Crl.A. No.252-DB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.A. No.252-DB of 2000
DATE OF DECISION: December 11, 2009
DHARMO ...APPELLANT
VERSUS
STATE OF PUNJAB ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MR. JUSTICE JITENDRA CHAUHAN.
PRESENT: MR. RAJIV VIJ, ADVOCATE FOR THE APPELLANT.
MS. MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB.
ASHUTOSH MOHUNTA, J.
Appellant Dharmo Devi is aggrieved by the judgement and
order of sentence dated 6.3.2000, vide which she has been convicted under
Section 302 IPC and has been sentenced to undergo imprisonment for life
and to pay a fine of Rs.1000/-. In default of payment of fine the accused has
further been ordered to undergo R.I. for 6 months.
The facts of the prosecution case are that on 20.7.1992, ASI
Harbhajan Singh (PW3) was present in Police Station Division No.7,
Jalandhar and received a wireless message from Police Station Division
No.4, Jalandhar to the effect that Kamlesh Rani W/o Labha R/o village
Garha was lying admitted in Civil Hospital, Jalandhar. On receipt of the
said wireless message ASI Harbhajan Singh deputed Head Constable
Lakhbir Singh, who was accompanying him, for getting some Magistrate
deputed for recording the dying declaration of Kamlesh Rani. Lakhbir
Singh, HC gave application (Ex.PE) to the Addl.Deputy Commissioner,
Jalandhar who further marked the application to Sh. Chander Gains,
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Executive Magistrate to do the needful. Thereafter, Chander Gains deputed
Jaskaran Kaur, Executive Magistrate to record the statement of Kamlesh
Rani. Jaskaran Kaur, Executive Magistrate came to the Civil Hospital,
Jalandhar and before recording the statement of Kamlesh Rani, the
Executive Magistrate sought the opinion of Dr.Santokh Singh Thind
regarding the fitness of Kamlesh Rani to make the statement. Thereafter,
the Executive Magistrate recorded statement (Ex.PA) of Kamlesh Rani
which is as under.
“Statement of Smt. Kamlesh Rani wife of Sh. Lekh Chand r/o
Garha Distt. Jalandhar H.No.423.
Fit to make statement.
Sd/- S.S.Thind Sd/- Jaskaran 8.55
20.7.92 E.M. Duty 20.7.92
8.55 P.M.
It is stated that I have four children. Three daughter and one
son. Even now I am going to give birth to a child. My mother-
law (Smt. Dharmo Devi) and my sister-in-law (Smt. Ratna wife
of Chaman used to quarrel with me daily. They are picking up
quarrels with me for the last 8 years. I was married 9 years
ago. Today on 20.7.92 at about 4.30 p.m. My mother-in-law
sprinkled kerosene oil and put me on fire. My mother-in-law
lives in our house and my sister-in-law uses to come here.
When the occurrence took place my sister-in-law was present.
My husband took me to the hospital. My husband is innocent.
Sd/- Jaskaran EM
20.7.92
Pt. Remained fit during statement.
Sd/- S.S.Thind
20.7.92 at 9.05 PM”
Crl.A. No.252-DB of 2000 -3-
On the aforesaid statement of Kamlesh Rani (Ex.PA) ASI
Harbhajan Singh made his endorsement (Ex.PA/1) and sent the same to the
Police Station for registration of case, on the basis of which formal FIR
(Ex.PA/2) was recorded against the accused under Section 307/34 IPC.
Thereafter, ASI Harbhajan Singh proceeded to the place of occurrence and
after inspecting the same prepared rough site plan (Ex.PF) with correct
marginal notes. One empty bottle of kerosene oil (Ex.P1) and one half burnt
match-box (Ex.P2) were recovered from the place of occurrence and the
same were taken into possession vide recovery memo (Ex.PG). Ruqqa
(Ex.PH) was received by ASI Harbhajan Singh regarding the death of
Kamlesh Rani at about 11.15 p.m. On receipt of the ruqqa, ASI Harbhajan
Singh came to the hospital on 21.7.1992 and prepared inquest report
(Ex.PC) in respect of the dead body of the deceased and dead body was sent
for post mortem examination. The autopsy on the dead body of Kamlesh
Rani was conducted by Dr.Gurmit Singh, who found ante mortem injuries
on the dead body and gave his opinion that death of Kamlesh Rani was due
to hypovolenic shock which was sufficient to cause the death in the ordinary
course of nature. The offence was converted into one under Section 302
IPC. During the investigation, accused was arrested on on 18.1.1993.
Statement of Darshan Singh PW was recorded. After completion of
necessary formalities of the case, challan against the accused was presented.
