JUDGMENT
V.K. Bali, J.
1. Was Jasbir Kaur alias Raj Bala, a young married woman of 22 years, having two male children, burnt alive by her husband Gurbachan Singh and mother-in-law Harnam Kaur alias Satnam Kaur within about three years of her marriage with Gurbachan Singh or did she end her life on her own, is the sole question that needs determination in the present appeal preferred by the appellants, Gurbachan Singh and Satnam Kaur agianst the judgment recorded by the learned Sessions Judge, Ambala, on November 2, 1993, vide which they were held guilty under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- each and in default thereof to further undergo R. I. for two years.
2. The occurrence took place at the house of the appellants in the evening of August 19, 1990, in village Nasirpur, which is at distance of 2 kms. from Police Station Sadar Ambala City. The First Information Report with regard to her death was lodged by Bhagwan Dass, her father, on August 19, 1990, itself at 8.15 p. m. at Manav Chowk which came to be recorded by ASI Gurbachan Singh, P. W. 8. The grief stricken father has got recorded in the report lodged by him that he was doing the work of buffaloes and had five sons and three daughters. He had solemnised the marriage of his youngest daughter Jasbir Kaur alias Raj Bala in April , 1987, with Gurbachan Singh son of Himmat Singh, resident of village Nasirpur according to Hindu rites. He had given dowry in the marriage of his daughter more than his capacity. His daughter often visited her in-law’s house. His daughter had two sons, out of whom elder one was two years old whereas the other was five months old. After the marriage, Satnam Kaur, mother-in-law of Jasbir Kaur and his son-in- law Gurbachan Singh used to harass her again and again to bring more dowry and often said that what she had brought in dowry. His daughter had told him in that regard in his house many times. About five months ago, when his daughter had given birth to a younger son, then her mother-in-law and her husband compelled her to bring one pair of golden ear rings and Rs. 1000/- in cash in dowry. He told them that they were spending their days in very difficult position and that they had already given dowry to his daughter more than theircapacity. At this her mother- in-law and her husband were harassing his daughter again and again. On the eventful day i. e. August 19, 1990 at about 7 p. m. he received an information in his house, which was situated hearby, that his daughter Raj Bala alias Jasbir Kaur had set herself on fire after sprinkling kerosene oil on her due to the atrocities committed by her husband and her mother-in- law. He along with his son Purshotam Lal and his wife Sumitra Devi reached the house of Gurbachan Singh at village Nasirpur. They saw that Jasbir Kaur was lying in burnt condition. He sent her along with his son Purshotam Lal to Civil Hospital, Amabla City for treatment. He was going to the police station to lodge the report that Gurbachan Singh, ASI, Police Station Sadar Ambala City met him at Manav Chowk, Ambala City. On the basis of the statement made by Bhagwan Dass, father of the deceased, formal FIR came to be recorded at 8.30 p. m. on August 19, 1990, itself. The FIR was, however, at that stage registered under Section 498-A of the Indian Penal Code which was later converted into Sections 302/304-B/34/498-A IPC and it is under these sections of the IPC that charge was framed against the appellants. The special report with regard to the incident reached the Magistrate concerned on August 19, 1990, itself at 10.30 p.m.
3. The prosecution, with a view to bring home the offence against the appellants, examined three doctors, namely, Dr. Anand Kumar Jindal, Dr. Rajesh Chaudhary and Dr. S.D. Arora as P. W. 1, P. W. 2 and P. W. 10 respectively. Dr. A.K. Jindal had examined Jasbir Kaur on August 19, 1990 at 8. 15 p.m. He stated that the patient was conscious. She was well oriented in time and space. Pulse was 108 per minute. Conjunctiva was congested. Pupils were of normal size and reacting to light. Skin over whole of the body was burnt. At places there was reddish denuded area. The hair of the scalp were burnt and there was smell of kerosene present. She was kept under observation by the doctor. On the same very day at about 11.20 p.m, ruqa Ex. PB was sent to the Incharge, Police Post No. 3, Ambala City about the death of the patient Jasbir Kaur. In cross-examination, the witness stated that the patient was conscious but in precarious condition. She was crying with pain and was suffering from 100% burns. The witness further stated that the patient did not make any statement to him regarding the circumstances in which she had received burns injuries. The suggestion given to the witness that patient was unconscious at the time when she was brought to the hospital was denied by him. Dr. Rakesh Chaudhary, P. W. 2 stated that on August 20, 1990, Doctor Incharge Civil Hospital, Amabla City had formed a panel of doctors for conducting post-mortem on the dead body of Jasbir Kaur. The panel consisted of himself and Dr. S.D. Arora. On that day they had conducted post-mortem on the dead body of Jasbir Kaur and found that it was a dead body of moderately built and nourished female. Her mouth was open. White metal Karra and three blue coloured glass bangles were present on the left fore-arm. White metal ring was present on the ring finger of the right hand. Both the limbs (upper and