Tarlok Singh vs State of Punjab

K.S. Kumaran, J.

Appellants (1) Tarlok Singh (2) Santokh Singh (3) Ajmer Singh (all sons of Sher Singh) (4) Amarjit Kaur (wife of Santokh Singh) and (5) Harmesh Kaur (wife of Ajmer Singh) faced trial before the Additional Sessions Judge, Patiala (in Sessions Case No. 12 of 13.9.1992) under Sections 147 and 498A of the Indian Penal Code. While appellantTarlok Singh faced a charge under Sections 302 of the Indian Penal Code also, the other appellants were charged under Section 302 read with 149 of the Indian Penal Code for having caused the death of Surinder Kaur (wife of one of the appellantTarlok Singh). All the appellants were convicted under Section 147 I.P.C. and sentenced to Rigorous Imprisonment for six months. AppellantTarlok Singh was convicted under Section 302 IPC. and was sentenced to undergo imprisonment for life, to pay a fine of Rs. 500/ and in default to further undergo Rigorous Imprisonment for six months, while the other appellants were convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo imprisonment for life, to pay a fine of Rs. 100/ and in default to further undergo rigorous imprisonment for three months. However, all the appellants were acquitted of the charge under Section 498A of the Indian Penal Code.

The case of the prosecution in brief is as follows :

Surinder Kaur (deceased) was married to appellantTarlok Singh. Threefour months after the marriage Tarlok Singh, who was working as a teacher, was placed under suspension, and on enquiry Surinder Kaur came to know that Tarlok Singh was earlier married to Charno and that Tarlok Singh was facing a charge of having murdered her. To pursue that case Tarlok Singh wanted Surinder Kaur to arrange for a scooter for him. Surinder Kaur informed her brotherDarbara Singh and motherSanto about this, and her parents gave a scooter to Tarlok Singh. About a year prior to the occurrence (the occurrence took place on 25.3.1992) Tarlok Singh quarrelled with Surinder Kaur and asked her to bring money from her parents. Surinder Kaur came to her house at village Heeran and gave birth to a female child. Thereafter Santo, mother of Surinder Kaur, invited Tarlok Singh to her village and Tarlok Singh was assured by the brother and mother of Surinder Kaur that they would continue to help him financially according to their capacity. Tarlok Singh brought Surinder Kaur and her daughter to Nabha were they lived.

But Tarlok Singh had clandestine meeting with his brother''s wife Harmesh Kaur (one of the appellant herein) against which Surinder Kaur protested. But they said that they would continue to live in that manner.

Surinder Kaur came to her parental home and informed about this to her mother and brother, on which they, accompanied by Bhajan Singh (Sarpanch) and Jagir Singh residents of that village, brought Surinder Kaur to Nabha, where in the presence of his brothers, Harnek Singh (PW 7) and others upbraided Tarlok Singh and Harmesh Kaur. Tarlok Singh undertook that he would not indulge in any such activity in future, and Surinder Kaur started living with him.

Whenever Tarlok Singh demanded money during the pendency of the case at Patiala, the brothers of Surinder Kaur used to give him money. Tarlok Singh was convicted and had filed an appeal to the High Court, which was pending.

About 15/20 days prior to the occurrence, Tarlok Singh picked up a quarrel with Surinder Kaur on the ruse that he needed more money for meeting the expenses of this case, and when Surinder Kaur informed about this to her parents, a Panchayat consisting of Shamsher Singh, Surjit Singh along with her mother and brother Dalbara Singh came to Nabha. Narnek Singh was also called. Tarlok Singh was made to realise that they had helped him to the extent of Rs. 60,000/ and were still prepared to help him. Even thereafter Tarlok Singh and his brothers asked Surinder Singh to bring more money.

