Surinder @ Shinder vs State of Punjab

Arvind Kumar, J.—This appeal is directed against judgment and order dated 18.1.2002 passed by the Sessions Judge, Rupnagar, whereby in case FIR No. 45 dated 29.5.1998 u/s 302 IPC, Police Station Kurali, District Rupnagar, the accused-appellant has been convicted u/s 302 IPC, for having committed the murder of Punam and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5000/- and in default of payment of fine, to further undergo imprisonment for a period of three months.

In brief, the facts are that on 28.5.1998, a wireless message was received at Police Station Kurali from the Police Post P.G.I. Chandigarh, to the effect that one Satpal and his daughter Punam are admitted in PGI Chandigarh due to burn injuries. Upon this, ASI Ajaib Singh in the company of other police officials approached the Sub Divisional Magistrate, Kharar, and made a request in writing for recording the statement of said Punam, who deputed Naib Tehsildar-cum-Executive Magistrate for this purpose and thereafter, they reached PGI Chandigarh where the Naib Tehsildar-cum-Executive Magistrate made a written request for recording the statement of injured Satpal and his daughter Punam. As per opinion of the doctor, injured Satpal was declared fit to make statement while Punam was declared unfit as such. Then Satpal in his statement stated before the Naib Tehsildar-cum-Executive Magistrate that at about 10.30 AM when he and his daughter Punam were present in their house, the accused-appellant Surinder @ Shinder came with a bottle of kerosene oil and poured it on the shoulder of his daughter Punam and with the help of a match-stick, set her on fire and then ran away. He tried to save his daughter and in the process, he also sustained burn injuries. After recording the statement of Satpal, the same was sent to Sub Divisional Magistrate, Kharar, who handed it over to ASI Ajaib Singh and finally, the present case came to be registered. On the next day, i.e. 29.5.1998, the opinion of the doctor was again obtained when Punam was declared fit to make statement and she made statement. It may be mentioned here that three dying declaration were suffered by deceased, Punam; one before ASI Ajaib Singh vide Exhibit PT; second one was recorded by Dr. Rajinder Parsad vide Exhibit PT/2 and the third one before the Naib Tehsildar-cum-Executive Magistrate Pritpal Singh vide Exhibit PJ. In nut shell, in these dying declarations, deceased Punam has stated that on 28.5.1998 at about 10 AM when she was collecting utensils in the kitchen, accused-appellant Surinder @ Shinder, who is their neighbourer, came there and poured kerosene oil upon her from the Canny and then taking a match-box from the kitchen, ignited the fire. On her raising Raula, her father came there and put a Chader as well as water upon her but she received burn injuries. The cause of being put on fire, as given by her, is that on the day of Dussehra, he told that he loved her upon which she had given slaps to him and it was in order to take revenue of that incident that the accused had set her on fire after pouring kerosene oil on her. On 30.5.1998, Punam died at the PGI. Inquest report of deceased Punam was prepared and medical record obtained. Post-mortem on the dead-body of Punam was conducted by Dr. Surinder Singh, Medical Officer, PGI, Chandigarh, who gave post-mortem report, Exhibit PL. As per opinion of the doctor, the cause of death was irreversible hypo-bolemic shock due to 98% extensive burns. Statements of the witnesses were recorded. Accused-appellant was arrested on 1.9.1998.

Upon completion of investigation of the case, accused-appellant was challaned. After being produced in Court, he was charge-sheeted u/s 302 IPC to which he pleaded not guilty and claimed trial.

The prosecution in order to prove the charge against the accused, examined PW-1 Dr. Amita Bhalahira, PW-2 Dr. K.M. Kapoor, PW-3 Pritpal Singh, PW-4 Mukesh Kumar, PW-5 Dr. Surinder Singh, PW-6 Satpal, PW-7 SI Raj Kumar, PW-8 SI Rajbir Singh, PW-9 ASI Ajaib Singh and PW10 Dr. Rajinder Parsad and closed its evidence.

Thereafter, accused Surinder @ Shinder was examined u/s 313 Cr.P.C. and put incriminating evidence appearing against him to which he pleaded innocence and claimed false implication. He stated that he was innocent in the case and that the father of deceased Punam who was a Tantrik had killed his daughter Punam as earlier too, his two daughters had died due to his business of Tantrik and in that regard, several persons of the village, including him, had given an application to SHO Police Station, Kurali. In defence evidence, he examined DW-1 Jasbir Singh and closed his evidence.

The learned Sessions Judge, vide his judgment and order held the accused-appellant Surinder @ Shinder guilty and convicted and sentenced him in the manner indicated above. Hence, the present appeal by accused Surinder @ Shinder.

We have heard the learned Counsel for the parties.

