Jamna Kaur and anr. vs State of Punjab

N.K. Kapoor, J.

The challenge here is to the judgment of the learned Additional Sessions Judge, Jalandhar, dated 4th July, 1989, whereby appellants Jamna Kaur and Kartar Kaur were convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/ each or in default thereof to undergo further rigorous imprisonment for six months.

The case of the prosecution, in brief, is as under :

"Accused Chanda Singh (since acquitted), his wife Jamna Kaur, their daughter Kartar Kaur and Babli (since acquitted) their near relative, entered into conspiracy on 27th March, 1988, at about 5 p.m. at the house of Kartar Kaur in Basti Mithu, Jalandhar, to commit the murder of Kuldip Kaur, daughter in law of Kartar Kaur and that in pursuance of that conspiracy murder of Kuldip Kaur was committed by Jamna Kaur and Kartar Kaur by putting her on fire after sprinkling kerosene oil on her in a room of the house which was closed from outside. Kuldip Kaur succumbed to the injuries in Civil Hospital, Jalandhar, on 12th May, 1988."

The First Information Report Exhibit PE/4 was registered on the basis of the dying declaration Exhibit PF of Kuldip Kaur which was recorded by Mr. H.B. Lall, Executive Magistrate, in the Emergency ward of the Civil Hospital, Jalandhar, where Kuldip Kaur was admitted on 27th March, 1988, at 6.05. Statement of Kuldip Kaur Exhibit PF was recorded in Punjabi in Gurmukhi script. Its English translation is as under :

"My parents are of Samana, district Bhatinda. About nine months back was married to Kuldip Singh son of Krishan Singh, resident of Basti Mithu. My maternal aunt Surjit Kaur is of Jalandhar and she mediated for my marriage. After marriage, my mother in law Kartar Kaur and her mother Jamna Kaur (my maternal grand motherinlaw) used to call me `Tundi''(defective hand) and `Kaani'' (one eyed) and had been harassing me. My hand and thumb are defective. (Kuldip Kaur showed her thumb). My eye is also defective. A day before yesterday my parents had come for compromise. My husband is willing to keep me. My motherinlaw and maternal grand mother in law harassed me. My maternal grand motherinlaw came from Bhatinda day before yesterday. Today I returned at noon time after cleaning utensils in the Kothis. In the house, my motherinlaw and younger sister of my mother in law(Babli) were sitting in the house and were making consultations. When I came out with a basket full of utensils, my mother in law quarrelled with me and slapped me. I went back inside crying and slept. I was sleeping when my motherinlaw caught my arms and my maternal grand motherinlaw put `safa''(loose cloth) around my neck and she sprinkled kerosene oil and she ignited the fire. My mother in law kept holding me by arms. My maternal grand mother in law put me on fire by igniting the match stick. My arms had also been tied. After putting me on fire both of them locked the room from outside. I shrieked. Then residents of the mohalla broke open the lock and took me out. It happened at about 5 p.m. My mother and father at that time were with my mother''s sister. Residents of Mohalla called them from there and my parents and Mohallawalas (neighbourers) brought me on the tempo. I was admitted in the hospital. My body had burns for being put of fire."

Dr. Nagin Dhaliwal (PW 1) had conducted autopsy on the deadbody of Kuldip Kaur on 13th May, 1988, at 9.30 a.m. and found extensive burns involving the face, scalp, neck, front and back of chest and abdomen. Pelvis and thighs were burnt. Left and right lower legs were not burnt. Back of both thighs were also not burnt. Peeling of skin was present all over the burnt area. Total burns were 50 to 60 per cent. In the opinion of the doctor, the death of Kuldip Kaur was due to 50 to 60 per cent burns involving vital area of the body, thus resulting in hypovolaemia and neurogenic shock which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was 47 days and between death and post mortem within 24 hours.

After completion of investigation, challan against the accused was presented in Court.

At the trial, the prosecution examined Dr. Nagin Dhaliwal (PW1) Dr. Jasbir Singh Kumra (PW2). Mr. H.B. Lall, Executive Magistrate (PW3) Waryam Singh (PW4), Avtar Singh (PW5), Surjit Kaur (PW6) Roshan Lal Sub Inspector (PW7), Des raj, Draftsman(PW8) and Dr. Iqbal Singh (PW9).

