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G URMAIL KAUR & ANR versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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G urmail Kaur & Anr v. State of Punjab - CRA-D-333-DB-2005 [2006] RD-P&H 6236 (31 August 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : August 31, 2006

Gurmail Kaur and another ....Appellant

versus

State of Punjab

....Respondent

Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal

Present : Mr. N.S.Kandhola, Advocate for the appellants Mr. MS Sidhu, Senior Deputy Advocate General, Punjab Virender Singh, J.

Gurmail Kaur (aged 55 years) wife of Major Singh and her daughter Sarabjit Kaur (aged 22 years) stand convicted under sections 302 IPC vide impugned judgment of learned Additional Sessions Judge, Ludhiana dated 5.3.2005 and are sentenced to undergo imprisonment for life and to pay a fine of Rs 10,000/- each, in default thereof to undergo RI for a period of two years.

It needs to be mentioned here that the present appellants were charged for section 302 IPC substantively and were also charged along with their co-accused under sections 304-B and 498-A IPC. They, however, stand acquitted for sections 304-B and 498-A IPC. Major Singh and Joga Singh, the co-accused were charged for section 302/34, 304-B and 498-A IPC and have since been acquitted of all the charges. Learned State counsel submits that the State of Punjab has not preferred any appeal against their acquittal.

The deceased in this case is Karamjit Kaur who was married to Malkiat Singh son of Gurmail Kaur and brother of Sarabjit Kaur appellants on 20.11.1997. Karamjit Kaur died an un-natural death in her matrimonial home within 14 months of her marriage. The present case hinges upon her dying declaration recorded in Civil Hospital, Ludhiana where she was got admitted after receiving burn injuries.

The prosecution case in brief is that Karamjit Kaur (since deceased) was got admitted at 4.45 PM on 3.11.1998 in Civil Hospital, Ludhiana by her husband Malkiat Singh as burn case regarding which a ruqa Ex. PA was sent by Dr. US Sooch, (PW1) Medical Officer, Civil Hospital, Ludhiana to SHO Police Station Sadar Ludhiana. ASI Mohinder Singh (PW13) then visited the hospital and obtained the opinion of the doctor through application Ex. PB/1 about the fitness of the injured to make statement. She was, however, declared unfit. On 4.11.1998, he again moved an application for the same purpose vide Ex. PW6/B and Karamjit Kaur was stated to be fit to make the statement. Finding the condition of Karamjit Kaur to be precarious he approached Smt. Devinder Pal Kaur, JMIC, Ludhiana (PW6) for getting statement of injured recorded. The said Magistrate recorded her statement Ex. PW6/E. ASI Mohinder Singh also recorded another statement Ex. PW8/A of injured Karamjit Kaur and after making his endorsement thereon sent the same to the Police Station on the basis of which formal FIR Ex. PF/1 was recorded. The initial statement (in vernacular) recorded by Smt. Devinder Pal Kaur, JMIC, when rendered in English translation reads as under:-

" Stated that quarrel was going on for the last ten days. My mother-in-law Gurmail Kaur used to quarrel with me. My sister-in-law Sarabjit Kaur also used to quarrel with me. My brother-in-law Joga also used to quarrel with me. My father-in- law was also toeing the same line. My younger sister-in-law Baljit Kaur had beaten me yesterday with sticks. My mother- in-law had taken the stick from her. My father-in-law said that myself and my husband would be got arrested by the police.

Thereafter my husband had gone to Bikkar, a milkman.

Yesterday at about 12/12.30 noon, my mother-in-law and my elder sister-in-law Sarabjit Sarabjit had poured oil on me and said that earlier I was spared but would be killed now. Then my mother-in-law and my elder sister-in-law had set me ablaze.

Thereafter my mother-in-law and sister-in-law pushed me after putting me on fire. On my shriek many persons had gathered there who put off the fire. Then my parents-in-law and other people brought me to Pandori Hospital, Mullanpur in a van.

The doctors had not cared of me. I was given an injection and thereafter I slept. (In vernacular it is written " Pandori walean ne teeka la dita te menu neend ae gae.") I do not know as to what has happened thereafter.

The aforesaid statement of Karamjit Kaur was recorded in Civil Hospital, Ludhiana who put her right thumb impression underneath the same.