lower) were partially flexed. Arms were somewhat fixed and fingers of both the hands were hooked like claws. Rigor mortis was present in all the four limbs. Hair were burnt and singeing of the scalp hair was present. Membranes were congested and brain was healthy. Walls, ribs and cartiages were healthy. Pleurae was congested. Little sooty carbon particles were seen in the trachea. Right and left lungs were congested. Pericardium was healthy and left chamber of the heart was healthy whereas right chamber was full of blood. Large vessels were healthy. Burn injury was present on abdominal wall. Mouth was healthy. Oesophagus contained black sooty material. Semi digested food matter was present in the stomach. Mucous membrane of the stomach was reddened. Small intestines contained semi digested food matter. Mucous membrane was reddened. Large intestines contained faecal matter. Liver was pale and spleen was congested. Kidneys were congested. Urinary bladder was empty. Organs of generation external and internal were healthy. Extensive burn injuries superficial to deep were present over whole of the body, sparing only partial soles of both the feet. Singeing of the hair and eye brows were seen. Blackening was present at various places. Smell of kerosene oil was present in the partially burnt scalp hair. Peeling of the skin at various places was present over whole of the body. Vesicles formation containing serous fluid was present at various places. Line of redness was present. The death in the opinion of panel of doctors was because of shock and asphyxia as a result of extensive burns which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The duration between, death and post-mortem was within 24 hours. Dr. S.D. Arora stepped into the witness box at almost conclusion of the trial and he stated that on August 19, 1990, he was posted at General Hospital, Ambala City, as Medical Officer. On August 20, 1990, he had conducted post-mortem examination on the dead body of Jasbir Kaur along with Dr. Rakesh Chaudhary. He further stated that he had worked with Dr. A.L. Jindal for about two years. However, he stated that signatures at point ‘A’ on Ex. PJ appeared to be that of Dr. A.L. Jindal but he was not definite. It requires to be mentioned here that before death Jasbir Kaur had given a dying declaration which was recorded by a Magistrate. This dying declaration had an endorsement of Dr. A.L. Jindal and while examining him the Public Prosecutor, conducting the trial on behalf of the State, had completely lost sight of the fact that besides getting information from Dr. Jindal with regard to medical examination of Jasbir Kaur, the witness was also to be questioned with regard to dying declaration. This mistake was realised later, although during the currency of the trial and, therefore, an application was moved to recall the said witness. When on few occassions attempt was made to serve the witness but he could not be served, the necessity arose then to examine Dr. S.D. Arora as P. W. 10. The said doctor could not, however, definitely identify the signatures of Dr. A.L. Jindal on the dying declaration, Ex. P J. The prosecution alsoexamined Bhagwan Dass, father of the deceased Jasbir Kaur as P. W. 5, Gobind Lal, Sarpanch of village Nasirpur as P. W. 6 and Purshotam Lal, brother of the deceased as P. W. 7. Bhagwan Dass, in his deposition in the Court, reiterated the facts and circumstances leading to the death of his daughter as were given by him while getting the FIR recorded. He further stated that at the time of birth of second child of his daughter, her husband Gurbachan Singh and her mother-in-law Satnam Kaur had demanded ear ring and Rs. 2000/ – in cash and that it was told to him by his daughter when she visited his house. Appellant Gurbachan Singh had given a sword blow to his son Gurdarshan Lal about three months prior to the death of his daughter and a panchayat was convened which consisted of Gobind Ram, Darshan Singh, Raju Singh and I urshotam Lal. In the panchayat, a compromise was arrived at that appellant Gurbachan Singh and his mother Satnam Kaur would not harass and demand dowry from Jasbir Kaur. The said compromise was reduced into writing. A copy of the said compromise, witness stated, had been handedover to the police. He produced original compro- mise, Ex. PK which he had brought in Court when he gave the statement. After compromise, the witness further stated, he had sent his daughter Jasbir Kaur with Gurbachan Singh and thereafter they lived peacefully for two/three months and it is on August 19, 1990. that he received an information about the death of his daughter Jasbir Kaur through Mangat Singh, brother of appellant Gurbachan Singh. Manual Singh had informed him that Gurbachan Singh and his mother Satnam Kaur had burnt his daughter Jasbir Kaur and thereafter he (Mangat Singh) had run away after giving the information. He immediately left for village Nasirpur and there his daughter told him that she had been burnt by her mother-in- law and her husband. Coming now to the cross examination and, we may mention here that we arc referring to only that portion of the cross-examination on which the defence relies in support of the appeal, it shall be seen that therein the witness stated that the house of the accused was about 1-11/2 kms. from his house and that Surinder Kaur, sister of Gurbachan Singh was married to his son on the following day when his daughter was married in the form of an