Finding a prima facie against the accused under Section 302
IPC, she was charged to which she pleaded not guilty and claimed trial.
To prove its case the prosecution examined as many as 9
witnesses. PW1 is Jaskaran Kaur, Executive Magistrate who recorded the
dying declaration of Kamlesh Rani, deceased (Ex.PA). She stated hat she
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had gone to emergency ward of Civil Hospital, Jalandhar to record the
statement of deceased and there was no other person present near Kamlesh
Rani except the Doctor. She further stated that Dr.Thind was treating
Kamlesh Rani and there was no policial office inside the ward. She further
stated that she did not get thumb impression of Kamlesh Rani nor get signed
from her after concluding the statement.
PW2 Dr. Gurmit Singh conducted post mortem on the dead
body of Kamlesh Ram wife of Labha Ram on 21.7.1992 and opined the
following injuries:
“1. Superficial to deep burns present all over the body
except pubic area, soles and forehead. Skin peeled off
at forearms, thighs, chest and abdomen.
2. Wound of cut Section for intravenous drip present about
1 cm above the right medical meliolous. On exploration
of the uterus, shows early products of conception. No
part formation was there.”
During his cross-examination, Dr. Gurmit Singh clearly stated
that due to burn injuries on the person of Kamlesh Rani, hypovolenic shock
was there.
PW3 ASI Harbhajan Singh has given the detailed account of
investigation conducted by him in this case.
PW4 Darshan Singh, stated that on 20.7.1992, he was present
at his Dairy Farm at about 3.45 p.m. and at that time he noticed that
daughter-in-law of Dharmo, accused, who had been set on fire, came out of
her house. He further stated that due to catching of fire on her body,
Kamlesh Rani fell down on the road intervening his dairy farm and house of
Crl.A. No.252-DB of 2000 -5-
Dharmo accused. He stated that he threw a wet gunny sheet on her and
extinguished the fire. After about 15 minutes, Labha S/o Dharmo came
there and he lifted the daughter-in-law of Dharmo and took away with him.
PW7 Dalip Singh, Draftsman proved the scale site plan
(Ex.PW7/A).
Apart from the aforesaid witnesses, other formal witnesses
were also examined by the prosecution and closed the evidence.
After closure of the prosecution evidence, statement of the
accused were recorded under Section 313 Cr.P.C. All the allegations
appearing in evidence were put to them. They denied the same and pleaded
innocence. In defence, the accused examined DW1 Chaman Lal and DW2
Labh Chand.
The trial Court after considering the dying declaration and
relying upon the statement of the prosecution witnesses convicted and
sentenced Dharmo Devi, accused-appellant, whereas, the other accused
Ratna Devi was acquitted of the charge.
Counsel for the appellant has argued that the dying declaration
allegedly made by the deceased before the Executive Magistrate, Jaskaran
Kaur was neither signed nor thumb marked by the deceased and further that
there is nothing on record to show that the deceased was not in a position to
append her signatures or thumb mark on the dying declaration. It has also
been argued that the dying declaration has not been recorded in questions
and answers form and hence the same cannot be taken into consideration for
convicting the accused. Learned counsel has also argued that there is no
other evidence which corroborates the dying declaration made by the
deceased. He has submitted that it was the deceased herself who had set
Crl.A. No.252-DB of 2000 -6-
herself on fire. He has further argued that PW3 ASI Harbhajan Singh,
Special Branch, Nakodar stated that on receiving the information about the
admission of Kamlesh Rani in the Civil Hospital, Jalandhar he went there,
but could not talk to her as she had become unconscious. Learned counsel
has submitted that if the deceased was unconscious at the time when she
was brought to the hospital, then her dying declaration obviously could not
have been recorded by the Executive Magistrate and hence the accused
deserves to be acquitted.
The arguments raised by the counsel for the appellant have
been controverted by the counsel appearing for the State, who has submitted
that the dying declaration (Ex.PA) which was made by deceased Kamlesh
Rani was recorded by the Executive Magistrate Jaskaran Kaur PW9. He has
submitted that the dying declaration was recorded by the Executive
Magistrate after obtaining opinion of the Doctor that the deceased was in a
fit state of mind to give a statement and this has further been corroborated
by the medical evidence furnished by the Dr. Gurmit Singh, PW1, who
conducted the post mortem examination on the dead body of the deceased.
The evidence of Executive Magistrate itself is sufficient to prove that it was
the accused Dharmo Devi who had sprinkled kerosene oil on the deceased
and thereafter set her on fire.