On 25.3.1992, at about 8 p.m. Surinder Kaur and her husband Tarlok Singh went to bed, and even while she was awake, at about 10 p.m. Tarlok Singh got up from the bed and went to the bed room of Harmesh Kaur, while Ajmer Singh (appellant) came to the bed room of Surinder Kaur and laid down with her. Surinder Kaur rushed out to the courtyard hurling abuses. Appellants Ajmer Singh, Harmesh Kaur followed her and appellants Santokh Singh and Amarjit Kaur had also came out of their bed room at that time. All of them caught hold of Surinder Kaur and said we will finish you today. Tarlok Singh also came there, picked up a bottle of kerosene from the kitchen, poured it on Surinder Kaur and set her ablaze with a matchstick. Her whole body sustained burns. On hearing her cries, Harnek Singh, (P.W.) and Bahadur Lal came there and chided them for their acts. Then Tarlok Singh and his brothers slipped away, but, later on Tarlok Singh came back, took Surinder Kaur to the hospital at Nabha, and thereafter to Rajindra Hospital, Patiala.

Dr. Parveen Kumar (PW1), Medical Officer, Civil Hospital, Nabha, sent an intimation (Ex.PA) to S.H.O., Police Station Kotwali, Nabha that Surinder Kaur was brought with burn injuries at 10.30 p.m. on 25.3.1992. ASI Jagan Nath (PW10) who was on patrol duty on 25.3.1992 reached near Civil Hospital, Nabha, heard about the burning of a lady who was being removed to the hospital, reached the hospital and received the intimation Ex.PA from the medical officer and carried it to the Police Station Kotwali, Nabha.

Sub Inspector Gurmit Singh (P.W.13), the investigating officer, on receipt of the intimation Ex. PA went to the Rajindra Hospital Patiala, moved an application seeking the opinion of the Doctor about the fitness of Surinder Kaur to make a statement, but, in view of the Doctor''s endorsement at 1.10 a.m. that she was not fit, returned back without recording her statement. Once again on 26.3.1992 Sub Inspector Gurmit Singh reached the said Hospital and moved a similar application. Dr. Sudesh Kumar Gulati (PW2) of the said Hospital opined that Surinder Kaur was fit to make a statement on 26.3.1992 at 5.30 p.m. After obtaining this opinion of the Doctor Sub Inspector Gurmit Singh (PW13) recorded the statement of Surinder Kaur, read it over to her. After acknowledging it to be correct Surinder Kaur subscribed her thumb impression to that statement (Ex.PJJ). After making his endorsement Sub Inspector Gurmit Singh sent it to Police Station Kotwali Nabha, on the basis of which the formal F.I.R. Ex.PJ/2 was registered.

On 26.3.1992 Sub Inspector Gurmit Singh (PW13) inspected the scene of occurrence, seized a bottle containing kerosene, and prepared rough plan of the site. On 28.3.1992, he moved an application for recording the dying declaration of Surinder Kaur, and on the orders of the Sub Divisional Magistrate, Bhajan Singh (PW8) Naib Tehsildar reached the Rajindra Hospital, Patiala, and recorded her dying declaration, after getting the opinion of the doctor.

On 1.4.1992, on coming to know about the death of Surinder Kaur, Sub InspectorGurmit Singh (PW13) conducted the inquest and sent the body for postmortem. On 11.4.1992 he arrested the accused.

