Sanjeev Kumar vs State of Punjab

R.P. Nagrath, J.—Sanjeev Kumar, appellant (to be described as ''accused'') and Sonia, his sister-in-law, faced trial on the charges u/s 498A and Section 302 read with Section 34 of the Indian Penal Code (for brevity ''IPC''), for having subjected Rekha wife of Sanjeev Kumar, appellant-accused to cruelty and harassment, with a view to force her to meet the unlawful demand of dowry from her parents, and for committing her murder by intentionally causing death of Rekha (deceased). Vide judgment, dated 1.11.2006, rendered by the learned Additional Sessions Judge, Amritsar, Sonia, co-accused was acquitted of the charges by extending her benefit of doubt and Sanjeev Kumar, appellant was convicted of the said charges vide judgment dated 01.11.2006 and awarded sentences vide order dated 03.11.2006 as under:

(i) u/s 302 IPC

To undergo imprisonment for life and to pay a fine of Rs. 5000/-, in default of payment of fine to further undergo rigorous imprisonment for one year.

(ii) u/s 498A IPC

To undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 1000/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months.

Both the substantive sentences of imprisonment ordered to run concurrently. Co-accused, namely; Sonia was acquitted of the charges framed against her. According to the prosecution, Assistant Sub Inspector (for brevity ''ASI'') Tarsem Lal of Police Station-A Division, Amritsar, on receipt of information from Guru Nanak Dev Hospital, Amritsar, about the admission of Rekha (deceased) with burn injuries, reached there, alongwith other police officials. He moved an application, seeking opinion of the doctor, for recording the statement of the victim. The doctor found Rekha, fit to make the statement.

The version that emerges from the statement of Rekha (deceased) recorded by ASI Tarsem Lal, is that her marriage was solemnized on 10.5.1996 i.e. about 10 years ago, with the appellant-accused. Three sons were born from the wedlock and Punnu (PW-4) was the eldest, aged about 9 years. Her husband was running business of making large steel trunks. His income is meager but he was addicted to liquor. On that account, the accused had incurred debt. The accused alongwith his mother Janak Rani and Sonia wife of his elder brother, namely; Kalu had been harassing her, demanding money from the parents of the deceased. Six months before the occurrence, father of the deceased had paid Rs. 20,000/-in cash to them and they were able to clear the debt. They again started pressing her to bring more money, for which, she had expressed her inability, as her parents were not financially sound. Therefore, the appellant and his aforesaid relatives used to harass her. She was residing with her husband and children, on the second floor of the house, whereas her mother-in-law and Sonia with family, were residing on the first floor and the family of paternal uncle of Sanjeev Kumar, appellant-accused were occupying the ground floor.

Rekha, in her statement, before ASI Tarsem Lal, disclosed that on 24.9.2004 at about 9.00 p.m. when she was coming down-stairs, that her mother-in-law and sister-in-law started abusing her. So, she went up-stairs, where her husband also abused her and poured kerosene on her from the stove lying there and set her ablaze. Her entire body was burnt. The appellant took her to the hospital in a tempo and himself went away.

The statement recorded by ASI Tarsem lal, was sent to the Police Station and FIR Ex. PH/2 was registered. The statement was completed by ASI Tarsem Lal at 8.30 a.m. The endorsement of the Area Magistrate about the receipt of the FIR is at 1.35 p.m. on 25.9.2004.

The Investigating Officer, moved an application Ex. PF to the Chief Judicial Magistrate, Amritsar, for deputing a Judicial Magistrate for recording the statement of Rekha. The endorsement of the learned Additional Chief Judicial Magistrate, Amritsar, shows that this request was presented at 3.10 p.m. on 25.9.2004 and Shri Baljinder Singh, Judicial Magistrate Ist Class, Amritsar, was deputed for recording the statement of the victim, who was admitted in Guru Nanak Dev Hospital, Amritsar. Shri Baljinder Singh, Judicial Magistrate Ist Class, Amritsar, reached the hospital and after obtaining the certificate, from the doctor about the fitness of the patient, recorded the statement of the victim Ex. PF/4, which is also relied upon by the prosecution as a ''dying declaration''. That statement was completed at 4.01 p.m. The learned Judicial Magistrate had obtained the opinion of the Doctor on duty, about the fitness of Rekha (deceased) before recording her statement.