RO&AC Sd/- English

RTI JMIC

Karamjit Kaur 4.11.1998"

The other statement recorded by ASI Mohinder Singh at 7.15 PM in the same Hospital runs as under:-

"Statement of Karamjit Kaur wife of Malkiat Singh D/o Joginder singh, aged about 20/21 years, caste Majbi resident of Kular runs as under:-

My parental village is Gagra. My parents are alive. We are four sisters and brothers. I am the eldest of all. I am Matriculate. On 20.11.97 my parents had solemnized my marriage with Malkiat Singh son of Major Singh of village Kular. Since the time of my marriage, my mother-in-law Gurmail Kaur, sister-in-law Sarabjit Kaur, brother-in-law Joga and father-in-law Major Singh used to quarrel with me. Now for the last ten days, the quarrel was going on. My mother-in- law Gurmail Kaur, sister-in-law Sarabjit Kaur and brother-in- law used to quarrel with me. My father-in-law also used to quarrel with me following their instigation. Yesterday, my elder sister-in-law namely Sarabjit Kaur beat me with the sticks. My mother-in-law had snatched the stick from her. My father-in-law had said that my husband and me should be got arrested by the Police. Thereafter my husband went back for his work to Bikker, Milk Vendor. Yesterday at about 12/12.30 of day time, my mother-in-law and elder sister-in-law Sarabjit Kaur poured kerosene on me and started saying that earlier she was spared but now they would kill me. Thereafter my mother- in-law and elder sister-in-law Sarabjit Kaur set me ablaze and after putting me on fire they pushed me. I raised hue and cry hearing of which so many persons gathered there. They extinguished fire on my person. Thereafter my parents-in-law and other people took me to Pandori Hospital at Mullanpur in Van. The doctors did not take care of me. I was given injection by doctors at Pandori on account of which I fell asleep. After that what happened, is not known to me.

Shinder Singh Panch Sd/- Karamjit Kaur

Village Gagra with her R.T.I.

Sd/- in Punjabi Karamjit Kaur abovesaid

Ginder Singh Sarpanch Attested

Village Gagra Mohinder Singh, ASI

Sd/- in Punjabi P.S.Sudhar 4.11.98."

The Investigating Officer inspected the place of occurrence; prepared rough site plan Ex. PG; took into possession one empty container of plastic and one match box from the spot vide recovery memo Ex. PW8/B.

On 7.11.1998, at 7.25 AM, Karamjit Kaur succumbed to her injuries. He post mortem examination was conducted by a board of doctors consisting of Dr. Gurjit Singh PW5 and Dr. Gagan Deep (not examined).

The accused were arrested on different dates. On completion of investigation, the present appellants and their aforesaid co-accused were charged as stated herein above.

The prosecution in order to substantiate its case has examined PW1 Dr. U.S.Sooch, Medical Officer, Civil Hospital, Ludhiana, PW2 Sukhwinder Singh, Draftsman, PW3 Bhola Singh, PW4 Niranjan Singh, PW5 Dr. Gurjit Singh, Medical Officer, Civil Hospital, Ludhiana, PW6 Mrs. D.P.Kaur Bedi, JMIC, Nawanshahr, PW7 Joginder Singh, PW8 Ginder Singh, PW9 Kuldip Singh, PW10 HC Jagtar Singh, PW11 Dr. Balwinder Singh, PHC, Sudhar, PW12 Manjit Kaur, PW13 ASI Mohinder Singh, PW14 Surain Singh, PW15 Dr. Amarjit Singh, PW16 Dr. R.S.Deol, Medical Officer, PHC, Malaud, PW17 HC Major Singh No. 97.

The stand taken by the appellants as emerging from the statement of Gurmail Kaur recorded under section 313 of the Code of Criminal Procedure is of false implication stating that on 3.11.1998, she along with Sarabjit Kaur the appellant herein and her husband Major Singh were in the fields and Joga Singh her son had gone outside for labour work.

They received information that Karamjit Kaur had caught fire. They immediately reached home and tried to extinguish it and during that process Major Singh had also received burn injuries on his both hands. It is then pleaded that Karamjit Kaur was firstly taken to Pandori Nursing Home and then shifted to Civil Hospital, Ludhiana. She furhter states that no dowry was ever demanded by in-laws of Karamjit Kaur and she was not harassed at any stage. At the time of admission of Karamjit Kaur in the hospital, the members of Panchayat of the village were also with them.

Sarabjit Kaur appellant has also toed the same line of defence.

The appellants had examined six witnesses in their defence.

After appreciating the entire evidence, the appellants now stand convicted and sentenced by the learned trial court as referred to above. Hence, this appeal.