In support of its case, the prosecution examined PW1 Dr. Parveen Kumar, Medical Officer, Civil Hospital Nabha, who sent the intimation about the arrival of Surinder Kaur; P.W.11 Dr Ashok singla of Rajindra Hospital, Patiala, who had given his opinion that Surinder Kaur was unfit to make a statement at 1.10 a.m. on 26.3.1992; Dr. Sudesh Kumar Gulati (PW2) who certified that she was fit to make the statement at 5.30 p.m. on 26.3.1992, and Dr. Deepak Walia (PW3) who conducted the postmortem examination of Surinder Kaur on 1.4.1992, and found 90% burn injuries on Surinder Kaur, and in whose opinion Surinder Kaur had died of septicemic shocks (due to burns which are antemortem in nature) which was sufficient to cause death in the ordinary course of nature. The prosecution also examined Surjit Singh (PW5) and Shamsher Singh (PW6) who spoke about the Panchayats and also about the dying declaration allegedly made to them by Surinder Kaur. But Harnek Singh, who was examined as PW7 and who is alleged to have witnessed the occurrence, did not support the prosecution and turned hostile. The prosecution also examined the Naib Tehsildar Bhajan Singh (PW8) who spoke about the recording of the dying declaration of Surinder Kaur on 28.3.1992. D.S.P. Gurbachan Singh (PW 9) was examined to speak about registration of the F.I.R. against appellant Tarlok Singh regarding the death of his previous wife Gurcharan Kaur. The prosecution also examined S.I. Gurmit Singh (PW13), the investigating officer who deposed about having received the intimation Ex. PA from the hospital on 25.3.1992 at 10.40 p.m. and about having gone there and moved the application to the doctor to find out the fitness of Surinder Kaur to make a statement. PW13 Gurmit Singh deposed that as the doctor did not declare her fit, he had to return on that day without recording the statement, and that on the next day i.e. 26.3.1992, he once again went to the hospital, got the opinion of the doctor about Surinder Kaur being fit to make a statement. and then recorded her statement Ex.PJJ on which the formal F.I.R. was also registered. It is this statement Ex.PJJ which turned out to be her dying declaration on which the prosecution relies upon. PW13 Gurmit Singh also deposed about having gone to the scene of occurrence on 26.3.1992 and seized a bottle (Ex.PI) containing kerosene oil. He also deposed about having approached the Sub Divisional Magistrate, Patiala on 28.3.1992 with an application for recording the dying declaration of Surinder Kaur and getting the orders of the S.D.M. PW13 also deposed about the Naib Tehsildar Bhajan Singh (PW8) recording the dying declaration of Surinder Kaur at the Rajindra Hospital on 28.3.1992. PW13 also stated about the holding of inquest on the death of Surinder Kaur on 1.4.1992 and about sending the deadbody for post mortem. He also deposed about the arrest of the accused on 11.4.1992.

The learned Additional Sessions Judge, after taking into consideration all the materials placed before him, came to the conclusion that there was no reason for not believing the dying declaration Ex. PJJ recorded by PW13 Gurmit Singh even before he had commenced the investigation although he did not place reliance upon the other dying declaration recorded by the Executive Magistrate Bhajan Singh (PW8). The learned Additional Sessions Judge held that the reason that prompted the accused to commit this heinous crime, was the illicit affair between appellants Tarlok Singh and Harmesh Kaur, which the deceased could not relish. He also observed that when Ajmer Singh came to the bed room of Surinder Kaur and laid on her bed, she came out to the courtyard raising alarm which prompted the accused to commit this crime. Therefore, the learned Additional Sessions Judge while convicting all the accused under Section 147 I.P.C., convicted Tarlok Singh alone under Section 302 IPC and the other accused under Section 302 read with Section 149 IPC and sentenced them as mentioned above. Of course, he acquitted all the accused of the charge under Section 498A IPC.

We have heard counsel for both the sides and perused the records.

So far as the alleged cruelty meted out to Surinder Kaur is concerned, the learned Additional Sessions Judge rightly did not accept the case of the prosecution inasmuch it is clear from the evidence of the prosecution itself that even at the time of the marriage, appellant Tarlok Singh did not demand or accept any dowry from the family of Surinder Kaur. It may be that he had taken some financial assistance from the family of Surinder Kaur later on, since he had to meet a criminal case with regard to the death of his former wife Gurcharan Kaur. But that does not mean that he had demanded dowry or on that account he had treated her with cruelty. Though it is alleged that there were panchayats in this regard, no complaint whatsoever appears to have been given against him on the ground that he demanded dowry and illtreated Surinder Kaur. Even the evidence of the prosecution indicates that he wanted money or scooter only for the purpose of pursuing the criminal case against him. Therefore, the acquittal with regard to the charge under Section 498A I.P.C. is proper, and there is also no appeal against the same by the State.

Therefore, the only motive that survives for examination is the alleged illicit relationship of appellantTarlok Singh with the other appellant Harmesh Kaur, who also happens to be the wife of appellant Ajmer Singh, who is noneelse that the brother of Tarlok Singh. Though Harnek Singh (PW7) is stated to have seen the occurrence as alleged by the prosecution, he did not support the prosecution and turned hostile. Therefore, we are left with the dying declarations which Surinder Kaur is alleged to have made firstly to PW 13 Gurmit Singh, then to Surjit Singh and Shamsher Singh (PWs 5 and 6) and then to the Executive Magistrate Bhajan Singh (PW8).