It is also the version of the prosecution, that Rekha (deceased), had also disclosed to her father and Rajiv Kumar, PW-2 about the manner, in which she had suffered the burn injuries, on her person, that Sanjeev Kumar, appellant poured kerosene on her from the stove and set her ablaze.

The police party headed by ASI Tarsem Lal, visited the spot and recovered from the room of residential house on the second floor, a metal stove, stained with kerosene, burner and pumping rod, which was lying separated, half burnt match-box and burnt lower part of the salwar with patches of burnt skin, which were converted into parcels and taken into possession vide recovery memo Ex. PA/1. The rough site plan is Ex. PI. Rekha succumbed to the burn injuries on 4.10.2004 and the offence punishable u/s 304B IPC was added vide DDR Ex. PB, but was later on converted to Section 302 IPC. Application Ex. PD was also moved by the Police for conducting post-mortem examination on the dead body of Rekha (deceased). Dr. Rahul Chawla, of the Department of Forensic Medicine and Toxicology, Government Medical College, Amritsar, was the member of board of doctors, constituted for conducting autopsy, on the dead body and cause of death was shock which was sufficient to cause death in the ordinary course of nature. There were 85% of the burns on the dead body, which were ante-mortem in nature. The appellant-accused was arrested in this case on 25.9.2004. Sonia sister-in-law of the appellant-accused was arrested on 01.11.2004. On completion of investigation, the charge-sheet was presented by the prosecution against the appellant and Sonia.

The learned Area Magistrate, committed the case for trial to the Sessions Court as the offence punishable u/s 302 IPC was exclusively triable by Court of Session.

The prosecution in all examined 11 witnesses.

The accused has not disputed that he was married to Rekha (deceased) on 10.5.1996 and they were having three children from the wedlock. He, however, denied all the other incriminating circumstances appearing in the prosecution evidence, against him, during his examination u/s 313 of the Code of Criminal Procedure and pleaded false implication at the instance of parents of the deceased. His wife Rekha (deceased) died of her own and he took her to the hospital for treatment. He also received injuries while saving the deceased.

Sonia, the co-accused pleaded innocence. Accused did not lead evidence in defence.

The learned Additional Sessions Judge, Amritsar, has convicted and sentenced the appellant, as aforesaid, whereas co-accused Sonia was

acquitted of the charges framed against her.

The learned counsel for the appellant and learned Additional Advocate General, appearing for the State, have been heard and we have also gone through the record of the case, carefully

The prosecution story rests solely on the dying declarations first made before the Investigating Officer, and then as recorded by the learned Judicial Magistrate Ist Class, Amritsar. The father of the victim and other witnesses examined on the subject have turned hostile.

It would be appropriate to briefly describe the evidence produced in the case. PW-1 Satpal father of the deceased stated that he never heard about the accused harassing or maltreating his daughter. His daughter was living a happy married life. He never paid the cash amount of Rs. 20,000/-by borrowing the same from some other person any time before the death of his daughter. Similar is the fate of the testimony of Rajiv Kumar (PW-2) from whom Satpal (PW-1) allegedly borrowed Rs. 20,000/-about six months before the occurrence, to meet the demand of the appellant-accused.

PW-3 HC Baldev Singh tendered his formal affidavit Ex. PA to the effect, that he and Constable Kulwant Singh, were entrusted with dead body of the deceased for getting the post-mortem examination conducted.

PW-4 Ajay Kumar @ Punnu son of the accused and the deceased, has also not supported the prosecution case. He is a 10 years old child and was examined about nine months after the occurrence. He is now residing with the maternal grandfather-Satpal.

PW-5 ASI Surinder Singh, recorded DDR Ex. PB on 4.10.2004, on receipt of information of the death of Rekha and added Section 304B IPC. He visited the mortuary and prepared the inquest report Ex. PC and the dead body, according to him, was sent for post-mortem examination, through HC Baldev Singh and Constable Kulwant Singh. After the post-mortem examination, the clothes of the deceased, were handed over to him by these police officials, which were made into a sealed parcel and memo Ex. PE was prepared. Parcel Ex. P-I containing these articles, and other parcel Ex. P-2 containing the stove, were brought during the further examination of the witness, on 4.1.2006.

