JUDGMENT
Sat Pal, J.
1. This appeal is directed against the judgment dated 1-4-1995, passed by the Sessions Judge, Hoshiarpur, in Sessions case No. 20 of 14-6-1994. By this judgment, learned Sessions Judge has convicted appellant Ajit Singh under S. 302, IPC for having committed the murder of his wife Satwinder Kaur and has sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000/-; in the default of payment of amount of fine, the appellant shall undergo rigorous imprisonment for two months.
2. Facts of the case as unfolded in the prosecution story, are that deceased Satwinder Kaur was married to appellant Ajit Singh somewhere in March, 1993. After the marriage, the deceased and the appellant started living at the house of the appellant at village Attowal. No child was born out of this marriage. The appellant and his mother used to tell the deceased that they could not keep her in their house. About 5/6 dark prior to the date of the occurrence (22-1-1994) the maternal uncle of the deceased named Nirmal Singh took her to her village and again brought her back to village Attowal on 22-1-1994.
3. Further case of the prosecution is that on that day at about 6 p.m. appellant Ajit Singh poured diesel upon her from the Pipi (tin) and set her on fire. Satwinder Kaur was admitted in the civil Hospital, Hoshiarpur at 7-45 p.m. on 22-1-1994.
4. P.W. 10 ASI Bhajan Singh, who was posted in Police Station Mehtiana, received wireless message about the burning of the deceased and he went to the Civil Hospital, Hoshiarpur. He had also taken P.W. 9 Bhupinder Singh, Executive Magistrate along with him while going to the hospital. In the hospital, P.W. 10 ASI Bhajan Singh submitted an application Exhibit PF/1 to the Duty Doctor requesting him to intimate if Satwinder Kaur was fit to make a statement. At 11-00 p.m. on 22-1-1994, Dr. Ram Lal (PW 3) declared Satwinder Kaur fit to make a statement. Thereafter. P.W. 9 Bhupinder Singh, Executive Magistrate recorded the statement of Satwinder Kaur (deceased). The recording of the statement commenced at 11 p.m. and was completed at 11.15 p.m. on 22-1-1994 itself. The said statement reads :
“At about 6-00 p.m. after I had cooked the meals, my husband Ajit Singh called me inside the room and quarrelled and said who had gone to bring you from your parents. Her maternal uncle had left her there today we had quarrelled about a month earlier. My marriage was solemnized ten months back. I have no child. My husband does not want to keep me and called me inside, put oil on me and set me ablaze. My mother-in-law Mohinder Kaur was standing near and she too did not try to save. My mother-in-law also used to quarrel with me very much. My mother-in-law had been saying, that I remain sick. My parents are in village Mauli, tehsil Phagwara. My father Gurnam Singh is since dead.
RTI Satwinder Kaur aforesaid 11.15 p.m. 22-1-1994 Sd/- Executive Magistrate, Hoshiarpur. P.W. 3 Dr. Ram Lal certified that the patient was fit till the completion of her statement recorded by P.W. 9 Bhupinder Singh, Executive Magistrate. 5. Thereafter P.W. 10 ASI Bhajan Singh also recorded the statement of deceased Satwinder Kaur at 11-55 p.m. on 22-1-94, which reads as under :
“My parental village is Mauli, P. S. Sadar Phagwara, Distt. Kapurthala. My father Gurnam Singh son of Ujagar Singh, resident of village Mauli, died about 2 1/2 yrs. back. I have two younger brothers. My marriage was performed with Ajit Singh son of Kashmir Singh, Jat of village Attowal about ten months back. No child was born from my womb. Previously, I was suffering from small pox and had fallen ill. My mother-in-law Mohinder Kaur and my husband Ajit Singh used to say that they could not keep me in their house. Then my maternal Uncle Nirmal Singh son of Sardara Singh, Jat r/o vill. Chak-dhade took me along him 5/6 days back and I lived at my parental village Mauli for five days. Thereafter my maternal uncle Nirmal Singh brought me today the 22nd January, 1994 at my in-laws house at Attowal and he himself went back. At about 6 p.m., when I became free after cooking meals, my husband called me in the room at back side and said that why I had come back that day whereas he had not gone to bring me. Then I said “I have come to my in-laws’ house and I do not want to live at my parents ‘House’. Thereupon my husband Ajit Singh poured diesel upon me from the pipi (Tinbox) and set me on fire. My mother-in-law Mohinder Kaur also said to me that they would not keep me in their house and I should go to my parents ‘house’. When my husband sprinkled oil upon me, my mother-in-law Mohinder Kaur also was standing nearby. My mother-in-law and my husband having connived with each other, have set me on fire. Both my mother-in-law and husband have tried to kill me by setting me on fire.”