PW13 S.I. Gurmit Singh stated in his evidence that on 25.3.1992, he received the intimation Ex.PA, and went to the Rajindra Hospital, Patiala but could not record the statement of Surinder Kaur as she was not declared fit to make a statement. PW13 stated that on a message from Rajindra Hospital, he reached the said hospital on 26.3.1992 and after getting the opinion of the doctor that Surinder Kaur was fit to make statement, he recorded the statement Ex. PJJ. Dr. Sudesh Kumar Gulati (PW2) also stated in his evidence that he was on duty on 26.3.1992 and on the police request Ex PC, he made the endorsement that Surinder Kaur was fit to make statement. In cross examination, PW2 Sudesh Kumar Gulati stated that he attended the patient at 5 p.m. on that day, and that he had given the opinion Ex. PC/1 that Surinder Kaur was fit to make statement after examination of the patient. He also stated that he recorded that the patient was fully conscious and talking, and was thus fit to make statement. He had also brought the bedhead ticket relating to Surinder Kaur and denied the suggestions made on behalf of the defence that Surinder Kaur was unfit to make statement. To the question put by the Court he specifically stated that in the bedhead ticket, he had recorded that the patient was fully conscious at 5 p.m. that he gave the opinion Ex. PC/1 at 5.30 p.m., that during this period, he remained in the ward itself and as per the record, there was no deterioration in the condition of the patient during this period. There is absolutely no reason PW2 Dr. Sudesh Kumar Gulati to say that Surinder Kaur was fit to make statement if really she was not, and in fact, none has also been pointed out by defence. Therefore, the contention of the defence that she was not in a position to make a statement to PW13, is wholly unacceptable. It is clear that PW13 S.I. Gurmit Singh had recorded her statement Ex. PJJ on 26.3.1992. There is no reason for rejecting the statement on the alleged ground that Surinder Kaur was not in a fit condition to make the statement. This is also the statement recorded by PW13 Gurmit Singh at the earliest opportunity, i.e. before the commencement of the investigation. Therefore, it cannot be stated to be a dying declaration recorded by the investigating officer during the course of investigation and on that ground, it cannot be rejected though subsequently it turned out to be a dying declaration in view of the death of Surinder Kaur on 1.4.1992.