We have heard Mr. N.S. Kandhola, learned counsel for the appellants and Mr. M.S. Sidhu, learned Senior Deputy Advocate General, Punjab. With their assistance, the entire record has also been perused by us minutely.

Mr. Kandhola submits that the case of the prosecution primarily hinges upon the statement of Karamjit Kaur only and the same is not free from doubt and therefore, it should not be made the basis of the conviction.

Developing his arguments, the learned counsel further submits that there are two statements of Karamjit Kaur, one recorded by the Magistrate at about 5 PM and the second by ASI Mohinder Singh after about 2 hours of the recording of the first one. Both are contradicting each other with regard to participation in the earlier altercation before the main incident when Karamjit Kaur was allegedly beaten up by stick (soti). In the first statement, she stated that her younger sister-in-law Baljit Kaur had beaten her with the stick whereas in the second statement which is the basis of the recording of formal FIR, she stated that her elder sister-in-law Sarabjit Kaur had beaten her up with stick. From this, learned counsel wants to develop that it appears that she was tutored by some one and therefore, it creates doubt even regarding first dying declaration recorded by the Magistrate. Strengthening his arguments, the learned counsel contends the Magistrate had stated in her substantive evidence that no one was present in the hospital whereas according to ASI Mohinder Singh certain persons were present in the hospital. As per the statement of Karamjit Kaur also, she was brought by her in-laws and other people. From this, the learned counsel develops that possibility of tutoring Karamjit Kaur by some one cannot be ruled out and as such it looses the sanctity. In support of his contentions, he relies upon a judgment of Hon'ble Apex Court rendered in State of Punjab vs Parveen Kumar 2005(1) RCR (Criminal) 146 in which in the first dying declaration only husband was implicated but in the second all the family members (parents, sisters of the husband) were involved and the Hon'ble Supreme Court while rejecting both the dying declarations upheld the acquittal.

Mr. Kandhola then submits that in order to involve the present two appellants, the prosecution has knitted a net wider alleging dowry demand at the hands of in-laws of Karamjit Kaur but the learned trial court has not only acquitted the father-in-law and brother-in-law (Major Singh and Joga Singh) of all the charges, even the present appellants have also been acquitted for the charges of section 304-B/34 IPC and 498-A IPC.

Admittedly the State has not preferred any appeal against the said acquittal and therefore, the judgment of the learned trial court in that regard has attained finality. According to the learned counsel, this flaw also creates doubt about the very case set up by the prosecution may be on the basis of a dying declaration.

Mr. Kandhola then contends that evidence of PW8 Ginder Singh is of no help to the prosecution as he has not supported its case.

On the basis of the aforesaid submissions, the learned counsel submits that the case of the prosecution is not free from doubt and therefore, both the appellants deserve acquittal.

Controverting the submissions advanced by Mr. Kandhola, learned State counsel submits that the learned trial court has rightly believed the dying declaration while convicting both the appellants. According to him, both the appellants have actively participated in the commission of the offence prior to the main occurrence also as both had been quarrelling with her as is clear from her statement. The learned State counsel then submits that acquittal of the other two co-accused would not be of any advantage to the present appellants as the acquitted persons had not played any active role except that the deceased stated that Joga Singh and Major Singh also used to quarrel with her. The conviction of the present two appellants, therefore, deserves to be affirmed, the learned State counsel so submits.

After hearing the rival contentions of either side and rescanning the entire evidence especially both the statements of Karamjit Kaur, we are of the considered view that the conviction already suffered by both the appellants, deserves to be reaffirmed.

It is settled legal position that the dying declaration by itself can be considered to be sufficient for recording the conviction provided it is found to be true. The sacred duty of the Court in that eventuality is to ensure that the deceased was in a fit mental condition to make the statement and it was a voluntary act, free from any outer pressure from any source because the deceased was never subjected to cross-examination. A dying declaration enjoys a sacrosanct status as a piece of evidence being in the shape of last words coming from the mouth of the deceased but the ultimate test certainly is whether the same can be held to be a truthful or not. We are examining both the statements of Karamjit Kaur in that perspective vis- a-vis participation of the present appellants.