On the basis of the above mentioned statement. FIR Exhibit PQ/2 was recorded at P. S. Sadar Hoshiarpur. The recording of the FIR commenced at 12-15 p.m. and was completed at 12.55 a.m. (night) on 23-1-1994. The special report was delivered at the place of the Ilaqa Magistrate on 23-1-94 at 5 a.m. Satwinder Kaur died at 2-35 a.m. on 24-1-1994 in the Civil Hospital Hoshiarpur.
6. On 23-1-1994 P.W. 10 ASI Bhajan Singh recorded the statements of Surjit Kaur and P.W. 8 Nirmal Singh. He also took into possession partly burnt clothes of Satwinder Kaur which were made into a scaled parcel, Exhibit P. 1 and the same was deposited with the Moharrir at Police Station Sadar. After the death of Satwinder Kaur on 24-1-1994, the offence was changed from S. 307/34. IPC to S. 302/34, IPC after making the report in the daily diary P.W. 10 prepared the inquest, report Exhibit PC in the Civil Hospital. The dead body was entrusted to P.W. 7 H. C. Sham Lal and constable Ajay Kumar for post mortem examination.
7. Board of doctors consisting of Dr. Anil Pathak, Dr. Krishan Kumar and Dr. D. B. Salwan conducted the post mortem examination on the dead body of Satwinder Kaur. The post mortem report is Exhibit PA and as per this report, the cause of death was due to shock and burns which were sufficient to cause death in the ordinary course of nature and the burns were ante mortem in nature.
8. On 28-1-1994 P.W. 10 ASI Bhajan Singh inspected the spot of occurrence and from there collected one can Exhibit P. 2 and the pieces of burnt clothes and match box along with half burnt match stick. He prepared the site plan Exhibit PR. On that day, he arrested the accused. Thereafter the accused was challaned. As per report Exhibit P.S. of the Analyst, Forensic Sciences, Laboratory, Chandigarh, the liquid contained in the Pipi (Tin) was examined by Shri Des Raj Sharma, Vighyanik Officer and its contents were found akin to diesel.
9. In support of its case the prosecution examined 10 witnesses. PW 1 Dr. Anil Pathak who along with two other doctors had conducted the post mortem on the dead body of the deceased, proved the post mortem report Exhibit P.A. PW 2 Dr. J. S. Purewal proved that deceased Satwinder Kaur was admitted in the Civil Hospital, Hoshiarpur at 7.45 p.m. on 22-1-1994 and she was brought to the hospital by her husband Ajit Singh and mother-in-law Mohinder Kaur. PW 3 Dr. Ram Lal proved that he had examined the deceased at 11 p.m. on 22-1-1994 and declared her fit to make a statement and that she remained fit throughout when her statement was recorded. PW 4 Paramjit Singh draftsman proved the site plan. PW 5 MHC Naresh Kumar proved his affidavit Exhibit P. 5 and through his affidavit he proved that on 9-2-1994, he had handed over Pipi (Tin) stained with diesel duly sealed to Constable Jaswinder Singh for delivering the same in the office of the Director, F.S.L. Chandigarh. PW 6 Constable Jaswinder Singh proved his affidavit Exhibit PK and through his affidavit he proved that on 23-1-1994 he had delivered special report to the Ilaqua Magistrate at 5 p.m. on 23-1-1994. PW 7 HC Sham Lal proved his affidavit Exhibit PL. Through this affidavit, he proved that on 24-1-1994 ASI Bhajan Singh had entrusted to him and Constable Ajay Kumar dead body of Satwinder Kaur for getting the post mortem conducted. PW 8 Nirmal Singh is the maternal uncle of the deceased. PW 9 Bhupinder Singh Executive Magistrate had recorded the dying declaration of the deceased on 22-1-1994 from 11 p.m. to 11.15 p.m. PW 10 ASI Bhajan Singh is the Investigating Officer.
