Surinder Kumar vs State of Haryana

Mehtab S. Gill, J.—This is an appeal against the judgment/order dated 16/17.9.2003 passed by Additional Sessions Judge, Panipat, whereby he convicted Surinder Kumar u/s 302 of the Indian Penal Code and sentenced him to undergo life imprisonment and to pay a fine of Rs.5,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for six months. However, Narender Kumar, who was arraigned as an accused before the trial Court, was acquitted of the Charges. No appeal has been filed against the order of acquittal qua accused Narender Kumar by the State.

Prosecution version is unfolded by the dying declaration made by deceased Paramjit on the basis of which, FIR, Exhibit PJ/9 was recorded. She has stated in her statement given to Shri Sudhir Jiwan, Judicial Magistrate I Class, Panipat (PW-4) that her marriage was solemnized 7 months back. Narinder, her husband''s brother, had locked him (her husband) in a room. She went to Narinder to know the whereabouts of her husband. Narinder told her that he had gone outside in the morning. She told Narinder that she was on fast, she would like to have some tea. Narinder gave her the key and asked her to prepare tea for herself. On opening the lock of the door, where she was to prepare tea, she saw her husband sitting inside and reading a Novel. She asked her husband Surinder as he was inside the room, then why his brother was telling a lie to her. He said that they were just joking. Thereafter, her husband went along with his mother and asked Paramjit deceased to stay there and clean up the house. Finding her alone, Narinder and one Amar caught hold of her and told her as to why she was running after her husband Surinder and that there is no difference between him (Narinder) and Surinder. Deceased started crying. Narinder and Amar then started abusing her. Paramjit deceased then went to her own house to bring her husband Sonu @ Surinder. Surinder told her that he was least bothered. She got angry and said that she would prefer to die. Surinder told her that she can go and kill herself. She felt sad, as her parents also did not want to keep her. She threatened Surinder that she would kill herself in front of his house. Surinder sprinkled kerosene oil on her body and set her on fire. She became unconscious. Surinder then took her to the Civil Hospital, Panipat in a three-wheeler.

Zile Singh, Assistant Sub Inspector, the Investigating Officer (PW-8) received a message about the condition of Paramjit. He went to the Civil Hospital. Panipat for recording the statement of Paramjit. He made a written application to the doctor. The doctor gave his opinion that Paramjit was fit to make a statement. Zile Singh (PW-8) along with Sri Niwas, Assistant Sub Inspector (PW-6)went to the residence of Chief Judicial Magistrate, Panipat. Application was moved that the statement of Paramjit Kaur had to be recorded. The Chief Judicial Magistrate marked the application to Shri Sudhir Jiwan, Judicial Magistrate I Class (PW-4) for recording of the statement of Paramjit. Her statement was recorded. FIR, Exhibit PJ/9, under Sections 307/354/34 of the Indian Penal Code was recorded on the basis of her statement.

Prosecution to prove its case, brought into the witness box Jagbir Singh, Constable (PW-1), Krishan Lal. Record Keeper (PW-2), Dr. Y.P. Singhmar (PW-3), Shri Sudhir Jiwan, judicial Magistrate I Class, Karnal (PW-4), Prem Singh, Head Constable (PW-5), Sri Niwas, Assistant Sub Inspector (PW-6), Dr. Chander Kant (PW-7) and Zile Singh, Sub Inspector, the Investigating Officer (PW-8).

Learned counsel for the appellant has stated that the endorsement of the doctor on the dying declaration. Exhibit PJ, as to whether Paramjit Kaur was in a fit state of mind to record her statement, was taken after the statement of the deceased had been recorded. Shri Sudhir Jiwan,- Judicial Magistrate I Class (PW-4) recorded the dying declaration without verifying from the doctor as to whether she was in fit state of mind to make a statement.

In the inquest report, Exhibit PQ, it has been stated that Narinder Kumar and deceased had quarreled. If any case is made out, it is against Narinder Kumar. At the most, it is a case of abetment to commit suicide. The allegations made by Paramjit Kaur are against Narinder Kumar that he along with one Amar Harassed her. During the course of investigation, Amar was not challaned as the investigating officer found him to be innocent. At the most, it is a case of suicide.

Second dying declaration, Exhibit DH, was recorded by the Delhi police. In this statement, Paramjit Kaur has stated that she herself sprinkled kerosene of on her body and set herself on fire, after getting annoyed with the behaviour of her husband and her husband''s brother Narinder. This incident happened on 3.8.1998 at 2.30 P.M.

