Avtar Lal st vs Punjab State

M.L. Singhal, J.

Prosecution case in brief is that Smt. Sukhwinder Kaur alias Kamlesh daughter of Ram Saran of village Maheru, Police Station, Phagwara was married to Avtar Lal son of Darshan Lal of village Beas Pind Police Station Adampur, 6/7 years prior to 6/1993. Smt. Dhandeviappellant is Avtar Lal''s mother i.e. Sukhwinder Kaur''s motherinlaw. After marriage, Sukhwinder Kaur''s relations with her husband and motherinlaw became strained. There had been frequent quarrels between her on the one hand and her motherinlaw and husband on the other hand and they used to tell her that they would not keep her in the matrimonial home. Her motherinlaw Dhandevi and sisterinlaw Avtar Kaur used to give beatings to Smt. Kashmiro wife of younger son of Dhandevi. She was turned out of the matrimonial home. Smt. Dhandevi used to exclaim that "turn Sukhwinder Kaur out of the matrimonial home and she would bring a new wife for her son Avtar Lal the very following day." She had been telling her mother, uncle (chacha) Charanjit and taya Karam Chand, cousins and brother Bishamber of their treatment towards her. For quite some time she used to put up with her parents as a sequel to their illtreatment towards her. Her inlaws brought Panchayat to her parents. Panchayat made entreaties to them. She was sent to the matrimonial home in the wake of rapprochement brought about by the Panchayat. She had come to the matrimonial home a month prior to the fateful day. On the fateful day i.e. 26.6.1993 there had been quarrel between her on the one hand and her motherinlaw on the other hand as she had given Rs. 5/ to her son who had spent that amount. Her husband came to the house in the night of 26.6.1993. Her motherinlaw and husband first pulled her hair and picked up quarrel with her and thereafter they poured kerosene and set her ablaze at about 11.00 p.m. She raised alarm. People came who poured water on her for extinguishing fire. She was taken to Civil Hospital, Jalandhar at about 3.00 a.m. on 27.3.1993. On receipt of ruqa Ex. P.C. from Civil Hospital, Jalandhar regarding the admission of a burn case in Civil Hospital, Jalandhar, ASI Harjit Singh along with Sh. S.S. Bains, Executive Magistrate, Jalandhar reached Civil Hospital, Jalandhar. After the doctor had opined on the request of ASI Harjit Singh (whether Smt. Sukhwinder Kaur alias Kamlesh was fit to make statement) that she was fit to make statement, Sh. S.S. bains, Executive Magistrate, Jalandhar recorded statement Ex. PD of Smt. Sukhwinder Kaur alias Kamlesh. Statement Ex. P.D. was in the nature of `dying declaration''. It completed at 4.00 p.m. It was attested by Sh. S.S. Bains, Executive Magistrate, Jalandhar. It was attested by ASI Harjit Singh. Dr. S.K. Sharma gave certificate Ex. PD/1 on this statement that she was fit to make statement. After statement was over it was signed by her. Dr. S.K. Sharma again gave certificate Ex. PD/2 that she remained conscious and fit throughout her statement and he was present throughout when her statement was being recorded. On the basis of statement Ex. PD case FIR No. 51 was registered at Police Station, Adampur under Section 307/34 of the Indian Penal Code vide formal FIR Ex. PG/1. On 3.7.1993 at 4.15 p.m. Smt. Sukhwinder Kaur alias Kamlesh expired due to burn injuries. Offence was, therefore, converted into one under Section 302 Indian Penal Code. In this behalf DDR No. 18 was recorded at Police Station, Adampur. Autopsy on the dead body was performed on 4.7.1993 by Dr. S.K. Sharma, Medical Officer, Civil Hospital, Jalandhar who noticed first and second degree burns all over the body, peeling of skin was present at places, infected burn wounds containing pus were present at several places. Ointment whitish in colour was present all over the body. He noticed singeing of hair of skull, eye brows, eye lashes, pubic hair and arm pit hair was present. 1" stitched wound was present on the medial aspect in the lower 1/3rd right leg (site of venesection).

All the injuries were antemortem in nature. In his opinion, the cause of death was septicaemia and dehydration due to extensive burn injuries which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was within 7 days and probable time that elapsed between death and post mortem was 24 hours. After investigation, Avtar Lal and his mother Dhan Devi were challaned under Section 302/34 of the Indian Penal Code.

Case was committed to the Court of Session by Chief Judicial Magistrate, Jalandhar vide order dated 20.9.1993.