exchange. At the time of marriage and earlier thereto, there was no demand of dowry from both sides in respect of both marriages. The accused had, however, started demanding dowry after the marriage. He also slated that when he reached Gurbachan Singh’s house, his daughter told him that she had been set on fire by Gurbachan Singh after Satnam Kaur had poured kerosene oil on her. He, however, denied that in his report to the police he had stated that he had received information about his daughter Jasbir Kaur that she set herself on lire getting sick of the accused. Since it was so staled by him while lodging the report, he further stated that the police might have written about it on its own. He denied having known Madan Lal and Vijay Dhahia and as to whether they were present amongst many persons who had gathered over there when he hud gone to the house of the accused. He also stated that the police had come to the spot alongwith him and it is thereafter that he deputed his son Purshotam La) to accompany his daughter to the Civil Hospital. P. W. 6 Gobind Lal, who was Sarpanch of village Nasirpur. stated that he knew Bhagwan Dass, and Jasbir Kaur alias Raj Bala, who was married to Gurbachan Singh in the year 1987. Roshan Lal son of Bhagwan Dass was married to the sister of Gurbachan Singh. Gurbachan Singh and Jasbir Kaur were living together but their relations were not cordial. Bhagwan Dass had informed him that the relations between his daugther Jasbir Kaur and her husband Gurbachan Singh were not cordial and they had been quarrelling over their children. They had two children and the younger one was three-four months old. Gurbachan Singh had desired his wife to bring a Chain of gold from her parents over the birth of his second male child. There was no dispute between Jasbir Kaur and her husband Gurbachan Singh as there was a compromise between Gurbachan Singh and Bhagwan Dass. Gurbachan Dass had caused injuries toGurdarshan Singh son of Bhagwan Dass. The compromise was reduced into writing and Ex. PK was the original attested by him as also by other witness and after compromise, Bhagwan Dass had never complained him regarding behaviour of in-laws of Jasbir Kaur. After receiving information regarding the death of Jasbir Kaur, he went to the spot where the police was already present. The police had recovered from the place of occurrence one bottle of kerosene oil with broken head and a match box alongwith some ash from the spot. In cross-examination he stated that at the time of marriage of Gurbachan Singh with Raj Bala and marriage of Surinder Kaur, sister of Gurbachan Singh with Roshan Lal, there was no demand of dowry. He also stated that one Vijay Kumar, who hails from Bihar, resided as a tenant in the house of Krishan Lal which was situated close to the house of Gurbachan Singh, and that Madan Lal resided in a house adjoining to Gurbachan Singh’s house. When he reached, injured body of Jasbir Kaur was being taken to the Civil Hospital and Madan Lal and Vijay Kumar aforesaid were present amongst others who had gathered at the house of accused. On the spot, he learnt that Vijay Kumar had made efforts to extinguish the fire. The people gathered over there were talking about it and Vijay Kumar had also told him the samelhing. On his asking, Vijay Kumar had told him that Satnam Kaur had gone out of the house of the fields to answer the call of nature and Shanti Devi had confirmed this fact to him that she and Satnam Kaur had gone to answer the call of nature. The witness further stated that neither he asked nor Vijay Kumar told him about the presence or absence of Gurbachan Singh and that police party had reached during night and, as far as he recollected, the police party had reached at about 9.10 p.m. P. W. 7. Purshotam Lai stated that his brother Roshan Lal was married to Gurbachan Singh’s sister with difference of only one day. Gurbachan Singh and Satnam Kaur resided in two room apartment of their house and were livingjointly. Gurbachan Singh had started mat-treating Jasbir Kaur after two-three months of the marriage. Satnam Kaur had also been ill-treating her. Jasbir Kaur had two children and her youngest child was about four months old at the time of occurrence. He reaffirmed the version of his father with regard to demand of pair of earrings and Rs. 2000/- on the birth of second male child and with regard to compromise brought about by panchayat. In cross-examination, he stated that Gurbachan Singh appellant had sold away the earrings made of gold of his sister Jasbir Kaur and he had spent the sale proceedson liquor consumption. Accused Gurbachan Singh had forcibly taken away the said golden ear rings from his sister Jasbir Kaur. He also stated that Jasbir Kaur was in full senses when they reached there and that Gobind Lal Sarpanch had also reached at the spot. He along with his mother and accompanied by Gurbachan Singh had taken Jasbir Kaur in injured condition to the hospital. He further stated that Gurbachan Singh had remained with him in the same very room where Jasbir Kaur was lying in the hospital and when the Magistrate had arrived in the hospital, he and Gurbachan Singh were present over there. Magistrate had made him and Gurbachan Singh to leave the room where Jasbir Kaur was lying on the hospital bed. The Magistrate had not recorded his statement but he had made him and Gurbachan Singh to sign the papers prepared by him. The Magistrate had reached the hospital at about 9-930 