In this statement, Surinder Kaur has stated about the illicit relationship between her husband Tarlok Singh and the other appellant Harmesh Kaur, and also about the protest made by her which was not relished by Tarlok Singh and Harmesh Kaur. She has also stated that on the date of the occurrence, i.e. 25.3.1992, when she and her husband were in the bed, her husband Tarlok Singh got up at about 10 p.m. and went to the bed room of Harmesh Kaur, whereas, appellant Ajmer Singh came to her bed room and laid down on her bed. According to her, she rushed out to the courtyard hurling abuses and thereafter appellants Ajmer Singh, Harmesh Kaur, Santokh Singh and Amarjit Kaur had come out and caught hold of her saying that they will finish her. She has also stated that her husband Tarlok Singh also came, picked up a bottle of kerosene, poured the same on her and set her ablaze with a matchstick. She has also stated that Harnek Singh (PW7) and Bahadur Lal (their neighbours) had come and chided her inlaws, that her husband and her brothersinlaw slipped away, whereas, her husband came afterwards and took her to the hospital at Nabha and then to the Rajindra Hospital, Patiala. From a reading of this dying declaration, it is seen that even according to Surinder Kaur, the other appellants had come earlier and had caught hold of her, and it is in the meantime that her husband had come, poured kerosene on her and set her ablaze with a matchstick. There is nothing to show that when the other accused appellants came and caught hold of her, they did so in furtherance of any common object or intention to kill her, since there is no evidence to show that they, at that time, knew that Tarlok Singh would come and set her on fire. This is not a case where the prosecution has let in any evidence to show that all the appellants had previously decided to kill Surinder Kaur and in accordance with the common object and preplan, the other accusedappellant caught hold of her while appellant Tarlok Singh set her on fire. As we read the dying declaration, we find that her husband Tarlok Singh had gone to the bed room of Harmesh Kaur, while appellant Ajmer Singh had come to the bed room of Surinder Kaur and laid down on her bed. Even according to the prosecution while her husband Tarlok Singh had gone out to have illicit relationship with Harmesh Kaur, Ajmer Singh, husband of Harmesh Kaur had come to the bed room of Surinder Kaur to have sexual relationship with her, which means that there could not have been a previous plan or common object or intention among the accused to kill her on that day. Of course, such an intention could have developed during the course of occurrence. But, the sequence of events does not point out that such a common intention could have developed even during the course of the occurrence. Because when Ajmer Singh went into the bed room of Surinder Kaur and laid on her bed, Surinder Kaur rushed out to the courtyard hurling abuses. Quite naturally the other accused could have caught hold of her, even if they have done so, to pacify her so that this ignominious incident is not made public to the neighbours. But her husband Tarlok Singh who had come in the meantime, had picked up a bottle of kerosene from the kitchen, poured it on Surinder Kaur and set her ablaze with a matchstick. It is the individual act of Tarlok Singh, and the other accusedappellants cannot be attributed with the common object or intention to cause the death of Surinder Kaur. From the dying declaration given by her to PW13 Gurmit Singh, we are unable to make out any common intention or object on the part of the other appellants to kill Surinder Kaur. Of course it has been stated in the dying declaration that the other accused stated that they will finish her on that day. But, this in our opinion is not enough to attribute a common intention/object on their part to kill her. Because at least appellants Santokh Singh and his wife Amarjit Kaur had no reason whatsoever to kill her. In such circumstances, we find it difficult to hold, in the absence of any other acceptable evidence, that the other accused shared this common intention by merely relying upon these words "we will finish you today". Therefore, while we hold that the dying declaration Ex. PJJ recorded by PW13 Gurmit Singh has been proved to have been made by Surinder Kaur while she was in a fit condition and that the same is reliable, and acceptable, we find that only Tarlok Singh is responsible for causing her death by setting her ablaze, and that the other accusedappellants cannot be held liable for the same with the aid of Section 149 I.P.C. We are of the view that the prosecution has not been able to establish that the other accused also had any common intention/object to kill Surinder Kaur and acted in furtherance of the said common intention object when they allegedly caught hold of Surinder Kaur. Therefore, by relying upon this dying declaration Ex. PJJ, we hold that the prosecution has been able to established the guilt of only accused Tarlok Singh under Section 302 I.P.C., but not the guilt of the other accusedappellants.

Of course, the other dying declaration recorded by the Executive Magistrate Bhajan Singh (PW8) on 28.3.1992 is consistent with this dying declaration Ex. PJJ on material particulars, but the prosecution has not examined Dr. Lajinder Singh, who allegedly gave the opinion about the fitness of Surinder Kaur before the statement was recorded by the Executive Magistrate. PW8 Bhajan Singh stated that he handed over the statement of Surinder Kaur to the Thanedar who was present outside the ward and that he retained the photocopy of the statement of Surinder Kaur with him. The learned Additional Sessions Judge while dealing with this aspect of the prosecution case, held that although this dying declaration is not inconsistent with the dying declaration recorded by S.I. Gurmit Singh, yet the circumstances under which it is alleged to have been recorded, created a doubt about its genuineness, and that he did not send the dying declaration and the request to the Illaqa Magistrate. He also took advise note of the fact that Dr. Lajinder Singh has not been examined. We also agree with these observations of the learned Additional Sessions Judge and hold that this dying declaration recorded by the Executive Magistrate is not reliable.