Additional Sessions Judge, Jalandhar charged Avtar Lal and Dhandevi under Section 302/34 Indian Penal Code vide order dated 20.10.1993. Accused pleaded not guilty to the charge and claimed trial.

For sustaining the charge levelled by the prosecution against the accused, prosecution examined Amar Chand PW 1, Smt. Jagiro (mother of Smt. Sukhwinder Kaur alias Kamlesh) PW 2, ASI Raunki Dass PW 3, Sh. Natha Singh, SHO Police Station Adamput PW.4, Dr. S.K. Sharma, Medical Officer, Civil Hospital, Jalandhar PW 5, Sh. S.S. Bains, Executive Magistrate, Jalandhar PW 6, ASI Harjit Singh (who investigated the case) PW 7 and Dalip Singh, Draftsman New Courts, Jalandhar PW 8. Chaman Lal, Manjit Singh, Chanda Ram, Bishamber, Charanjit and Constable Joginder Singh were given up as unnecessary. Mohinder Lal PW was given up as won over by the accused.

The circumstances appearing in prosecution evidence were put to the accused as required by Section 313 of the Code of Criminal Procedure and they denied the genuineness of every incriminating circumstance appearing in prosecution evidence against them and stated that it was a false case against them. It was stated that Avtar Lal had cordial and affectionate relations with his wife. He used to part handsome amount to enable her to run the household and meet other requirements. She had her own bank account in State Bank of India, Beas Pind bearing No. 20/13486. On the night of 26.6.1993, he was lying in the bedroom along with his son. His mother was putting up separate from them. His wife went to the kitchen for bringing milk for the child. On hearing her shrieks, he rushed to the spot. His mother also came there. They saw her having caught fire. He and his mother made every effort to extinguish fire. They arranged her removal to Civil Hospital, Jalandhar in no time. They sent message to her parents. He and his mother took her to the Hospital. In the meantime, her mother, uncle and cousins namely Manohar Lal and Bishamber reached there. She was got admitted in the Hospital. On his query, she replied that she was not in a position to show her face to anybody. Firstly ASI came to the Hospital who recorded her statement wherein she had stated that she had caught fire accidentally while she was heating milk for her child. He attended her in the Hospital all along, arranged medicines for her. He had gone to Libya and returned from there in May, 1993. Her mother and uncle wanted to extort money and they manoeuvred some statement of her. He never made any demand for dowry on her and on her parents. In their defence, they examined Sh. Y.P. Chhabra, Assistant Manager, State Bank of India, Beas Pind DW 1.

At the conclusion of the trial, learned Additional Sessions Judge, Jalandhar found the charge proved against both the accused. He accordingly convicted them thereunder and sentenced them to undergo imprisonment for life and to pay fine of Rs. 2,000/ each or in default of payment of fine to undergo further rigorous imprisonment for two years.

Avtar Lal and Dhandeviappellants have knocked the door of this court through this criminal appeal namely Criminal Appeal No. 362DB of 1995 whereby they have prayed that they have been unjustly convicted and sentenced and therefore their appeal be accepted, their conviction and sentence be set aside and they be acquitted.

In this case "dying declaration" said to have been made by Sukhwinder Kaur alias Kamlesh is the sole circumstance on which conviction has been based by the learned Additional Sessions Judge, Jalandhar. In the dying declaration said to have been made by her, there is not even shred of allegation of any demand for money having ever been made on her by her husband or motherinlaw and, therefore, we are not required to go into the statement of Amar Chand PW 1 and Smt. Jagiro PW 2 who have imputed that after marriage relations of Avtar Lal and Dhandevi with Sukhwinder Kaur had become strained because of her inability to satisfy their demand for money and the consequent beating of Sukhwinder Kaur by them. Smt. Sukhwinder Kaur had stated only this much in the alleged dying declaration that there was a quarrel between her on the one hand and her motherinlaw on the other hand as she had given 5 rupees to her child which he had spent. When her husband came to the house at night, her motherinlaw and her husband first pulled her hair and then picked up row with her and, thereafter both of them poured kerosene on her and set her ablaze. She raised alarm as a result of which people came there. They put water on her for extinguishing fire. She had further stated that there had been quarrels between her on the one hand and her motherinlaw and her husband on the other hand, they used to proclaim that they would not keep her. Her sisterinlaw i.e. the wife of her husband''s younger brother had also been turned out by her motherinlaw and sisterinlaw (i.e. her husband''s sister). Her motherinlaw used to exclaim that she should also be turned out and that she would bring another wife for her son the following day. She had stayed with her parents many times in the wake of those quarrels and the exclamation of her motherinlaw. Statements of Amar Chand and Smt. Jagiro, in so far as they have stated that the cause of estrangement was their demand for Rs. 20,000/ and her inability to fulfil their demand is sheer improvement on the version of the alleged dying declaration and as such cannot be taken into account.

