Gian Kaur vs State of Punjab

S.S. Grewal, J.

This appeal is directed against the order of the Additional Sessions Judge, Jalandhar, dated 9th December, 1986, whereby Darshan Lal and Balbir alias Mauji were acquitted, whereas Gian Kaur and Balvinder Kaur accused were convicted under Section 302/34, Indian Penal Code, and each of them was sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/. In default of payment of fine each of them was directed to undergo further rigorous imprisonment for six months. Aggrieved against the said order, Gian Kaur and Balvinder Kaur accused have filed the present appeal.

In brief the facts of the case, as narrated by Darshan Lal P.W., are that his daughter Rita (deceased) was married to Balbir accused about six months prior to the present occurrence. It was a court marriage. The deceased and her husband Balbir accused startled quarrelling with each other over petty matters three or four months after marriage. Twice or thrice Rita complained to her father Darshan Lal P.W. that her husband was demanding dowry, but Darshan Lal P.W. could not afford to fulfil this demand. About 1012 days prior to the present occurrence, Balbir accused started living with his wife Rita (deceased) in a rented house, close to the house of his father Darshan Lal coaccused. On 21.6.1986 at about 6 p.m. Darshan Lal P.W. received information through Mst. Karmi (his mother''s sister), who used to reside in the vicinity of the house of Balbir accused, that Rita was set on fire. Darshan Lal P.W. accompanied by wife, immediately came to the house of Balbir accused and found that his daughter Rita with extensive burn injuries was lying in the house. She informed her parents that her in laws had set her on fire.

Darshan Lal P.W. and his wife removed Rita to Civil Hospital, Jalandhar, where she was admitted in the Emergency Ward. Ruqa (Exhibit PA) was sent at 8.45 p.m. that evening by Dr. Ajay Sahni to the S.H.O. Police Station Sadar, Jalandhar, concerning admission of Rita with 100% burn injuries and that her case was serious. On receipt of the said ruqa A.S.I. (now S.I.) Darshan Lal P.W. came to the said hospital and after ascertaining from Dr. Ajay Sahni at 9.35 p.m. that Rita injured was fit to make her statement, he recorded her dying declaration (Exhibit PJ) which was also attested by the doctor. According to the said declaration, she was set on fire at about 6 p.m. by her motherinlaw Gian Kaur accused, after her husband sister Balvinder Kaur accused sprinkled kerosene oil on her, in the absence of her husband. Her motherinlaw was not pleased with her (Rita deceased) on account of her (Rita''s) marriage with Balbir accused and her motherinlaw wanted to remarry her son (Balbir coaccused). On the basis of the statement of Rita formal first information report (Exhibit PJ/2) was recorded at the Police Station, Sadar Jalandhar, under Section 307/34, Indian Penal Code, at 10.40 p.m. Rita died in said hospital at 10.10 p.m. that very night and thereafter the offence was converted to one under Section 302, Indian Penal Code.

On the following morning A.S.I. Darshan Singh went to the hospital at about 7 p.m. He prepared inquest report and entrusted the dead body of Rita to Constables Gurdial Singh and Gurbachan Singh for postmortem examination. He inspected the spot at about 12.30 p.m. that day, took into possession some burnt pieces of clothes and other articles, including matchbox and gunny bag smeared with kerosene oil. All the accused, excepting Balvinder Kaur, were arrested on 2.7.1986, and the latter was arrested on 12.7.1986. After completion of investigation all the four accused were challaned and tried. Darshan Lal and Balbir accused were acquitted, whereas Gian Kaur and Balvinder Kaur were convicted and sentenced as indicated above.

Apart from the dying declaration, said to have been made by Rita deceased before A.S.I. Darshan Singh, the prosecution has also relied upon testimony of Darshan Lal (P.W.3), father of the deceased, and other the circumstantial evidence.

Dr. P.S. Ajena (P.W.6), who conducted autopsy on the dead body of Rita, observed that 100% burn injuries were present on whole of the body, except the sole of the feet. The burns were superficial to deep. Scalp hair were spired and the skin was peeled off at several places. Death in the opinion of the said doctor was due to burn injuries, which were sufficient to cause death in the ordinary course of nature.