Statements of the accused were accorded under section 313 of the Code of Criminal Procedure in which they denied the prosecution allegations and pleaded false implication. They, however, led no evidence in defence.

The learned Additional Sessions Judge, Jalandhar, vide judgment under appeal found no incriminating evidence against accused Chandu Singh and Babli and they were accordingly acquitted of the charge framed against them. Accused Jamna Kaur and Kartar Kaur were convicted and sentenced under section 302 read with Section 34 of the Indian Penal Code, as detailed in the opening para of this judgment. They have come up in the appeal.

We have heard Mr. P.S. Mann, Senior Advocate, the learned counsel of the appellants and Mr. S.S. Saron, the learned Deputy Advocate General, Punjab, and have carefully perused the entire evidence led in the case.

A statement, written or oral, made by a person who is dead as to the cause of his death or to the circumstances of events which resulted in his death, in cases where his death is the subject matter, is admissible under section 32 subclause (1) of the Evidence Act. Such statement is commonly termed as Dying Declaration.

In the present case, Kuldip Kaur''s statement was recorded by Mr. H.B. Lall Executive Magistrate (PW3) in the emergency ward of the hospital where she was being treated for her burns. Mr. H.B. Lall, on reaching the hospital, contacted Dr. Iqbal Singh, Senior Medical Officer(PW9) to ascertain as to whether Kuldip Kaur was fit to make a statement vide his request (Exhibit PE) made at 7.07 p.m. on 27th March, 1988. Dr. Iqbal Singh (PW9) vide his opinion (Exhibit PE/1) certified that Kuldip Kaur was fit to make statement. This opinion was given at 7.08 p.m. on 27.3.1988. Pursuant to this, statement of Kuldip Kaur was recorded by Mr. H.B. Lall who also got her thumb mark affixed (L.T.I.) on the statement. The left thumb impression was got affixed for the reason that right thumb of Kuldip Kaur was defective. Mr. H.B. Lall has further certified vide Exhibit PF/2 that Kuldip Kaur remained fit during the recording of her statement. The solitary criticism raised with regard to the dying declaration is that the same was not recorded in questionanswer form.

No specific form has been prescribed for recording of a dying declaration. All that has to be seen is that the person was found fit to make such a statement and the statement so made was without any coercion or pressure. In the present case, statement of Kuldip Kaur was recorded by the Executive Magistrate against whom no criticism of any sort has been levelled. Dr. Iqbal Singh (PW9) on examination, had found Kuldip Kaur fit to make statement. Her statement is trustworthy as she has named only the persons who were responsible for causing her burn injuries which ultimately resulted in her death. At no point of time, she accused her husband of complicily of any sort in this unfortunate episode. Thus, it appears that the statement is without any pressure and is of free will.

The learned counsel for the appellants argued that though Kuldip Kaur suffered burn injuries on 27th March, 1988, but she died on 12th May, 1988, and thus the burn injuries cannot be said to be the cause of her death. In support of his contention, the learned counsel cited Kartara and another v. State of Haryana, 1980 Punjab Law Reporter 8, in view of the peculiar facts of this case, is not applicable. In Kartara''s case (supra), the deceased was hit with a lathi on the head. The doctor had found contusion mark over the right side of the scalp and forehead. The deceased remained under treatment for a period exceeding two months and, thus, the Court taking an overall view of the fact that the death occurred long after the injury caused, converted the conviction from one under Section 304 of the Indian Penal Code to Section 325, Indian Penal Code. Here, in the present case, Dr. Nagin Dhaliwal (PW1), who conducted the postmortem examination on the deadbody of Kuldip Kaur had found burn injuries to the extent of 50 to 60 per cent involving vital area of the body. Death in this case was due to hypovolaemia and neurogenic shock. Hypovolaemia as per Stedman''s Medical Dictionary mean as deficiency in the amount of blood in the body, which was quite obvious in view of the extensive burns suffered by Kuldip Kaur. Merely for the reason that the death of Kuldip Kaur occurred after a time gap is no ground to hold that death was not an account of injuries suffered by the deceased. Death in the instant case is directly the result of and connected with the burn injuries. In the case reported as Davasia Yohannan v. State, AIR 1958 Kerala 207 the deceased died on account of injury caused to her spinal chord; but the death occurred after a gap of about seven months in the hospital. The Court held that the death was caused by the injury and the accused was guilty nothing short of murder.

Consequently, finding no merit in this appeal we hereby dismiss the same.