Shri Baljinder Singh, Judicial Magistrate Ist Class (PW-6), stated that he was deputed by the learned Additional Chief Judicial Magistrate, Amritsar, for visiting Guru Nanak Dev Hospital, Amritsar, for recording the statement of Rekha, the victim, on 25.9.2004. He passed the order Ex. PF/2, seeking opinion of the doctor, about the fitness of the victim to make the statement, and the doctor declared her fit to make the statement, by making endorsement Ex. PF/3. In this regard, there is the testimony of Dr. Ravinderpal Singh (PW-9) Junior Resident, Guru Nanak Dev Hospital, Amritsar. He (PW-9) stated that on 25.9.2001, he gave the certificate Ex. PF/3, about the fitness of Rekha, to make the statement. The statement of Rekha was recorded by the Judicial Magistrate, in his presence and after the statement was recorded, he issued another certificate Ex. PF/6, in this regard.

Sh. Baljinder Singh, PW-6, further stated that he recorded the statement of Rekha, contents of which were read over and explained to her, and the victim put her thumb impressions over it, after admitting the same to be correct. The statement is Ex. PF/4. He (PW-6) recorded the statement of the deceased in his own hand-writing and put his own signatures also. As per the endorsement, the statement was completed at 4.01 p.m. He also stated that only the doctor was present, at the time of recording the statement.

The statement Ex. PF/4 of the deceased, recorded by the learned Judicial Magistrate Ist Class, Amritsar, is in question and answer form. Rekha (deceased) stated that she was married with the accused about 10 years ago. Her husband, namely; Sajeev Kumar, accused daily beats her under the influence of liquor and was forcing her, to bring money from her parents. Till now, she had paid him Rs. 25,000/-to 30,000/-. He has borrowed loan of Rs. 10,000/-, in her name, and she was paying interest on the same. Last night also her husband beat her up, under the influence of liquor in order to compel her to bring Rs. 20,000/-more from her parents. Her husband, also gives beating to her children and they were withdrawn from the school. After beating her last night, the accused approached his mother and asked her to see a girl for his re-marriage. In answer to the next question, as to what had then happened, she stated that the accused told his mother that he has already seen a girl for his re-marriage, to which his mother replied that they will see the girl after sending the deceased to her parents house. On hearing this conversation, she talked to her husband, but he got angry and started beating her and poured kerosene upon her by taking it out, from the stove lying there and set her on fire with a match stick. She rushed to the first floor, where there was a tub full of water and sat in tub. On the next question, as to who were present at that time, she replied that her mother-in-law Janak Rani and sister-in-law Sonia were present there and they did not throw water on her to save her life. Apart from the above ladies, no other member of the house used to harass her and only her husband set her ablaze. She does not know whether her husband had spoken to the children about it. On the final question, as to what else, she wants to say, she stated that she wants to keep her children with her, but does not want to go to the house of her husband as he harasses her very much.

PW-7 ASI Tarsem Lal conducted the initial investigation, who had reached the Guru Nanak Dev Hospital, on receiving the information about admission of Rekha, with burn injuries. The doctor had given the opinion Ex. PG/1, to the Investigating Officer about the fitness of the victim at 7.40 a.m. and the Investigating Officer send the statement with his endorsement Ex. PH/1, to the Police Station for registration of the FIR at 8.30 a.m.

PW-8 Dr. Rahul Chawla, Junior Resident, Department of Forensic Medicine, Medical College, Amritsar, stated that he was the member of the board of doctors constituted on 4.10.2004, for conducting autopsy on the dead body of Rekha. The doctors found following injuries on her person:

Superficial to deep bones present on the body sparing the forehead, the palmer surface of left hand, the Sole of both feet, little area on front of both the legs. Body hairs were burnt and singened. Red line of demarcation was present. Greenish discolouration of burnt area was present. Slough separation and granulation tissue formation was seen at glaces. Scalp hairs were spared.

A stitched wound 2 cms with three stitched intact was present just above the medial malleolus of left foot (Hospital wound).