p.m. whereas Jasbir Kaur was taken to hospital at about 7.30 p.m. He further stated that he and Gurbachan Singh remained with Jasbir Kaur throughout, till the arrival of the Magistrate. He further stated that he did not make a statement to the police that his sister Jasbir Kaur, getting fed up with atrocities committed on her by her husband, had committed suicide. Since his statement before the police was like that, he was confronted with the said statement. He also stated that Surinder Kaur, sister of Gurbachan Singh had filed proceedings under Section 125 Cr. P. C. against his brother Roshan Lal, who had undergone one month’s simple imprisonment on account of default of payment of maintenance allowance. He also stated that Surinder Kaur had got him, his brother and parents challaned in a case under Section 498-A IPC. The prosecucion also examined Gurbachan Singh ASI as P. W. 8, Joginder Singh, Inspector, as P. W. 9, and Vishnu Dutt, Sub- Inspector, as P. W. 11, who gave details of the investigation conducted by them in the case. In cross-examination, P. W. 9 stated that he had not arrested Satnam Kaur because her daughter-in-law had expired and people were coming to offer condolence. He further stated that she was never arrested because there was no evidence against her. Additional Superintendent of Police had also found Satnam Kaur to be innocent. On August 19, 1990, he had recorded statements of Vijay Kumar, Madan Lal and Shanti Devi but none from the complainant party made any statement on August 19, 1990, and the statements of witnesses recorded on August 19, 1990, showed that Gurbachan Singh and Satnam Kaur were not present at the spot. He further stated that the statements of witnesses recorded on August 19, 1990, also revealed that they had tried to put out the fire. He further stated that according to his investigation, Satnam Kaur was residing separately from her son. Vide statement dated May 24, 1993, learned Public Prosecutor gave up P. Ws. Roshan Lal and Lachhman Dass as unnecessary and P. Ws. Vijay Kumar and Madan Lal as having been won over by the accused.
4. The most material witness in this case examined by the prosecution is P. W. 4 Shri U. B. Khanduja, Additional Chief Judicial Magistrate, Jagadhri, who stated that on August 19, 1990, he was posted as A. C. J. M., Ambala City. On that day, application, Ex. PH was put up before him by ASI Gurbachan Singh of Sadar Police Post. On receipt of the said application, he visited Civil Hospital, Ambala City and obtained doctor’s opinion about the fitness of the patient to make statement. Doctor on duty, Mr. Jindal, declared Jasbir Kaur patient fit to make statement. He thereafter recorded statement, Ex. PJ of Jasbir Kaur. He further stated that the statement Ex. PJ was in his hand and bears his signatures. Dr. A.K. Jindal had also attested the said statement as he was present at the time or recording of the same. Dr. Jindal had given opinion, Ex. PJ/1 about the fitness of the patient to make statement and he had recorded presence of Purshotam Lal near the patient when he reached there. He had directed him to leave the room which he did. In cross-examination, he stated that he did not make any enquiry about the time of admission of Jasbir Kaur in the hospital but he certainly found her fit to make statement since she made the same before him. He did not give any certificate at that time that the patient was fit to make statement and had remained conscious throughout. He had not given any certificate at the bottom of the statement and he had recorded the statement in question- answer form. He had initially asked as to what had happened and she had made statement recorded by him. He had not mentioned in initial introduction of his asking as to what had happened. He also stated that he had started recording her statement at 9.25 p.m. and concluded it at 9.40 p.m. and the patient had said ‘Hai Hai’ (the words normally used by a person in pain and agony) once or twice but he did not recollect if while making statement she had cried.
5. The appellants, when examined under Section 313 of the Code of Criminal Procedure, denied their participation in the crime alleged against them. It was stated by Satnam Kaur that at time of occurrence, she had gone for easing herself and when she came back, she found Jasbir Kaur lying in the house in burnt condition. Purshotam Lal and Bhagwan Dass had come and taken her to the hospital. Her son had come subsequently and he then left for hospital. She had followed him. She was not present in the house at the time of occurrence. Gurbachan Singh appellant stated that at time of occurrence, he was away to bazar and he was informed in the bazar that his wife had been burnt. He came to his house and was informed by his neighbours Madan Lal and Vijay Kumar that his wife had been taken to the hospital by Bhagwan Dass and Purshotam Lal. When he reached the hospital, he found them talking to his wife. He had, however, gone to bring medicines as suggested by the doctor. The police was present and the Magistrate had come. He had asked Bhagwan Dass and Purshotam Lal to go out and both of them had gone out. His wife had earlier given her earrings for investing the same in his business. Bhagwan Dass and Purshotam Lal were annoyed and wanted him to get the earrings prepared but he had no money for the same. Because of this frustration and anger, his wife had committed suicide. The appellants led no evidence in defence.