10. In his statement recorded under Section 313, Cr.P.C. the appellant stated in reply to question 18, as follows :
“I am innocent. I and my mother had gone to our farm house which is situated in our fields to milch the cattle. There we received the information that my wife had caught fire and then my mother and myself, rushed to our residential house in the village abadi. At that time, my wife was lying with burns in a vacant site, situated opposite to our house and some people were already standing there, who had extinguished the fire. We took her to the civil hospital, Hoshiarpur and got her admitted there. When I enquired from my wife as to how she suffered the burns, she told me that she be saved as she had committed a mistake by setting herself on fire. Before starting for the hospital from the village, we had sent the information to the mother and brothers of the deceased about the incident. After our arrival in the hospital, Nirmal Singh PW along with the police came there. I and my mother were taken away to police station, Mehtiana, where we were kept in illegal detention. My wife had committed suicide as she was under depression after the attacks of small pox.
In his defence, the appellant examined two witnesses, namely DW 1 Makhan Singh and DW 2 Devinder Singh. DW 1 Makhan Singh is neighbour of the appellant accused and he supported the version of the accused that at the time of occurrence, the accused and his mother had gone to their cattle house and further the deceased Satwinder Kaur had told that he had committed the mistake by setting herself on fire and she should be saved. DW 2 Devinder Singh is the brother of the accused and has supported the version of the appellant-accused.
11. On the basis of the evidence on the record, the learned Sessions Judge, Hoshiarpur has convicted and sentenced the appellant as stated earlier.
12. Mr. Cheema learned senior counsel appearing on behalf of the appellant, submitted that in the present case, there are three dying declarations given by the deceased Satwinder Kaur. He submitted that as per the case of the prosecution, the deceased gave the first statement Exhibit PG/2 to PW 9 Bhupinder Singh, Executive Magistrate on 22-1-1994 from 11 p.m. to 11.15 p.m. On the same day, PW 10 ASI Bhajan Singh is alleged to have recorded her statement Exhibit PQ/1 which was completed at 11.55 p.m. and this statement formed the basis of the FIR. He admitted that the third statement is alleged to have been given by the deceased to her maternal uncle, PW 8 Nirmal Singh, when after hearing the news about her burning, he came to the Civil Hospital, Hoshiarpur. He submitted that in the first statement recorded by PW 9 Bhupinder Singh, Executive Magistrate Satwinder Kaur stated that her husband put oil on her and set her ablaze and her mother-in-law Mohinder Kaur was standing near and she too did not try to save her. He submitted that in the second statement recorded by PW 10 ASI Bhajan Singh, she stated that her husband Ajit Singh poured diesel upon her from the Pipi (Tin box) and set her on fire, her mother-in-law Mohinder Kaur was standing nearby and both her mother-in-law and her husband connived with each other and set her on fire. Both her mother-in-law and her husband had tried to kill her by setting her on fire. He submitted that in the third statement given by her to her maternal uncle PW 8 Nirmal Singh, she is alleged to have stated that Ajit Singh called her into the inner room and poured the diesel on her and then set her on fire; Mohinder Kaur was also present in the house when she was set on fire by Ajit Singh. The learned counsel submitted that when there were more than one dying declarations, it was unsafe to convict solely on one of the dying declarations. He contended that in the statement recorded by PW 10 ASI Bhajan Singh, the deceased had also attributed the role to her mother-in-law Mohinder Kaur in setting her on fire where as in the other two statements, she had not assigned any role to her mother-in-law in setting her on fire. He, therefore submitted that the conviction of the appellant could not be sustained in view of the contradictory dying declarations. In support of this submission, he placed reliance on a judgment of the Supreme Court in Kamla v. State of Punjab, 1993 SCC (Cri) 1 : (1993 Cri LJ 68).