We also have the evidence of PW5 Surjit Singh and PW6 Shamsher Singh who also stated about their visit to the Rajindra Hospital on 27.3.1992 and about Surinder Kaur telling them about the details of the occurrence in question. But while PW5 Surjit Singh stated that Surinder Kaur told him all the accused set her ablaze, PW6 Shamsher Singh stated that Surinder Kaur told that while the other accused caught hold of her, Tarlok Singh poured kerosene on her and set her ablaze. But the evidence of both of them shows that they had come together and visited Surinder Kaur at the hospital. While PW5 Surjit Singh stated that he cannot say that anybody else talked with her after he went out, PW6 Shamsher Singh stated that Surjit Singh and Jagir Singh did not have any talk with Surinder Kaur, but they kept sitting by his side. If we take into consideration these variations/inconsistencies in their evidence, it is difficult to accept the evidence of either PW5 that all of them set her ablaze or the evidence of PW6 that the other accused caught hold her while Tarlok Singh set her on fire. From their evidence, we cannot come to the conclusion that all the accusedappellants had the common intention/object to kill either or that they caught hold of her in furtherance of such common intention. As pointed out already, the dying declaration recorded by PW13 Gurmit Singh only shows that accusedappellant Tarlok Singh had poured kerosene oil on Surinder Kaur and set her on fire which resulted in her death.

The contention of the learned counsel for the appellants that Surinder Kaur had sustained 90% burn injuries and, therefore, she could not have given such a lengthy statement, is also unacceptable. The evidence of Dr. Parvin Kumar (PW1) is that it is not correct that the patient with 90% burns cannot speak, though with the passage of time the condition of the patient will deteriorate. Of course, he stated that when Surinder Kaur arrived, she was unfit to make statement and that the chances of her being fit to make statement with the passage of time were very remote as the percentage of burns was high. But PW2 Dr. Sudesh Kumar Gulati who had examined her on 26.3.1992 at 5.30 p.m., has given the opinion that she was fit to make a statement, and as pointed out already, there was no reason for him to depose falsely against the accused. He had also recorded in the bedhead ticket that she was conscious at 5 p.m. and the record does not show that her condition had deteriorated between 5 p.m. and 5.30 p.m. when he gave the opinion. Therefore, this contention of the accusedappellant cannot be accepted.

The learned counsel for the appellants contended that the evidence on the side of the prosecution itself clearly shows that it was the husband namely, appellant Tarlok Singh who took Surinder Kaur to the hospital and gave her treatment, and that will be a strong circumstance which will go to negative the case of the prosecution that he had set her ablaze. But this contention of the learned counsel for the appellants cannot also be accepted because, even the evidence of Harnek Singh (PW7) who turned hostile indicates that the appellant Tarlok Singh did not take her to the hospital of his own accord or even try to extinguish the fire. PW7 Harnek Singh stated in his evidence that when he heard the shrieks from the house of Tarlok Singh, he rushed to his house and found Surinder Kaur on fire. PW7 also stated that he shouted at the inmates to extinguish the fire and Tarlok Singh and his brother Santokh Singh rushed out, threw a blanket at Surinder Kaur and started extinguishing the fire. PW7 further stated that it is a fact that it was on his and others'' advice, Surinder Kaur was removed to the hospital. Therefore, we find that this contention of the learned counsel for the appellants does not merit acceptance because it was only after Harnek Singh had shouted at the inmates of the house to extinguish the fire, Tarlok Singh and Santokh Singh had wrapped the blanket around Surinder Kaur. It means that they did not see it fit or necessary to do so till Harnek Singh heard the shrieks, came into the house, and told them to do so. Similarly, it is only on the advice of Harnek Singh and others that Surinder Kaur was taken to the hospital. Therefore, it cannot be successfully contended by the appellants that Tarlok Singh had taken her to the hospital and this conduct negatives the case of prosecution.

Therefore, taking into consideration all these aspects, we are of the view that the prosecution has made out its case only against accusedappellant Tarlok Singh who has to be held guilty for his individual act of causing the death of his wife by pouring kerosene oil on her and setting her on fire. The other accusedappellants cannot be held guilty either under Section 147 or Section 302 I.P.C. with the aid of Section 149 I.P.C., and they will have to be acquitted.

Accordingly, we allow the appeal in part. While sustaining the conviction of and the sentence passed against the accusedappellant Tarlok Singh under Section 302 I.P.C. only, we set aside the conviction of and the sentence passed against the other accusedappellants viz. Santokh Singh, Ajmer Singh, Amarjit Kaur and Harmesh Kaur and acquit them of the charge under Section 147 I.P.C. and Section 302 read with Section 149 I.P.C. also. Consequently, the charge under Section 147 I.P.C. and the sentence with regard to the same passed against Tarlok Singh has also to fail.