6. After resultant trial, whereas the learned Sessions Judge acquitted the appellants of the charge framed against them under Sections 304-B and 498- A IPC, he convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code. It is on account of scanty and discrepant evidence led by the prosecution on the question of demand of dowry and Jasbir Kaur being subjected to mental or physical torture that the charge against the appellants under Sections 304-B and 498-A IPC was held not proved and, therefore, on account of that, by giving them benefit of doubt, the appellants were acquitted under the said charges.
7. We have heard Mr. R.S. Cheema, learned Senior Advocate, appearing on behalf of the appellants and Mr. Varinder Singh, learned Deputy Advocate General, Haryana and with their assistance, have gone through the records of the case. Mr. R.S. Cheema, learned counsel for the appellants vehemently contends that the first version of the informant i. e. father of the deceased and her real brother was that Jasbir Kaur had committed suicide. Dying declaration was an out-come of tutoring done by the brother of the deceased, who, it is proved on records, was present with his sister when she was a live and was asked to quit the room only when the Magistrate directed him to do so and the dying declaration, even though recorded by the Magistrate, should not be given that credence which it might normally deserve for the reason that there is no cogent and convincing evidence on records to show that Jasbir Kaur was in a fit condition to make the statement, contends the learned counsel. We have given our thoughtful consideration to the points raised by learned defence counsel, noted above but find no merit in either of these.
8. It is true that father of the deceased while lodging the FIR stated that on August 19, 1990, at about 7 p.m. he had received an information in his house that his daughter Raj Bala alias Jasbir Kaur had set herself on fire after sprinkling kerosene oil due to atrocities committed upon her by her husband and mother-in-law but the source of information i. e. as to who told him that his daughter had set herself ablaze, is not forthcoming from the statement made by him before the police on August 19, 1990. This source of information was revealed by him when he appeared as P. W. 5 in the Court. There he stated that the said information was received by him through Mangat Singh, brother of accused Gurbachan Singh and that he had informed him that his mother Satnam Kaur had burnt his daughter Jasbir Kaur and thereafter he i. e. Mangat Singh had run away after giving the information. To some extent, his statement in the Court is an improvement from his earlier statement made by him before the police while getting the FIR recorded but the crucial question is that while lodging the FIR he had got an information with regard to the incident in question i. e. burning of his daughter from none other than the brother of the appellant and it is obvious that the son would not have involved his own mother in murdering her daughter-in-law. The father of the deceased had no other information while lodging the FIR and he also did not know as to whether it was a case of suicide or a murder and, as mentioned above, he was told that his daughter had received burn injuries by the brother of the appellant Gurbachan Singh. Insofar as the statement of brother of deceased, P. W. 7, made before the police is concerned, it is true that on the next day when Jasbir Kaur died, he did state that his sister had committed suicide but after scanning through the evidence, we are convinced that the one, who was entrusted with the case and had recorded his statement, i. e. the investigating officer, was rather inclined favourably to the accused and had not conducted the investigation in an impartial manner. Normally, it is the defence which picks up weak threads in the prosecution case which might include defective or partial investigation conducted in a crime by an investigating officer but in a given case, it is possible that the prosecution, to some extent might itself criticse partial or interested investigation with a view to droup up its case and bring to the notice of the Court that such partial or interested investigation can not blunt out the other evidence which is trustworhty, convincing and inspires confidence. The role of an investigation comes to an end when challan is put in the Court under Section 173 Cr. P. C. Thereafter, it is the Court which is required to determine the complicity or otherwise of an accused in commission of crime. In a given case thus it is possible for the Court to reject interested or biased investigation or a part thereof and to accept the prosecution version which is based upon other independent and reliable evidence. The Court is not obliged to accept as true all steps that might have been taken by the investigating agency in detecting the crime. As mentioned above, the role of an investigator is simply to collect evidence, if any, against a person accused of a crime and bring it to the notice of the Court. If all steps taken by the prosecution and the investigation done by it are accepted to be absolutely true and the Court is obliged to accept the same, it would result into an anomalous situation. The interested and biased investigator would, in that event or situation, be able to play havoc and leave such weak spots intentionally that might ultimately result in only acquittal and nothing else.
9. Jasbir Kaur had concededly made a statement ‘before she died. We shall, however, comment upon the authenticity of the dying declaration and as to whether the same is result of tutoring or was voluntary, without any pressure of any kind whatsoever, and was as such absolutely truthful, but it is not disputed nor it could be disputed that she did make a statement before a Magistrate.