13. The learned counsel further submitted that if there were more than one dying declarations, then the Court had also to scrutinise all the dying declarations to find out if each one of these passes the test of trustworthiness. In support of this submission, he placed reliance on a judgment of the Supreme Court in Kundula Bala Subrahmanyam v. State of Andhra Pradesh, 1993 SCC (Cri) 655 : (1993 Cri LJ 1635).
14. The learned counsel further submitted that merely because the dying declaration had been recorded by a Magistrate was not by itself a proof of its truthfulness and in order to earn acceptability, such a declaration has still to pass the test of scrutiny of the Court. He submitted that in the present case, the learned trial Court had failed to appreciate the contradiction in three dying declarations. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in Kanchy Komuramma v. State of A.P., 1996 SCC (Cri) 31.
15. The learned counsel submitted that admittedly the deceased was taken by the accused immediately to the hospital and in case the appellant had set the deceased on fire, she would have disclosed the name of the appellant to the doctor, who attended on her at the time of her admission in the hospital. In support of this submission, he placed reliance on a judgment of Supreme Court in Devinder v. State of Haryana, 1997 SCC (Cri) 570 : (1996 Cri LJ 4461).
16. Lastly the learned counsel submitted that the learned trial Court had failed to appreciate the evidence of DW 1 Makhan Singh who was living in the neighbourhood and DW 2 Devinder Singh, brother of the accused. He submitted that both these witnesses have proved that the appellant and his mother had gone outside the house to milch the cattle when the deceased tried to commit suicide by setting herself on fire.
17. Mr. Dhaliwal, learned counsel appearing on behalf of the State, submitted that in fact there was no contradiction in the three dying declarations. He submitted that in all the three dying declarations, the deceased clearly stated that the appellant had poured diesel on her and thereafter set her on fire. He further submitted that P.W. 9 Bhupinder Singh, Executive Magistrate had accompanied the Investigating Officer while he was going to the hospital and as such there was no time fox anyone to influence the Executive Magistrate. He submitted that P.W. 9 Bhupinder Singh, Executive Magistrate had completed the statement of the deceased at 11.15 p.m. on 22-1-1994 whereas P.W. 8 Nirmal Singh, who is the maternal uncle of the deceased, reached the hospital at 12.30 a.m. on 23-1-1994. The contention of the learned counsel for the appellant that the word “RTI Satwinder Kaur aforesaid” on Exhibit PG could be in the hand of the Investigating Officer, the learned D.A.G. submitted that no question was put to the Investigating officer who appeared as P.W. 10 nor to P.W. 9 Bhupinder Singh, Executive Magistrate, on this aspect of the matter. Dealing with the contention of the learned counsel for the appellant that the deceased was taken by the appellant himself to the Civil Hospital, Hoshiarpur, the learned counsel submitted, that it has been established by the prosecution evidence that the deceased Satwinder Kaur after she was set on fire, came outside the house and once she was seen burning outside the house by the neighbours, the appellant chose to take her to the hospital.
18. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. In the case of Kundula Bala Subrahmanya, (1993 Cri LJ 1635) (supra) it was observed by the Supreme Court as under (at p. 1642) :-
“A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Court, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.”