A stitched wound 8 cms one stitch intact was present lateral to medial malleolus of left foot. (Hospital wound).

There were about 85% burns on the dead body, which were ante mortem in nature. The cause of death was shock, which was sufficient to cause death in the ordinary course of nature. Copy of the post-mortem report is Ex. PJ, which was conducted on the request of police Ex. PD.

PW-9 Dr. Ravinderpal Singh, Junior Resident, Guru Nanak Dev Hospita, Surgery Ward, Amritsar apart from making statement about declaring the victim fit to make statement, when the Judicial Magistrate, came for recording the statement of the deceased, brought the bed-head-ticket of Rekha, who was admitted with burn injuries and she expired on 3.10.2004 at 7.20 p.m. He had also treated the patient. Copy of the bed-head-ticket is Ex. PK and according to the record, patient was having 75% burn injuries. The deceased also remained under the treatment of PW-11 Dr. Vikas Deep Goel, Junior Resident, Guru Nanak Dev Hospital, Amritsar, who also brought the bed-head-ticket Ex. PK.

PW-10 Rishi Ram, Draftsman, had prepared the scaled site plan Ex. PL, which is dated 10.12.2004.

Learned counsel for the appellant has assailed the findings recorded by the trial Court, on the ground that it is not always safe to accept the dying declaration, unless it is corroborated on material particulars. The conduct of the appellant, immediately after the incident of his wife catching fire, taking her to the hospital, would be a mitigating circumstance. The learned counsel further submits that all the witnesses relied upon by the prosecution to prove the factum of alleged harassment and cruelty meted out to the deceased, including father and son of the deceased, have not supported the prosecution story. In these circumstances, there was no motive left for the prosecution to allege against the appellant for committing murder of his wife. It is also vehemently contended that initially father of the deceased must have prompted her to implicate the appellant in this case, in order to put pressure upon him, but later on realized the true state affairs.

On the other hand, the learned State counsel contends, that the prosecution case is based upon two dying declarations, first recorded by the Investigating Officer in the early morning on 25.9.2004 at about 7.40 a.m., on reaching the hospital, and second in the afternoon, by the learned Judicial Magistrate. According to learned State counsel, there is no circumstance brought on record, to doubt the veracity of the dying declarations duly proved, in this case, and therefore, the view taken by the learned Additional Sessions Judge, is quite correct, as it is well settled that the dying declaration can be the sole basis of conviction if it is found to be reliable and without any suspicion.

Before dealing with the rival contentions of the parties, it would be appropriate to refer to the established principles on the subject. The Apex Court in Atbir Vs. Govt. of N.C.T. of Delhi, summed up the principles relating to the dying declaration on the analysis of various decisions. The relevant para 22 of the judgment is as under:-

The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.

The statement in the nature of dying declaration made by the deceased before the learned Judicial Magistrate has been extensively reproduced and minute events leading to the incident, in which, she was set afire, have been described by her and the nature of the dying declaration would show that this was the natural revelation of the incident that happened with the lady. The learned Judicial Magistrate took all precautions in putting the questions to the lady, though apparently for eliciting the truth and nothing has appeared in the cross-examination of the learned Judicial Magistrate to bring any suspicion to the detailed version, which the victim had stated to him. There is not even a remote suggestion to the learned Judicial Magistrate, as to whether, any of her relative was present around the ward, where the lady was admitted.

The defence has referred to the cross-examination of Dr. Ravinderpal Singh (PW-9) that the husband of the patient was present, when the columns of the bed-head-ticket were filled. He further stated that husband of the patient, remained with her, during the treatment period. He must have also been bringing the medicines for her. The doctor stated that he had been handing over the prescription slips regarding medicines to be purchased to the husband of the patient. However, the record of the hospital only shows that the husband of the deceased got her admitted in the hospital. The presence of the appellant in the hospital, during treatment of the deceased is totally ruled out, as he was arrested on the next day i.e. 25.09.2004. Even in the first dying declaration Ex. PH, made before the Investigating Officer, the deceased clearly stated that her husband, namely; Sanjeev Kumar, accused brought her to the hospital in a tempo, got her admitted and thereafter went away.