It has come on record that Karamjit Kaur was not fit to make statement on 3.11.1998 initially when she was admitted in Civil Hospital, Ludhiana as is clear from the evidence on record. It is only on on 4.11.1998 when ASI Mohinder Singh PW13 reached the hospital and sought opinion about her fitness at about 2.00 PM. The doctor declared her fit to make a statement at 2.15 PM, the concerned Magistrate was called for recording her statement. Mrs. D.P.Kaur, Judicial Magistrate (PW6) who had recorded statement of Karamjit Kaur also states that ASI Mohinder Singh had already obtained opinion from the doctor. No doubt the Magistrate before recording the statement of the declarant had not obtained another certificate by the doctor about her mental condition but in our view the same would not be a ground to hold that the dying declaration is in-valid. It has also come in the statement of the aforesaid Magistrate that when she recorded the statement, Karamjit Kaur was fully conscious and she made the statement of her own. In cross-examination she makes it clear that the statement had concluded at 2.45 PM. This shows that the statement of Karamjit Kaur was recorded within half an hour of declaring her fit to make statement. She is shown to be fully conscious by the Magistrate herself. Therefore, from records it is very evident that the person (Magistrate) who was recording the dying declaration was satisfied that the declarant was in a fit medical condition to make a statement. We are, therefore, not at all suspicious about the dying declaration and it does not create any doubt in our mind with regard to sanctity of the same.

Much stress has been laid by Mr. Kandhola on the second statement Ex. PW8/A recorded by ASI Mohinder Singh, which is otherwise the basis of registration of First Information Report. No doubt even on the basis of first statement recorded by the Magistrate an FIR could be recorded but the same is not done by the aforesaid police official. It appears to us that he might have thought in his wisdom that he should record another statement of Karamjit Kaur for the purpose of recording of formal FIR and could not think that the earlier statement was legally enough for the same purpose. This, can be said to be remissness on the part of Investigating Officer which in any case does not create any suspicion about the truthfulness of the said statement. We are very conscious of the fact that in the second statement the basic difference which crept in is with regard to the earlier episode when beating was given to Karamjit Kaur since deceased. She in her statement before the Magistrate stated that Baljit Kaur had given her beatings with stick whereas in the second statement that role was attributed to Sarabjit Kaur, the appellant herein. The admitted position is that Baljit Kaur was not challaned in this case. Be that as it may, this discrepancy, in our considered view, is not fatal so as to discard the dying declaration in its entirety. In fact, Karamjit Kaur wanted to disclose that she was being beaten up by her in-laws, therefore, if one reads the initial statement recorded by the Magistrate, she stated that Joga her brother-in- law and Major Singh father-in-law had also been giving beating to her.

Both have now earned acquittal. The conviction of the present appellants is recorded by the trial court mainly on account of their active participation in the main incident when Karamjit Kaur was set on fire and we do not find any discrepancy in the two statements in that regard. The argument advanced by Mr. Kandhola on this aspect is, therefore, repelled.

The judgment rendered in Parveen Kumar's case (supra) relied by him is also distinguishable on facts and does not advance his case at all.

Another glaring fact which leads us to hold that both the statements of Karamjit Kaur are true to the core and not tutored one as stated by Mr. Kandhola on a very simple rationale that no attempt has been made by her at least to involve her in-laws with the allegation of dowry demand. She simply states that there used to be a quarrel in the house.

Admittedly this occurrence has taken place within 14 months of her marriage in her matrimonial home. As per the statement of Karamjit Kaur, one cannot find the root cause. No doubt the complainant side subsequently put the investigation of this case on different track as well alleging that the in-laws were not happy on account of bringing poor dowry and used to maltreat their daughter-in-law. The challan was filed by the prosecution in that regard and charges were also framed against the appellants and their co-accused under sections 304-B/34 and 498-A IPC of which they have since been acquitted but, in our view, the involvement with dowry allegation was primarily on account of natural hatred in the minds of the parents of deceased who died an un-natural death within a short period of her marriage. There is, however, no tinge of adulteration in the statement of the deceased at least. Another fact which strengthens our view is that no active role has been ascribed even to Major Singh (father-in-law), Joga Singh (brother-in-law) and for this reason they have been acquitted of the main charge of section 302/34 IPC also. We have, thus, analysed the dying declarations very carefully from all the angles and have arrived at a definite conclusion that whatever is recorded in her statements is the true reflection of her condition and what actually had happened with her (Karamjit Kaur) which is sufficient to hold conviction of both the appellants.

We do not feel the necessity of discussing the other part of the evidence led by the prosecution for the reason that dying declaration of Karamjit Kaur is already believed by us as true on the basis of aforesaid discussion. Consequently finding no infirmity in the impugned judgment of conviction and sentence we hereby re-affirm the same.

The net result is that the instant appeal is dismissed.

( Virender Singh )

Judge

( A.N. Jindal )

August 31, 2006 Judge

'dalbir'


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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