In the instant case, the deceased is Punam, aged about 15/16 years. There are three dying declarations made by her on 29.5.1998. u/s 32 of the Evidence Act, when statement is made by a person as to the cause of his/her death or as to in what circumstances which resulted in his/her death in cases in which the cause of that person''s death comes into question, such statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. Such statement made by the deceased is called dying declaration and falls in that category provided it has been made by the deceased while in a fit mental condition. The legal position remains unaltered that the dying declaration should be scrutinised very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free from any effect to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in founding the conviction on it even if without looking for any corroboration. The first dying declaration, Exhibit PT was recorded at 4.30 PM by PW9 ASI Ajaib Singh in the presence of PW-10 Dr. Rajinder Parsad after having obtained the fitness, Exhibit PT/1. The second dying declaration is at 5.20 PM recorded by PW10 Dr. Rajinder Parsad himself. His evidence suggests that since the police had not brought the Judge to record her statement and the condition of Punam was deteriorating as she was having 98 per cent burns on her body, he and other doctors and other staff thought that the patient may die by that time and they decided to write her statement as a piece of evidence. They thus, recorded her statement, Exhibit PT/2, certified by the doctor vide endorsement, Exhibit PT/3, that the statement was recorded in his presence after endorsing that she is fit for making statement, Exhibit PT/4. The third dying declaration is recorded by PW3 Pritpal Singh, the then Naib Tehsildar-cum-Executive Magistrate, who in fact on the directions of SDM Kharar had visited the hospital on 28.5.1998 itself for recording the statement of Punam but since she was unfit to make her statement, vide opinion of the doctor, Exhibit PE, he after having obtained the fitness of Satpal who was admitted in hospital with 25 per cent burn injuries, recorded his statement, Exhibit PG. On 29.5.1998, he had also visited the hospital. On his application, Exhibit PH, with regard to fitness of Punam and after having obtained the opinion of the doctor, Exhibit PH/1, certifying the fitness to make statement, he recorded her statement, Exhibit PJ, at 6.05 PM, again certified by the doctor vide endorsement Exhibit PJ/1, by PW10 Dr. Rajinder Parsad. The law relating to appreciation of evidence in the form of more than one dying declaration, is well settled. Accordingly, it is not the plurality of the dying declaration but the reliability thereof that adds weight to the prosecution case. If the deceased has several opportunities to make dying declaration, that is to say, if there are more than one dying declarations, they should be consistent. In the present case, Punam in all her statements is very consistent so far as the name of the accused is concerned, who is none else but her neighbourer and the manner in which she was set on fire. She has very categorically stated that he first poured kerosene oil upon her from the Canny and then taking a match-box from the kitchen, ignited the fire. Her statement is also consistent so far as the presence of her father, PW6 Satpal, is concerned and also to the fact that he also received burn injuries in the process of putting Chader as well as water on her. The burn injuries on the person of PW-6 Satpal are also supported by medical evidence.

The only argument that has been addressed by the Counsel for the appellant is that since deceased Punam was having 98 per cent burns, she was not mentally fit to make statement, which is not tenable in view of statement of PW10 Dr. Rajinder Parsad who had endorsed her fitness at all stages. He vide endorsement Exhibit PH/1, at the time of recording of her statement by PW3 Pritpal Singh, Naib Tehsildar-cum-Executive Magistrate, endorsed her to be "conscious, oriental, fit to make statement" and Exhibit PJ/1, the certification by him that the "statement recorded in my presence. The patient remained conscious, fit and oriented throughout the period of making the statement". Similarly, in the statement recorded by PW9 ASI Ajaib Singh and the doctor himself vide Exhibit PT and PT/2, a similar opinion was given that she was conscious, fit, oriented throughout the period of making the statement. The evidence of PW-3 Pritpal Singh, Naib Tehsildar-cum-Executive Magistrate, also indicates that since her hands were burnt, she could not put her signatures/thumb-impressions on her statement, which is duly endorsed by PW10 Dr. Rajinder Parsad. There is also absolutely no suggestion put to PW10 Dr. Rajinder Parsad that she was neither conscious nor fit to make statement and also there is no suggestion that she was in a position to sign or put her thumb-impression on her statement.

Counsel for the appellant has made reference to a decision in Bakhshish Singh alias Bakhshi and Ors. v. Emperor 1925 Lahore 549, to urge that the inhabitants of Punjab often in a dying declaration not only accuse the actual offenders but also include the names of other enemies and hence, in Punjab it is not safe to base a conviction on the uncorroborated dying declaration of a deceased person. The facts of the said case do not apply to the present case which relates to a single accused and secondly, in the said case, the names of some other persons were mentioned with whom the deceased had 107 Cr.P.C. proceedings, which is again not the case here; and thirdly, the dying declarations made by the deceased in this case, which as discussed above, are consistent and is also corroborated from the statement of PW-6 Satpal who was present at the spot and narrated the entire occurrence. He is also a stamped witness, having received 25 per cent burn injuries in the process of putting off the fire while putting Chader on his daughter Punam. His statement also reveals that the accused was nursing a grudge as on the event of Dussehra prior to the occurrence, he had teased his daughter for which she had slapped him. This version of his also stands corroborated in one of the dying declarations made by the deceased. No doubt, PW-9 ASI Ajaib Singh has stated that the mother of Punam was also sitting near her when her statement was recorded by the Naib Tehsildar-cum-Executive Magistrate. It is no where the case of the defence that at any juncture, Punam was tutored by anybody. Even otherwise, there cannot be any rule of law that if the relations are in the company of the dying person in the hospital that dying person must necessarily be tutored to make the statement. It cannot be forgotten that a dying declaration made by a person on the verge of his/her death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his/her death.

Faced with this difficulty, Counsel for the appellant has argued that PW-6 Satpal is a Tantrik and earlier thereto, his two daughters had died due to his business as Tantrik and Punam was also killed by Satpal. This plea is not tenable as there is no evidence to the effect that earlier thereto, Satpal had done away his two daughters. In the present case as well, though he has examined DW-1 Jasbir Singh who states that the "Mohallawalas" had drafted an application Exhibit DA signed by him as well as there was a rumour that Satpal himself set his daughter on fire but the defence has led no evidence as to what was the fate of the said application, Exhibit DA, though it stated to have been given in the office of the S.S.P. No further evidence has been led by the defence to prove the above-said allegations.

No other point has been urged.

In view of the discussion made in the earlier paras, the prosecution has successfully proved its case against the accused-appellant beyond any reasonable doubt. The appellant-accused has rightly been convicted. No interference is called for. The appeal stands dismissed.