10. It has come on records of the case that immediately after the Magistrate had recorded the statement of Jasbir Kaur, a copy of the same was handed-over to the investigating officer and what Jasbir Kaur had stated in her dying declaration was no more a secret. It appears to us strange that even though the brother of the deceased had come to know or had an occasion to come to know that his sister had involved the appellants, in murdering her by setting her ablaze, he would have still narrated to the police that his sister had committed suicide, on a day after the dying declaration was made by Jasbir Kaur. On one hand, brother of the deceased is being criticised for tutoring his sister to make a statement so as to involve the appellants in the crime of murdering her and on the other hand it is the brother, who gave a different version to the police on the next day by stating that his sister had committed suicide. Read in this context, we are more inclined to accept the statement of the brother of deceased that he had not made such statement to the police that his sister Jasbir Kaur had committed suicide being fed up with the atrocities committed upon her by her husband, with which statement he was confronted when he was cross-examined. Bhagwan Dass as well, when he appeared as P. W. 5, stated that he never mentioned in his report to the police that he had received information about his daughter Jasbir Kaur that she had set herself on fire getting sick of the accused. It requires to be mentioned here that as per the version of this witness when on receipt of information, he had gone to see his daughter at the house of the appellants, he had found his daughter Jasbir Kaur to be conscious and she had told him that she was burnt by her mother-in-law and her husband. It is thereafter that he had gone to lodge the report leaving his son there to accompany his daughter to the Civil Hospital, Ambala City. It shall be appropriate at this stage to mention that despite there being a dying declaration having been made by Jasbir Kaur, a copy thereof was handed-over to the investigating officer on the same very day, the police had chosen to register a case under Section 306 IPC, which later, of. course, on the objections raised by the prosecuting agency, was changed or converted to 302/304-B/ 498-A IPC. Not only that, the investigating officer of the case had chosen to send the mother-in-law of the deceased in column No. 2, i. e. in his view, she was found innocent after investigation. It really baffles us as to how he could possibly come to such a conclusion when dying declaration of Jasbir Kaur was before him and which dying declaration, had been recorded by the Additional Chief Judicial Magistrate. All that could possibly be explained by him was that he had recorded statements of some neighbours where the deceased along with the appellants was residing and according to them. Jasbir Kaur had committed suicide but if he had actually chosen to rely upon such statements, no case at all should have been registered against the appellants. This we are commenting in view of the fact that the investigation officer did record statement of some neighbours, even though such statements were of no meaning and consequence, being statements of persons who were residing in adjoining houses and would have naturally been more close to the appellants. Further, the investigation officer not only chose to record the statements of neighbours, who, as mentioned above, did not support the prosecution version and totally exculpated the appellants, but even cited them as prosecution witnesses. It once again baffles us as to how such persons could be cited as prosecution witnesses, who. as mentioned above, were neither supporting the brother and father of the deceased of their version that Jasbir Kaur was done to death nor were they even supporting them to the extent that Jasbir Kaur had committed suicide being fed up of the maltreatment meted out to her by her in-laws. It is for that reason, it appears to us, that the learned Public Prosecutor was constrained to give them up as having been won over, even though they stood won over, if at all, even before their statement was recorded by the police.
11. At this stage, it shall be appropriate to mention that right since beginning the father and brother of the deceased Jasbir Kaur were complaining about that investigation was not going on the right lines and the investigating officer, for the reason that he was influenced on the asking of a sitting Minister, was not correctly recording their statements. They expressed their apprehensions in the very beginning when they made an application before the trial Judge that the appellant Satnam Kaur had been wrongly shown in column No. 2 and not sent for trial despite the fact that there was dying declaration made by Jasbir Kaur before her death and which thoroughly involved her in the crime. This application was allowed and father of the deceased was examined as P. W. 5. It is thereafter that appellant Satnam Kaur was summoned to stand the trial. The application aforesaid was filed on July 26, 1991, in the trial Court.
12. It is now time to assess the authenticity and reliability of dying declaration which, concededly, can be the sole basis for recording a finding of guilt. Gurbachan Singh ASI, Police Station, Sadar Ambala addressed an application to the Ilaqa Magistrate, Ambala for recording the statement of Jasbir Kaur wife of Gurbachan Singh. He mentioned in that application that patient Jasbir Kaur wife of Gurbachan Singh was admitted in the hospital at Ambala City as a burns case, and that she has 100% burns and that after reaching Civil Hospital, her statement has to be recorded. This application has an endorsement made by the Additional Chief Judicial Magistrate, Ambala at 9.25 p. m. on August, 19, 1990 that “I have reached Civil Hospital, Ambala City to record the statement of Jasbir Kaur wife of Gurbachan Singh. Doctor on duty to report whether she is fit to make statement”. It has also an endorsement made by Dr. A.K. Jindal, at 9.25 p.m. on the same very day i. e. August 19, 1990, that “fit for statement”. The statement has been recorded in question-answer form which runs as follows :-
Stated that I have been put on fire by my husband and mother-in-law by sprinkling kerosene.
Q : Why have you been set on fire?
Ans : They used to say that I should go to my parents’ house.
Q : Why they used to say for going to parents’ house?
Ans : They used to say as to why I make the children to cry.
Q : Was there any dispute about dowry?