In the present case, the deceased was declared fit to make a statement at 11 p.m. on 22-1-1994 by Dr. Ram Lal. This witness had appeared as prosecution witness as PW 3 and had clearly proved the fact that deceased Satwinder Kaur had remained fit throughout when her statement Exhibit PG/2 was recorded by Bhupinder Singh, Executive Magistrate (PW 9). He had also stated that the statement was recorded by the said Executive Magistrate in his presence from 11 p.m. to 11.15 p.m. In his cross-examination, he stated that the patient was conscious when her statement was recorded. Similarly Bhupinder Singh, Executive Magistrate, appeared as Prosecution witness and proved the statement Exhibit PG/2 which was recorded by him. He further stated that the statement Exhibit PG/2 was read over to Satwinder Kaur and was thumb marked by her in token of its correctness. He also stated that Dr. Ram Lal (PW 3) had declared the patient fit to make the statement and thereafter he started recording her statement at 11 p.m. which was completed at 11.15 p.m. In this manner, the evidence of the witnesses testifying to the dying declaration Exhibit PG/2, passes the test of scrutiny of the Court. In the statement Exhibit PG/2, the deceased Satwinder Kaur had clearly stated that her husband (appellant) put oil on her and set her ablaze and her mother-in-law was standing nearby but she did not try to save her. We are, therefore, fully satisfied that the said dying declaration by itself is sufficient for recording conviction of the appellant under Section 302, IPC.
19. In the statement Exhibit PQ/1 which was recorded by PW 10, ASI Bhajan Singh after earlier statement Exhibit PQ/2 had already been recorded by Bhupinder Singh, Executive Magistrate, the deceased again stated that “Thereupon my husband Ajit Singh poured diesel upon me from the Pipi (Tin box) and set me on fire ………… When my husband sprinkled oil upon me, my mother-in-law Mohinder Kaur also was standing nearby. My mother-in-law and my husband having connived with each other, have set me on fire.” Even in this statement, the deceased clearly stated that her husband Ajit Singh poured diesel upon her and set her on fire. It is only in a vague manner that she in the last sentence stated that her husband and mother-in-law had connived with each other and set her on fire. In fact no specific role was assigned to the mother-in-law by the deceased in setting her on fire. Both the roles of pouring diesel as well as setting her on file were assigned to the appellant. In the third statement which was given by her to her maternal uncle PW 8 Nirmal Singh, she again stated that Ajit Singh called her into the inner room and poured can of diesel upon her and then set her on fire. She further told PW 8 Nirmal Singh that Mohinder Kaur was also present in the house when she was set on fire by Ajit Singh. The aforesaid facts about the third dying declaration have been fully established by the evidence of PW 8 Nirmal Singh.
20. In view of the facts stated hereinabove, we do not find any material discrepancy in the three dying declarations. It is clear from all the three statements of the deceased that it was the appellant who had poured diesel over her and set her on fire. The view we have taken finds support from a recent judgment of the Supreme Court in Rajindra Kumar v. State of Punjab, (1997) 9 JT (SC) 221.
21. Since we have come to the conclusion that there is not any material discrepancy in the three statements given by the deceased and we are satisfied about their trustworthiness and consistency with each other, the decision of the Supreme Court in the case of Kamla (1993 Cri LJ 68) (supra) and Kundula Bala Subrahmanyam (1993 Cri LJ 1635) (supra) are of no assistance to the appellant. Similarly, the decision of the Supreme Court in Kanchy Komuramma (1996 SCC (Cri) 31) (supra) on the same ground is also of no assistance to the appellant. It may also be relevant to point out here that in the case of Kanchy Komuramma (supra) Dr. Kuti, casualty officer had not stated that the deceased was in a fit condition to speak and on this ground also the decision in the case of Kanchy Komuramma (supra) is not applicable to the facts of the present case.
22. As regards the contention of the learned counsel for the appellant that if the appellant had set the deceased on fire, he would not have taken her to the hospital immediately, we do not find any merit in this contention also. It has clearly established by the prosecution that deceased Satwinder Kaur after she was set on fire, came out of the house and since she was seen burning by neighbours and outsiders, the appellant must have decided to take her to the hospital to make out his defence. In view of the dying declaration Exhibit PG/2 having been proved by PW 9 Bhupinder Singh Executive Magistrate and PW 3 Dr. Ram Lal beyond any manner of doubt, we are of the opinion that no reliance can be placed on the evidence of DW 1 Makhan Singh who is the neighbour of the appellant and DW 2 Devinder Singh who is the brother of the appellant.
23. For the reasons recorded herein above, we do not find any merit in this appeal and accordingly we dismiss the same.
24. Appeal dismissed.