Learned counsel for the State has stated that the dying declaration, Exhibit PJ/ 4, is first in time. It was recorded on 3.8.1998. It was recorded by Shri Sudhir Jiwan. Judicial Magistrate I Class (PW-4), who went to the Civil Hospital, Panipat on the direction of the Chief Judicial Magistrate, Panipat. Second dying declaration, Exhibit DH, was recorded by the Delhi Police on 4.8.1998. The second dying declaration cannot be taken into consideration, as it has been recorded by a Assistant Sub Inspector of the Delhi Police. There are no attesting witnesses to the second dying declaration, Exhibit DH. The opinion of Doctor Y.P. Singhmar was taken initially before the dying declaration, Exhibit PJ/4, was recorded and he certified in the ending that she (Paramjit) was in a fit state of mind to record her statement. The second dying declaration, Exhibit-DH, is a tutored one, as at that time, she was in the hands of her husband, who influenced her, so that he could be exonerated, to state that she poured kerosene oil on herself and set herself ablaze. It has come in evidence that after the occurrence, it is the appellant Surinder, who took her to the Civil Hospital, Panipat. Dying declaration, Exhibit PJ/4 on the basis of which, FIR, Exhibit PJ/9 was recorded, implicates Surinder though he was present at that time in the hospital. A truthful version has come out from the deceased in Exhibit PJ.

We have heard the learned counsel for the appellant, learned counsel for the State and perused the judgment with their assistance.

Dr. Y.P. Singhmar (PW-3) in his testimony, has stated that on 3.8.1998 at 3.30 P.M., he examined Paramjit wife of Surinder. She was conscious. There was superical to deep burns all over her body except both legs and feet, face and buttocks. On 3.8.1998, he sent his opinion, Exhibit PG/1, to the Station House Officer of Police Station City Panipat. He gave his opinion at 5,35 P.M., Exhibit PH/1, that Paramjit was fit to make a statement. He has further stated that the patient was brought by Surinder Kumar.

Inspector Zile Singh, the Investigating Officer (PW-8) moved an application before the Chief Judicial Magistrate, Panipat, who deputed Shri Sudhir Jiwan. Judicial Magistrate I Class (PW-4) to record the statement of Paramjit Kaur. Her statement, Exhibit PJ, was recorded on 3.8.1998 at 6.15 P.M. She implicated Surinder Kumar in her statement, wherein she has stated that he (Surinder Kumar) sprinkled kerosene oil on her and set her on fire. At that time, Surinder Kumar was present in the hospital when her statement was being recorded. Shri Sudhir Jiwan, Judicial Magistrate I Class (PW-4) in his testimony before the Court, has stated that on 3.8.1998 at 6.15 P.M. view his endorsement, Exhibit PJ/2, on an application of the police, he recorded the statement of Paramjit. He recorded the statement after obtaining the opinion of the doctor, which is Exhibit P J/3. The doctor opined that the patient was fit to make a statement. Statement of Paramjit was recorded in a narrative form, which was read over and explained to her and thereafter, she signed the same after admitting the same to be correct. Statement of Paramjit is Exhibit PJ/4. After recording the statement, the doctor gave a certificate, Exhibit PJ/5, to the effect that she (Paramjit) remained fit and conscious for the entire period, during which her statement was recorded.

Learned counsel for the appellant had much stress on this aspect that endorsement from the doctor that Paramjit Kaur was fit to make a statement, was taken by the Judicial Magistrate, after he recorded the statement. We have minutely scrutinized the statement, Exhibit PJ/4, of Paramjit Kaur from the time the doctor sent a message to the Station House Officer, Police Station City Panipat till it was finally recorded. Vide endorsement, Exhibit PJ/3, which was done on 3.8.1998 at 6.30 P.M. The doctor, as per the statement of Shri Sudhir Jiwan, Judicial Magistrate 1 Class, had opined that "Paramjit is fit for making statement." Her statement, Exhibit PJ/4, was recorded. The doctor vide endorsement, Exhibit PJ/5, endorsed that "she remained fit and conscious for the entire period during which her statement was recorded," which has been signed by the doctor and the date has been affixed at 3.8.1998. It is clear from Exhibit PJ/3 and Exhibit PJ/5 that the doctor before recording of the statement and after recording of the statement, opined that Paramjit Kaur was fit to make a statement. This dying declaration, Exhibit PJ, is credible, it inspires confidence. It does not need any corroboration as it is a truthful version.

13.The second time declaration, Exhibit DH, has been recorded by one Assistant Sub-Inspector of Delhi police. Apart from his own endorsement, there are no witnesses to this dying declaration. At that moment of time, Paramjit Kaur was still in the hands of her husband Surinder Kumar. Though no evidence has come on record, but she must have been tutored by the appellant to give a statement, so that onus of her being burnt does not come on him.

In view of the foregoing discussion, we do not find any infirmity in the judgment/order dated 16/17.9.2003 passed by Additional Sessions Judge, Panipat.