Ans: It was not today. But it was being demanded some days ago.
Q : Who lit the stick?
Ans : I do not know as to who lit the stick.
Q : Who had poured the kerosene?
Ans: My monther-in-law.
Q : In which container the oil was?
Ans: The kerosene was in the bottle.
Q : Was there any other dispute in the house?
Ans : No. There was no other dispute”.
The dying declaration has been signed by Shri U. B. Khanduja, Additional Chief Judicial Magistrate. Ambala. It came to be recorded by him at 9.40 p.m. on August 19,1990. As mentioned under the signatures of Mr. Khanduja, before the statement aforesaid was recorded, he mentioned that the statement should be recorded and he signed the same on August 19, 1990. It was also mentioned prior in point of time that Shri Purshotam Lal son of Shri Bhagwan Dass was standing by the side of patient. He was requested to leave the patient so that the statement is recorded and that he had agreed to leave. The brother has also written in his hand that he was present with his sister when the Magistrate came. After recording the statement, Magistrate has also mentioned that statement was recorded in the presence of Dr. A.K. Jindal, and a copy of the same was given to Gurbachan Singh, ASI. The Magistrate has made another endorsement that Left Thumb Impression could not be got affixed due to 100% burns. This has also been signed by the Magistrate separately at 9.41 p. m. on August 19, 1990. At 9.42 p.m. Dr. A.K. Jindal made an endorsement that when dying declaration, Ex. PJ/1 was recorded, he had been present throughout and she (Jasbir Kaur) remained conscious and fit till the end of statement taken by Shri U. B. Khanduja. It has already been mentioned that when Dr. A.K. Jindal came into the witness box, the Public Prosecutor did make a serious lapse by not questioning the doctor with regard to dying declaration and when he realised his mistake, he made an application lor resummoning him which application was allowed. However, for nonavailability of Dr. Jindal at that stage, he could not be resummoned and, thus, re-examined. Another doctor, who was in the panel and conducted post mortem on the dead body of Jasbir Kaur was. of course, called, but as mentioned above, he could not definitely identify the signatures of Dr. A.K. Jindal. The Magistrate appeared in the witness box as P. W. 4. He stated that on August 19, 1990 he was posted as Additional Chief Judicial Magistrate. Ambala City. On that day. application, Ex. P.H, was put up before him by Assistant Sub Inspector Gurbachan Singh of Sadar Ambala Police and on receipt of the said application, he visited Civil Hospital. Ambala City and obtained doctor’s opinion about the fitness of patient to make a statement. Duty Doctor Mr. Jindal declared Jasbir Kaur patient fit to make statement, and thereafter he recorded statement, Ex. PJ of Jasbir Kaur. He further stated that statement Ex. PJ was in his hand and bears his signatures. He also stated that Dr. A.K. Jindal had also attested the said statement at that time since he was present at the time of recording of statement and he had given opinion, Ex. P.J/1 about the fitness of the patient to make statement. He had recorded presence of Purshotam Lal near the patient when he reached there. He had directed him to leave the room which he did. In his cross-examination, he stated that he did not make any enquiry about the time of admission of Jasbir Kaur in the hospital and certainly found her fit to make the statement since she made the statement before him. He also stated that he did not give any certificate at that time that the patient was fit to make statement and had remained conscious throughout. He was also asked as to why he had suggested the patient that there was a dowry dispute. This question was not allowed as, in view of the learned Sessions Judge conducting the trial, the same was in the argumentative form. Before the matter might proceed any further, it may be recalled that Dr. A.K. Jindal has been examined as P. W. 1 and he stated that Jasbir Kaur was conscious and well oriented to time and space. Her pulse was 108 per minute. Pupils were of normal size and reacting to light. The defence has not cross-examined this witness with regard to dying declaration or the endorsement made by him with regard to patient being fit to make a statement at the time when her statement was recorded. The learned counsel for the appellants, on the basis of evidence, fully detailed above, with regard to dying declaration, contends that when Dr. A.K. Jindal, even though examined, was not questioned with regard to dying declaration and the patient being fit to make statement, a finding should be returned that if he was to be examined, he would have, in all probability, not stated that the patient was fit to make a statement. There is no other reliable evidence from where it could be madeout that Jasbir Kaur was in a fit condition to make a statement. Learned counsel for his contention aforesaid, relies upon a judgment of the Apex Court in Kanchy Kouramma v. State of Andhra Pradesh, 1996 SCC (Cri) 31. He also contends that besides non-examination of the doctor on the crucial question, which in itself should prove fatal to the prosecution version, the Magsitrate also conducted himself in such a manner and asked such questions which were of suggestive nature, the dying declaration should not be given any credence particularly when it is proved on records that brother of the deceased was present with Jasbir Kaur throughout till immediately before her statement was recorded and, thus, there was ample opportunity for him to have tutored his sister to involve the appellants.