In this case, the sole piece of evidence is "dying declaration" said to have been made by Smt. Sukhwinder Kaur @ Kamlesh incriminating Avtar Lal and his mother.

Dying declaration was made by her before Shri S.S. Bains, Executive Magistrate, Jalandhar PW 6 in the presence of ASI Harjit Singh PW 7 and Dr. S.K. Sharma, PW 5. Shri S.S. Bains, Executive Magistrate, Jalandhar recorded the statement/dying declaration of Smt. Sukhwinder Kaur @ Kamlesh after the doctor had certified that she was fit to make statement. Doctor gave certificate at the foot of the statement/dying declaration of Smt. Sukhwinder Kaur that she remained conscious throughout her statement was being recorded. He was present throughout during the recording of her statement. Her statement was attested by ASI Harjit Singh. It was attested by doctor as well as by the Magistrate. Her statement purports to have been signed by her in Punjabi. It was submitted by the learned counsel for the appellants that no value should be attached to the socalled statement/dying declaration of Smt. Sukhwinder Kaur as the same was not spontaneous and the same appears to have been made by her under the influence of her mother. Suffice it to say, Smt. Jagiro PW 2 stated that they received message at about 7 p.m. of the following day and they reached the hospital at about 9 p.m. Statement/dying declaration is said to have been recorded at 4.45 p.m. on 27.6.1993 i.e. before the arrival of Smt. Jagiro in the hospital. It was suggested to Smt. Jagiro that they had received message at about 12.30 night of 2627.6.1993 and she denied this suggestion. No effort was made by the defence to show that Smt. Jagiro had arrived in the hospital soon after 12.30 in the night of 2627.6.1993 so that we could infer that she might have influenced the making of that statement by Smt. Sukhwinder Kaur. It has not been shown by the defence that there was any acrimony between the relations of Avtar Lal and his inlaws so that it could be imputed to his inlaws that the said statement was the result of sheer malice and spite on their part towards Avtar Lal and his mother.

It was submitted by the learned counsel for the appellants that Shri S.S. Bains, Executive Magistrate, Jalandhar PW 6 is a person of dubious character and as such should not be believed. There was a corruption case registered against him. Registration of corruption case impinged upon his integrity. Suffice it to say, there may have been a corruption case against Shri S.S. Bains PW 6 but there is nothing on the record to suggest that he had any animus against Avtar Lal and his mother. There is nothing on the record to suggest that he was under the influence of ASI Harjit Singh and that he fabricated the statement/dying declaration of Sukhwinder Kaur @ Kamlesh. Dr. S.K. Sharma PW 5 was also there. He also attested the dying declaration. Why should he have fallen in line with the Magistrate and the Investigating Officer in the fabrication of the said statement ? admits of no answer.

It was submitted by the learned counsel for the appellants that no application was made to this Magistrate by ASI Harjit Singh that he should record the statement of Sukhwinder Kaur who was nearing death. Normally, an application is made either to the District Magistrate or the Additional District Magistrate for deputing a Magistrate or any other officer for recording the dying declaration. It was submitted that in this case, Shri S.S. Bains was not deputed either by the District Magistrate or the Additional District Magistrate for recording the statement of Sukhwinder Kaur. ASI Harjit Singh PW 7 stated that he took Shri S.S. Bains, Executive Magistrate with him to the hospital. Shri S.S. Bains was Duty Magistrate that day. In this case, the statement/dying declaration alleged to have been made by Smt. Sukhwinder Kaur has been supported by Shri S.S. Bains PW 6, Dr. S.K. Sharma PW 5 and ASI Harjit Singh PW 7. It cannot be believed that they all joined hands and wove a net to trap Avtar Lal and his mother. Dr. S.K. Sharma PW 5 has categorically stated that the dying declaration was recorded by Shri S.S. Bains, Executive Magistrate after obtaining his opinion that Sukhwinder Kaur was fit to make statement and he remained present throughout till the recording of the dying declaration was over and after the recording of dying declaration was over, he gave certificate that she remained conscious throughout when her statement was being recorded.