Counsel for the State has also argued that the signatures or the
thumb impression of the deceased could not be obtained in dying
declaration as she had sufficient superficial and deep burns all over her
body and hence the possibility of obtaining her thumb impression of
Kamlesh Rani was remote. He has submitted that non-obtaining of
signature/thumb impression on the dying declaration recorded by the
Crl.A. No.252-DB of 2000 -7-
Executive Magistrate cannot detract the genuineness of the dying
declaration.
Learned State counsel has further submitted that deceased
Kamlesh Rani had become unconscious initially, but when her dying
declaration was recorded by the Executive Magistrate, she was fully
conscious. This fact has duly been certified by the Doctor who had opinied
that Kamlesh Rani was fit to make a statement. It is thus, submitted by the
counsel for the State that prosecution has been able to prove its case to the
guilt against the accused and the appeal deserves to be dismissed.
We have heard the counsel for the parties at length and have
examined the entire record.
A perusal of the statement of PW1 Mrs. Jaskaran Kaur,
Executive Magistrate shows that before recording the statement of Kamlesh
Rani, she had obtained opinion from the Doctor whether Kamlesh Rani was
fit to make a statement or not. On getting the opinion that Kamlesh Rani
was fit to make a statement, she recorded the dying declaration (Ex.PA) of
Kamlesh Rani. Mrs. Jaskaran Kaur, Executive Magistrate has further stated
that Kamlesh Rani remained fit during her deposition and that while her
statement was being recorded, there was no one in the ward except Dr.S.S.
Thind. All the other persons including the police officials were outside the
ward. PW1 has denied the suggestion that Kamlesh Rani was not in a fit
condition to make statement or that she never made any statement before
her. PW9 Jaskaran Kaur was holding the post of Executive Magistrate and
nothing has been brought on record to suggest that she was in any manner
inimical toward the accused. It has been categorically stated by her that she
had recorded the dying declaration of Kamlesh Rani and therefore, her
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testimony is trust-worthy and reliable.
The argument of the counsel for the appellant that signature or
thumb impression of the deceased were not obtained on the dying
declaration is without merit, as according to Dr. Gurmit Singh PW2, who
conducted the post mortem on the dead body of the deceased had deposed
that the deceased had been suffering from superficial deep burns all over her
body, except pubic hairs, soles and forehead. Dr. Gurmit Singh has further
deposed that the skin had peeled off at forearms, thighs, chest and abdomen.
A perusal of the aforementioned injuries makes it clear that the deceased
had been suffering from superficial deep burns all over her body, except
pubic hairs, soles and forehead which means that there were burn injuries on
the hands also and hence it was not possible for Jaskaran Kaur, Executive
Magistrate, PW9 to obtain her signature or thumb impression on the dying
declaration.
In view of the statement made by PW9 Mrs.Jaskaran Kaur,
Executive Magistrate, the non-obtaining of signature or thumb impression
on the dying declaration will not detract from the genuineness of the
statement of the deceased.
Apart from the above, a perusal of the dying declaration shows
that the accused Dharmo Devi used to quarrel with the deceased on a
regular basis. As per the dying declaration, the accused had been quarreling
with the deceased for the last more than 8 years. The deceased had
categorically stated that it was accused Dharmo Devi who had sprinkled
kerosene oil on her and set her on fire. She had not implicated her husband
in any manner. The dying declaration is truthful and was made voluntarily
before the Executive Magistrate, PW9 and the conviction can be based on
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the same, specially, when it has been recorded by the Executive Magistrate.
The dying declaration was not tutored or prompted by anyone, as no one,
except the doctor was present at the time when the same was recorded.
In the dying declaration, the deceased had not tried to implicate
any person falsely. She had attributed the act of setting her on fire only to
Dharmo Devi, accused-appellant. She stated that at the time of setting her
on fire, Ratna, accused was also present, however, she had not attributed
any role to Ratna as far as sprinkling of kerosene oil on her and setting her
on fire is concerned. Thus, we are of the considered opinion that the dying
declaration was made by Kamlesh Rani voluntarily. As per Mrs. Jaskaran
Kaur, Executive Magistrate, the deceased was in a fit condition to make a
statement and that Dr. Thind had duly certified about the fitness of the
deceased to make a dying declaration.
In view of the above, we hold that the prosecution has been
able to prove beyond any reasonable doubt that it was accused Dharmo Devi
who had committed the murder of Kamlesh Rani by sprinkling kerosene oil
on her and by setting her on fire. We, therefore, upheld the conviction and
sentence of Dharmo Devi, appellant and dismiss the appeal.
If the accused is on bail, her bail bonds are cancelled and she be
taken into custody forthwith to serve out the remaining portion of her
sentence.
(ASHUTOSH MOHUNTA)
JUDGE
December 11, 2009 (JITENDRA CHAUHAN)
Gulati JUDGE