13. We have given our thoughtful consideration to the points urged by learned defence counsel but find no substance therein. It is true that the Public Prosecutor did really make a mistake in not questioning Dr. Jindal with regard to dying declaration but that lapse, on the basis of other evidence, would not deteract from the prosecution version. Dr. Jindal had medically examined Jasbir Kaur at 8.15 p.rm on August 19, 1990, at which time, as per his version, she was conscious and well oriented in time and place. As mentioned above, there is absolutely no cross-examination adverted to this witness with regard to consicousness of Jasbir Kaur at 8.15 p. m. The Magistrate recorded her statement at 9.25 p.m. and finished recording of statement at 9.40 p.m. The Magistrate in no uncertain terms stated that he had obtained doctor’s opinion about the fitness of the patient to make a statement and Dr. Jindal had declared Jasbir Kaur fit to make statement and it is thereafter that he had recorded the statement of Jasbir Kaur, Ex. P. J. The Magistrate also proved the opinion of the doctor, Ex. PJ/1 about the fitness of the patient. There is hardly any cross-examination, worth the name, on this crucial issue i. c. Jasbir Kaur being conscious at the time of making her statement. This witness has not been even suggested that Dr. A.K. Jindal had not given certificate of fitness as was found on Ex. PJ and that same was obtained lateron. It was not even suggested that Dr. Jindal was not present at the time when he had recorded statement of Jasbir Kaur. Non-examination of Dr. Jindal. thus. on the relevant questions pertaining to dying declaration, in the facts and circumstances of the case, is wholly immaterial. It is amply proved on records of the case by independent testimony of the Magistrate and Dr. A.K. Jindal that Jasbir Kaur was conscious at the time when she made her statement, Ex. PJ. The facts of Kanchy Koumramma’s case, (1996 SCC (Cri) 31) (Supra) reveal that not only that doctor was not examined so as to state that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration but even the mother of the deceased had specifically stated that the condition of patient was not good and that she was not in a fit condition. It is for that precise reason that a doubt was created as to whether the patient was actually in a proper mental condition to make a consciously truthful statement. Further, the Magistrate, who had recorded the dying declaration, did not satisfy himself that the deceased was in a proper mental state to make a statement. He had not recorded his satisfaction before recording the dying declaration and he had also not obtained the opinion of the doctor about the fitness of the patient to make a statement. In the present case, the Magistrate obtained the opinion of the doctor immediately before recording the statement of Jasbir Kaur as to whether she was fit to make a statement. He proved the endorsement made by the doctor when he appeared as PW4 in the witness box. From his deposition, it also appears that he himself had also satisifed with regard to mental state of Jasbir Kaur. This judgment, thus, in our view, does not advance the case of the appellants.
14. Insofar as the Magistrate putting leading questions to the patient with regard to demand of dowry is concerned, it can perhaps be said that such a question should not have been asked but in view of the fact that in the very first sentence Jasbir Kaur had stated that she has been put on fire by her husband and mother-in-law by sprinkling kerosene oil, the argument noted above, pales into insignificance. It is true that on the question as to who lit the match stick, answer of Jasbir kaur was that she did not know but again, as mentioned above, in the very first sentence she had stated that she had been put on fire by her mother-in-law and husband by putting kerosene oil on her. In so far as tutoring part is concerned, the brother was shunted out of the room by the Magistrate before statement of Jasbir Kaur could be recorded. It has not been shown by the defence as to why the brother was interested in involving the appellants in a more heinous crime and.if that be so, there was on occasion for him to have tutored his sister to involve the appellants in murdering her. That apart, the defence version is that the husband of the deceased was also very much there in the hospital and had gone to fetch medicines only at the time when the dying declaration was recorded. If that be so, there was no question for the brother to have tutored his sister. Even though dying declaration alone without there being any corroboration is in itself enough to sustain conviction but in this case there is ample corroboration to the dying declaration coming forth from sworn testimony of brother and father of the deceased. Before we part with this case, we would like to mention that the fact that Jasbir Kaur died at the house of the appellants has not been questioned. There is hardly anything suggested which might put the Court to a thinking as to whether there were some reasons compelling or otherwise for Jasbir Kaur to have committed suicide. All, in that direction, that has been suggested is that she was not happy for her husband had sold the ear rings and was not substituting the same by buying another pair of rings. There is no evidence at all that Jasbir Kaur was either of a shaky nature or had an ill-temparament or was suffering from any disease. Demand of a new pair of ear rings and non-fulfilment thereof, it appears to us, could not have compelled the lady, who had two minor male children, to end her own life. 15. For the reasons stated above, we are of the firm view that the prosecution has been able to prove that the appellants are guilty of crime alleged against them beyond shadow of reasonable doubt and that being so, the order of conviction recorded against them by the trial Judge is upheld and the present appeal, being devoid of any merit, is dismissed.