It was submitted by the learned counsel for the appellants that the prosecution has not produced any evidence that she was medically examined on her arrival in the hospital. If the prosecution had produced evidence showing that she had been medically examined on her arrival to the hospital, the Court could have appreciated as to what was the percentage of burns; whether she was conscious and in a position to make statement. Suffice it to say, Dr. S.K. Sharma gave opinion that she was fit to make statement at the time when Shri S.S. Bains, Executive Magistrate proceeded to record her statement. This opinion provides complete answer to this submission made by the learned counsel for the appellants. If Smt. Sukhwinder Kaur were not in a position to make statement, doctor would not have certified that she was fit to make statement and the Magistrate would not have recorded her statement.

It was submitted by the learned counsel for the appellants that there could be no animosity between Sukhwinder Kaur, her husband and her motherin law because Smt. Sukhwinder Kaur had opened an account in the Bank of India at village Bias Pind and Avtar Lal had been giving her money and she had been putting that money in that account. In support of this submission, our attention has been drawn to her account ledger sheet Ex. DB. Suffice it to say, the pouring of kerosene on her by Avtar Lal and his mother was not the result of any calculation/preplanning on their part. It happened on the spur of the moment and the next moment they set her on fire. It was under these circumstances that kerosene was poured on her and she was set ablaze by them and, therefore, the fact that Avtar Lal had been giving her money which she had been putting in her account in the bank pales into insignificance.

It was submitted by the learned counsel for the appellants that Smt. Sukhwinder Kaur @ Kamlesh was not in a position to make such a longwinded statement. Smt. Jagiro PW has stated that she had murmured something which she did not understand. Suffice it to say, Smt. Jagiro has stated that they arrived in the hospital at about 9 p.m. on 27.6.1993. No wonder, her condition deteriorated at about 9 p.m. and she murmured something which her mother did not understand. It would bear repetition that Dr. S.K. Sharma, Shri S.S. Bains and ASI Harjit Singh PWs have stated with one voice that she was fully conscious and she made that statement in a state of absolute consciousness.

It was submitted by the learned counsel for the appellants that in fact ASI Harjit Singh had recorded the statement of Sukhwinder Kaur. He destroyed that statement because that statement did not incriminate any of the accused. Suffice it to say, there is nothing on the record to suggest that ASI Harjit Singh had recorded any such statement. ASI Harjit Singh denied this suggestion that he had recorded any such statement.

It was submitted by the learned counsel for the appellants that ASI Harjit Singh did not join anyone from the vicinity in the investigation. As such the investigation made by him is biased, partial and onesided. Suffice it to say, he has stated that he did make inquiries from the residents of the neighbouring houses but nobody came forward to make statement. That was natural also because Avtar Lal and his mother are their neighbours. How could they depose against their neighbours ?

It was submitted by the learned counsel for the appellants that clothes worn on the dead body were not sent for chemical examination. If they had been sent for chemical examination and the chemical examiner had found no kerosene in them, the absence of kerosene would have impinged upon the truth/genuineness of the prosecution case and that would have supported the defence version that she caught fire while heating milk for the child. Suffice it to say, the presence of kerosene in the clothes worn on the dead body, if found by the chemical examiner, would have lent corroboration to the prosecution story. In this case, there is dying declaration. Question for our appreciation is whether dying declaration alone should be believed or the court should look for some corroboration to the dying declaration. It would bear repetition that in this case, dying declaration has been recorded by the Magistrate which is supported by the doctor and the investigating officer. Corroboration to the dying declaration is not the requirement of law. The dying declaration which has been recorded by the Magistrate in the proper manner in the form of question and answer and in the words of the maker stands on much better footing than a dying declaration which depends upon oral testimony. In State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416 the Hon''ble Supreme Court held that there is not even a rule of prudence which is hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true; if it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration."

In Khushhal Rao v. State of Bombay, AIR 1958 SC 22, the Hon''ble Supreme Court held that if dying declaration is believed, it can be relied upon for convicting the accused even if there is no corroboration. This view was reiterated in Tara Chand Damu Sutra v. State of Maharashtra, AIR 1962 SC 130 and Munnu Raja v. State of Madhya Pradesh, AIR 1976 SC 2199 that a person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact, the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the Evidence Act attaches a special sanctity to a dying declaration.

In this case, in our opinion, this stands proved beyond the pale of any doubt that Sukhwinder Kaur made the aforesaid statement when she was nearing death incriminating her husband and motherinlaw when she was in full state of consciousness recorded by the Magistrate, attested by him, Dr. S.K. Sharma and the investigating officer. Dying declaration is truthful, it does not require any corroboration.

For the reasons given above, we do not find any force in this appeal. We accordingly dismiss this appeal, maintain the conviction and sentence passed upon the appellants.