The accused when examined under Section 313, Code of Criminal Procedure, denied the prosecution allegations appearing at the evidence and their relationship with the deceased. They pleaded false implication in the crime. According to Gian Kaur accused, Rita deceased used to meet Balbir accused against the wishes of her own parents and on that account their relations became strained with Rita and Court marriage between Rita and Balbir was arranged. Even after the marriage the parents of Rita did not permit her to enter their house and this caused her mental tension and she sent a message to her parents that she would commit suicide. Her parents did not pay any heed, and, because of mental tension due to the behaviour of her parents Rita committed suicide in the presence of her neighbour Bimla. All the accused denied their presence at the spot at the time of the occurrence. Bimla, while appearing as D.W. 1, supported the defence version referred to above.

We have heard the learned Counsel for the parties and scrutinised the evidence with their help.

Learned counsel for the appellant assailed the prosecution story mainly on the ground that Rita (deceased) with 100% burn injuries was not conscious or in a position to make a coherent dying declaration, as alleged by the prosecution. There is considerable merit in the contention raised by the learned Counsel for the appellants. Autopsy on the dead body reveals presence of 100% burns all over the body, except of sole of the feet. It is pertinent to note that Dr. Ajay Sahi, who certified that the said injured was fit to make her statement, admitted that there was an entry in the bed head ticket that the patient was restless and the pulse was unrecordable. This entry was made at 9.50 p.m., while A.S.I. Darshan Singh was busy in recording alleged dying declaration of Rita deceased. It is significant to note that during this period adrenal and mycoram injections were also given and the patient died in the hospital at 10.10 p.m. Bare perusal of the original statement (Exhibit PJ) said to have been made by Rita deceased, shows that it bears thumb impression with clear ridges and other characteristics. Dr. Ajay Sahni admitted that in case the thumb was burnt, there would not be any ridge on the thumb impression. He introduced for the first time that right thumb of Rita was spared, which fact does not read consistent with the postmortem report. This aspect of the case clearly indicates that Dr. Ajay Sahni is not a wholly reliable witness and has gone out of the way to help the prosecution. No implicit reliance can be placed on the testimony of this witness, either concerning his testimony that Rita deceased was fit to make her statement, or that the deceased made dying declaration (Exhibit PJ) in the presence of this witness before A.S.I. Darshan Singh. For the same reasoning, no reliance can be placed on the testimony of A.S.I. Darshan Singh that any dying declaration was made before him by Rita (deceased). Rather 100% extensive burn injuries on the body of the deceased make it highly improbable that she should be in a position to make a voluntary and coherent dying declaration.

Apart from the aforesaid evidence, the testimony of P.W.3 Darshan Lal, father of the deceased, also suffers from several infirmities. He introduced for the first time during the trial that, Rita deceased had made oral dying declaration before him that her inlaws had set her on fire. Besides this witness introduced for the first time during the trial the inlaws of his deceased daughter demanded dowry, which fact seems highly doubtful, in view of the fact that the deceased and Balbir accused had entered into a court marriage.

Besides there is no legal, cogent or reliable evidence on the record that Gian Kaur (motherinlaw) and Balvinder Kaur (sisterinlaw) were unhappy with the marriage of Balbir accused with the deceased. It also sounds highly improbable and unreasonable that within a short duration of the marriage of Balbir accused with the deceased, Gian Kaur (motherinlaw) and Balvinder Kaur (sisterinlaw) would go to the extent of setting the deceased on fire in the hope that Balbir, accused would again come under their influence and would agree to marry, according to their wishes.

For the foregoing reasons, we are of the considered view that the prosecution has not been able to being home the charge under Section 302/34, Indian Penal Code against Gian Kaur and Balvinder Kaur accused beyond reasonable doubt and giving them benefit of doubt. We set aside the order of conviction and sentence passed against Gian Kaur and Balvinder Kaur accused and hereby acquit them. This appeal is allowed accordingly.