Criminal Appeal No. 569-DB of 1999 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Criminal Appeal No. 569-DB of 1999
Date of decision: 11.7.2008.
Dimple .....Appellant
Versus
State of Punjab ...Respondent
2. Criminal Appeal No. 588-DB of 1999
Rajinder Kumar .....Appellant
Versus
State of Punjab ...Respondent
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CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE S. D. ANAND
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Present: Mr. R.S. Cheema, Senior Advocate with
Mr. Pawan Girdhar, Advocate for the appellant
in Criminal Appeal No. 569-DB of 1999.
Ms. Baljeet Kaur Mann, Advocate for the appellant
in Criminal Appeal No. 588-DB of 1999
Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab.
S. D. ANAND, J.
Appellants Rajinder Kumar and Dimple (along with three
others namely, Ashwani Kumar, Shamma and Madhu Bala) were
tried on charges under Sections 498-A, 302, read with Section 149
IPC, 304-B and 506 IPC ( in case FIR No. 30 dated 1.4.1998, Police
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Station Division No. 2, Ludhiana).
Appellants Rajinder Kumar and Dimple were convicted
under Section 302 IPC for having committed the murder of Sunita
Rani in furtherance of their common intention; while the above three
persons were acquitted.
Sunita Rani was married to appellant Rajinder Kumar
about 1-1-1/2 years prior to her death. Appellant Dimple is wife of
Ashwani Kumar alias Sonu, a brother of Rajinder Kumar. Ashwani
Kumar earned a verdict of acquittal. Sunita Rani used to resent the
growing intimacy as between Rajinder Kumar and Dimple appellant.
Rajinder Kumar would not care for her and would tell her that he
would not refrain from continuing the relationship with Sunita Rani.
Vide Ex. PL, Sunita Rani informed the police (in the form of a dying
declaration) that Rajinder Kumar poured kerosene oil upon her while
appellant Dimple set her afire by lighting a match stick. Though Ex.
PL attributes role to acquitted as well, we do not feel called upon to
indicate that part of the statement in view of the fact that the acquittal
of Ashwani Kumar, Shamma and Madhu Bala has attained finality
inasmuch as the State did not challenge it.
Learned Trial Judge placed reliance upon Ex. PL and
recorded the impugned finding of conviction.
As would be apparent from the testimony on oath of PW-
2 Dr. Deepak Bhatti, Senior Resident Plastic Surgery, C.M.C. &
Hospital, Ludhiana who treated Sunita Rani on her admission in
hospital on 31.3.1998, Sunita Rani came to the hospital with 100%
Criminal Appeal No. 569-DB of 1999 -3-
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burns. He certified (vide opinion Ex. PD/1 on police plea Ex. PD)
that Sunita Rani was fit to make a statement. That certification was
issued by him at 11.20 P.M. on 31.3.1998. It is in his testimony that
“both the hands of Sunita were burnt including finger tips and thumb.
…….On the basis of verbal response we opined that the patient was
fit to make the statement”.
Thus, about little less than one hour intervened her
hospitalisation and issuance of certification about her fitness to make
a statement. At this stage, it would be appropriate to notice that PW-
3 Dr. Sudhir Sidhu, Resident, Department of Surgery, C.M.C.
Hospital, Ludhiana also testified, on the basis of the patient record
Ex. PE, that Sunita Rani had 100% burns at the time of admission
and that “the entire body of Sunita Rani including her hands, finger
tips and thumbs have burn injuries and it was a case of 100% burns.”
It is in the testimony of Investigating Officer that “there
are about 8-10 Executive Magistrate at Ludhiana. There are also
about 10-15 JMICs at Ludhiana.” The Investigating Officer did not
take any steps to get the dying declaration recorded by a Magistrate.
He conceded that he did not try to contact any Executive Magistrate
or Judicial Magistrate on the night of the occurrence. At the trial, he
did not offer any explanation why did he not take steps to get the
dying declaration recorded by a Magistrate. His statement to the
effect that “the Doctor remained present throughout recording the
statement of the patient by me” is contradictory to that of PW-2 Dr.
Deepak Bhatti who testified that “I was not present when the
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statement of Sunita was recorded”. Apart therefrom, it is in the
statement of none else or other than the Investigating Officer himself
that Ex. PL is in hand of ASI Surat Singh. He also conceded that
endorsement Ex. PL/1 appearing thereon is also in the hand of ASI
Surat Singh. However, ASI Surat Singh gave a lie to that statement
by categorically averring that “the writing work was done by Inspector
Naveen Kumar”.
Furthermore, we find that dying declaration Ex. PL
purports to bear the thumb impression of maker thereof i.e. Sunita
Rani. In view of the categorical testimony of PW-2 Dr. Deepak Bhatti
and PW-3 Dr.Sudhir Sidhu to the effect that her entire body including
both her hands including finger tips and thumbs have burns injuries,
it is not understandable how could a thumb impression of Sunita
Rani be obtained on it.
We find, on a perusal of the above facts and
circumstances of the case, that the recording of dying declaration Ex.
PK is not free from doubt.
The parents of the deceased lady, who would have been
best circumstanced to depose about the circumstances in the
context of the dowry-related torture (if any), were examined at the
trial as PW-6 Pushpa Devi and PW-7 Budh Raj. Both of them did not
support the prosecution plea. PW-6 Pushpa Rani categorically
stated that appellants never maltreated Sunita Rani prior to her
death nor did Sunita Rani ever complain of any maltreatment at their
hands during her life time. In the course of cross-examination as
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well, she claimed having been told that Sunita Rani sustained
injuries while preparing meals. Likewise, PW-7 Budh Raj (father of
deceased lady), who purported to be a signatory to Ex. PL, denied
that any such statement had been recorded in his presence. In the
context, he averred that his signatures were obtained by the police
on some papers. The other purported signatory i.e. Harbans Lal was
given up by the prosecution as unnecessary.
The present, thus, is a case in which it is proved that the
Investigating Officer did not take any steps to procure the presence
of a Magistrate to get the dying declaration of deceased Sunita Rani
recorded inspite of the fact that there were a number of Magistrates
posted at Ludhiana itself where the deceased was hospitalised. The
testimony of Investigating Officer that the Medical Officer (who
certified the fitness of deceased to make a statement) remained
present throughout the recording of the statement is contradicted by
that Medical Officer who denied having remained present during the
period the dying declaration was being recorded. Out of two
purported (attesting) signatories of the dying declaration, one was
given up as unnecessary; while the other who is none else or other
than father of the deceased lady denied that any declaration of
Sunita Rani had been recorded in his presence. The obtaining of
thumb impression of the maker of Ex. PL on it is also shrouded in
mystery inasmuch as two Medical Officers (PW-2 Dr. Deepak Bhatti
and PW-3 Dr. Sudhir Sidhu), who treated the deceased lady, were
categorical that her entire body including her hands, finger tips and
Criminal Appeal No. 569-DB of 1999 -6-
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thumbs were completely burnt.
In the light of afore-mentioned discussion, we find that
prosecution had not been able to prove the charge against the
appellants beyond reasonable doubt. The appeal shall stand
allowed. The impugned finding of conviction against the appellants
shall stand set aside. The appellants shall stand acquitted of the
charges.
( S. D. ANAND )
JUDGE
July 11, 2008 (ADARSH KUMAR GOEL)
Pka JUDGE