Reverting back to the dying declarations, the deceased also mentioned in the statement Ex. PH, recorded by ASI Tarsem Lal that after there was an altercation with her mother-in-law and sister-in-law, she had gone to her room up-stairs that her husband came; abused her and poured kerosene on her, from the kerosene stove lying there and set her on fire. Therefore, both the dying declarations are quite consistent. The first dying declaration was recorded by the Investigating Officer, after seeking the opinion of the doctor Ex. PG/1, at 7.40 a.m. that the patient was fit to make the statement. This statement bears the signatures of the victim and the learned Judicial Magistrate, recorded her statement at 4.01 p.m. and, therefore, there was a huge gap and if any of the two versions, was tainted, it could be revealed, when the statement was being recorded for the second time. PW-1 Satpal, father of the deceased, who otherwise did not support the prosecution story, denied the suggestion that he advised his daughter after she regained consciousness, to name her husband, to be responsible for the incident, if somebody comes for enquiry. Even in the cross-examination of ASI Tarsem Lal, there was no such suggestion that the father of the deceased or any other relative was present close to the lady, when he recorded her statement Ex. PH, on the basis of which FIR was registered.

On the aspect of fitness of the deceased to make the statement, Dr. Vikas Deep Goyal, PW-11, who prepared the bed-head-ticket at the time of admission on 24.9.2001, in the cross-examination stated that when the patient was admitted in the hospital, she was fully conscious, co-operative and anxious. There are the entries, to this effect, in the bed-head-ticked Ex. PK. In Khushal Rao Vs. The State of Bombay, the Apex Court emphasized that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing, than a dying declaration which depends upon oral testimony, which may suffer from all the infirmities of human memory and human character.

The learned counsel for the appellant vehemently contended that PW-1 Satpal, PW-2 Rajiv Kumar and PW-4 Punnu, son of the appellant and the deceased, have not supported the prosecution story, especially regarding the alleged cruelty or harassment and the genesis of the crime is not established. He stated that he does not know if his daughter made the statement before the police or before the Judicial Magistrate as they remained outside the hospital. Satpal PW-1, even denied the fact that he visited the spot with the police party or that the police took into possession a kerosene stove, pumping rod of the stove, match box and a burnt piece of cloth of lower portion of salwar by converting them into parcel. He, however, admitted his signatures on the memo of recovery Ex. PA /1 for taking into possession these articles. It was otherwise natural for the Investigating Officer, to take the father of the deceased to the house of the appellant for inspection of the site and for conducting the proceedings. This witness has apparently turned hostile for the reasons best known to him and no weight can be attached to this fact in view of story that has been revealed in true sense in the dying declarations, which have remained untainted.

It would be relevant to refer to the statement of PW-4, Punnu a 10 years old child of the couple, who has also turned hostile to the prosecution version. His statement was recorded on 18.7.2005 and then on 26.10.2005 by the learned trial Court. The witness succinctly remembers the name of his mother-Rekha (deceased). It is the prosecution story that the children were residing with the appellant and his wife Rekha (deceased) when she was alive. Now, Punnu as well as Satpal (PW-1) both have stated that the children are now residing with their maternal grandfather, namely; Satpal (PW-1). The witness, however, stated that he does not know as to where his mother is presently living nor he knows whether she has died. Otherwise he has not seen anybody setting his mother on fire. In the dying declaration of Rekha (deceased) recorded by the learned Judicial Magistrate, it is stated that she does not know what conversation her husband had with the children. It is, thus, quite possible that the children may not be on the second floor of the house when the incident took place and they were kept away from the place of occurrence. PW-1 Satpal, stated that the children of his daughter were brought by him from the house of the appellant-accused after about 10-15 days of the death of Rekha and are staying with him.

Even in Vikas and Others Vs. State of Maharashtra, , the father of the deceased who attested the Panchnama, had not supported the prosecution case. But in view of the dying declaration inspiring full confidence, no weight was attached to the fact that father and the other attesting witness did not support the prosecution.

As a sequel to the above discussion, it is found that the learned Additional Sessions Judge, Amritsar, rightly came to the conclusion holding guilt of the appellant of the charges under Sections 302/498A IPC and the conviction and sentence awarded by the trial Court are upheld. Consequently, there is no merit in the appeal and the same is, therefore, dismissed.