Ex. PA/2 as proved by the testimony of PW1 that the injured Joginder Kaur being conscious and fully oriented had herself given the cause of her burns to be accidental. 14. The evidence of DW1 Mahinder Singh, in whose taxi said injured Joginder kaur was shifted to Civil Hospital, Gurdaspur, also corroborates this version, which, to our mind, deserves equal treatment. 15. Dying declaration (Ex. PQ) on which basis the conviction has been passed by the learned trial Court was recorded by PW11- Jagdeep Singh, Tehsildar-cum-Executive Magistrate, Ludhiana. 14. The evidence of DW1 Mahinder Singh, in whose taxi said injured Joginder kaur was shifted to Civil Hospital, Gurdaspur, also corroborates this version, which, to our mind, deserves equal treatment. 15. Dying declaration (Ex. PQ) on which basis the conviction has been passed by the learned trial Court was recorded by PW11- Jagdeep Singh, Tehsildar-cum-Executive Magistrate, Ludhiana. He had been deputed on the application of the local police of Ludhiana (and not Gurdaspur ). Application was moved by PW12-SI veerrajinder Pal-SHO Police Station Division No.3, Ludhiana in view of the fact that no police officer from Gurdaspur had approached him and the condition of the patient was serious. He has admitted that the information regarding ruqa received from CMC Hospital had been sent to SHO, Police Station Gurdaspur as she was resident of Gurdaspur. In his cross-examination, he has admitted that the intimation received from CMC Hospital was not entered in the roznamcha as it did not concern his police station. He further admitted that the relatives of the deceased came to him and asked to get the statement of the injured joginder Kaur recorded as she was serious. He also admitted that he did not verify whether the deceased was fit to make statement. PW11- Jagdeep Singh has admitted that the statement (Ex. PQ), which is in the narative form, was recorded after having put only one question to injured Joginder Kaur "as to what had happened with her". He, in his cross examination, has also stated that "all the persons, who were present by her side, were asked to leave the room" and except this no other precaution was taken. It was neither recorded that she had been asked to make a statement voluntarily without any pressure nor his status explained to her. Thus, in these circumstances, it is obvious that the persons, who were surrounding the injured Joginder Kaur around the time, statement/dying declaration (Ex. PQ) was made, were members from her parents family and their influence is reflected from the last sentence of statement (Ex. PQ) "that they had brought her to CMC hospital, Ludhiana for admission in Civil Hospital, Gurdaspur whereas this association is contradicted by record of CMC, Ludhiana proved by Dr. Ajit G verghese that she was got admitted on 24.9.1996 in CMC by her husband Satpal singh, who had undertaken to bear the expenses and paid the initial amount of rs.7000/-. PQ) "that they had brought her to CMC hospital, Ludhiana for admission in Civil Hospital, Gurdaspur whereas this association is contradicted by record of CMC, Ludhiana proved by Dr. Ajit G verghese that she was got admitted on 24.9.1996 in CMC by her husband Satpal singh, who had undertaken to bear the expenses and paid the initial amount of rs.7000/-. These circumstances, in our view, render the alleged dying declaration (Ex. PQ) of the deceased as inherently infirm and unsafe to be accepted as depicting the true version of the incident. 16. In our analysis of the evidence on record, keeping in view the law laid down by Honble the Supreme Court in Sukanti Moharanas case (supra), the aforesaid circumstances taken cumulatively clearly indicate that the injured joginder Kaur has made the statement inculpating the accused-appellant after having been tutored, prompted and instigated by the members of her family from the parents side, who admittedly, were present there. 17. In view of the aforesaid discussion, in the facts of the case, in our considered opinion, dying declaration Ex. PQ cannot constitute the sole basis for recording the conviction of the accused-appellants in the absence of any other reliable and trustworthy corroborative evidence. Thus, the benefit of doubt has to go to the accused-appellants. Therefore, the present appeal qua appellant No.1-Satpal Singh is allowed, judgment and order dated 16.3.2002 passed by learned Additional sessions Judge, Gurdaspur is set aside and he is acquitted of the charges framed against him; qua appellant No.2, in view of her death on 11.11.2009, appeal stands abated.