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CASE NO.: Appeal (crl.)  957 of 2005

PETITIONER: Balbir Singh & Anr

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 26/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Appellant No.1 was married to Amarjit Kaur (deceased).  She had  been complaining of ill-treatment at the hands of her in laws.  The dispute  between the deceased on the one hand and Appellants on the other was  resolved by Panchayat.  As despite the same, ill-treatment continued, an  application was filed before the Senior Superintendent of Police by the  deceased.  Appellant No.1 was working as Sepoy in the Indian Army.  He  took leave for two months.  A settlement was effected whereby Appellants  were made responsible for any untoward incident that might happen to the  deceased.  She in view of the said settlement came to her matrimonial home.  On 12.10.1995,  she received 90% burn injuries.  She was taken to a  hospital.  Although she was in her senses, having regard to the extent of burn  injuries suffered  by  her,  the  doctors  attending on  her opined  that  her  dying  declaration should   be  taken.  Her  dying  declaration  was  taken  down  by  one  Dr.  Anoop  Kumar in presence  of  other  doctors  including  Dr. R.S. Kadiyan, Professor  of  Skin and VD Department, Christian  Medical College, Ludhiana. The  said  dying declaration,  marked  as  Ex. P- 1,  which  was  recorded  at  about 08.30 A.M. on 12.10.1995,  reads as  under :

       "Pt. Amarjit Kaur w/o Balbir Singh, unit No.C- 180136 aged 24 years, married for three years as stated  by patient herself in presence of Dr. R.S. Kadyan (Addl.  Deputy Medical Superintendent), Dr. Tejinder Singh  (DCMO, CMCH Ludhiana.  Pt. was brought  to Casualty  Deptt. Of CMCH Ludhiana at 830 a.m. on 12.10.95 by  neighbours along with husband who was forced by the  neighbours to accompany them as stated by the Pt.    According to patient she was conflict with her husband  and mother in law for whole night yesterday at 4.00 a.m.  in the morning when she went for urination, her husband  approached from behind and threw kerosene oil and  ignited her and locked the door from outside.  She cried  and was rescued by neighbours and brought to the  hospital.  Patient was referred from Civil Hospital,  Malerkotla."

       Her parents in the meanwhile were also informed.   They came to the  hospital.  The First Information Report was lodged at about 09.30 a.m. on  the same day; whereupon a case under Sections 307/498-A of the Indian  Penal Code was registered.  The Investigating Officer came to the hospital  and recorded a second dying declaration which was marked Ex.P-J.  In the  said dying declaration she not only named her husband but also her mother-  in-law, inter alia, stating :                  

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"\005But dispute continued as usual.  Today at about 5  A.M., when I got up for urinating (sic for urination)  and  went inside the bath room constructed in the house.  Then  with  an intention to kill me and as a part of their  conspiracy, my husband Fauji  Balbir Singh and mother- in-law Nachattar Kaur set me on fire after pouring  kerosene, due to which I was badly burnt.  I raised an  alarm saying ’Bachao Bachao’ (Save-Save) and both of  them ran away.  My father-in-law Joga Singh with an  intention to save me, first took me to Malerkotla Hospital  in a Taxi from where I was referred to Patiala by the  doctor  due to extensive burns, but my father-in-law took  me to CMC Ludhiana.  Where I am lying on death bed.   Action may be taken."

       The said dying declaration bore her signature.  She died on  16.10.1995 at about 01.15 a.m., whereupon a case under Section 302 IPC  was registered.  During trial the learned Sessions Judge framed charges  under Section 302 IPC read with Section 34 thereof or in the alternative  under Section 304-B read with Section 304-B read with Section 34 IPC.   Appellants were also charged under Section 498-A read with Section 34  IPC. The charges framed by the learned Sessions Judge read as under :

       "That on 12.10.1995 at about 5.00 A.M. within the  revenue limits of village Bhurthala Mander, in  furtherance of  the common intention of both of you, you  Balbir Singh and Nachhatar Singh intentionally caused  the death of Amarjuit Kaur daughter of Ram Kishan  Singh and that by you both committed an offence  punishable under Section 302 read with Section 34 IPC  or in the alternative under Section 304-B read with  Section 34 IPC and within the cognizance of this Court.

       Secondly during the period from 1993 to 1995 in  furtherance of the common intention of you both, you  Balbir Singh and Nachhatar Kaur committed cruelty on  aforesaid Amarjit Kaur d/o Ram Kishan Singh with a  view coercing her to meet the unlawful demand of dowry  and thereby you both committed an offence punishable  under Section 498-A r.w. 34 of Indian Penal code and  within the cognizance of this Court.

       And I hereby direct that you both be tried by this  Court for the aforesaid offences."  

No plea was taken in regard to the alleged defect in framing of the  charges by Appellants at any stage.  No prejudice was ever pleaded by the  accused.  The learned Sessions Judge convicted the Appellants both under  Section 302 IPC as also under Section 498-A thereof and sentenced them to  undergo rigorous imprisonment for life under Section 302 read with Section  34 IPC and to pay a fine of Rs.2,000/- each and in default of fine to undergo  rigorous imprisonment for six months.  They were also sentenced to undergo  rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each  and in default of fine to undergo rigorous imprisonment for three months  under Section 498-A IPC.

       The appeal preferred by Appellants before the High Court has been  dismissed by the impugned judgment.

       Mr. Prem Malhotra, the learned counsel appearing on behalf of  Appellants, in support of the appeal raised the following contentions :  

(i) That the charges framed against the Appellants being illegal, the  impugned judgment of conviction and sentence cannot be sustained;  

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(ii) As there are inconsistencies and contradictions between the two  purported dying declarations, Ex.P-1 and P-J, no reliance should be placed  thereupon;  

(iii)  The deceased having suffered extensive burn injuries, she could  not have been in a fit condition to give the said dying declarations;

(iv)  In any event, there is nothing to show that she was in a position  to put her signature on the second dying declaration;  

(v)  There was no reason as to why the Magistrate had not been sent  for to record her dying declaration as the deceased expired after four days of  sufferance of the burn injuries.   

       The learned counsel appearing on behalf of the State, on the other  hand, urged  that :  

       (i) The prosecution case must be considered keeping in view the   disputes of the parties.    (ii) As the occurrence having taken place in the bathroom, it was  urged, it is wholly unlikely that the deceased committed suicide.   (iii)  Although in the first dying declaration, the name of Appellant  No.2 was not disclosed, the same may be ignored in view of the fact that she  was named specifically in the second dying declaration.   (iv)  There is nothing on record to show that the deceased was not in a  position to put her signature on the dying declaration.

       Where a death takes place within the four walls of a room, the  prosecution ordinarily would not be able to examine any eye-witness.  A  case of this nature, thus, must be judged  having regard to the entirety of the  circumstances which have been brought on record  by the prosecution.    

Dr. S.S. Kokhar, (PW-3), Senior Medical Officer, Civil Hospital  Malerkotla, stated that the deceased was brought at the Emergency Ward  with 70% burn over the body.  Dr. K.C. Goyal sent the information about the  incident to the police. He further stated that the patient was referred to a  "higher institution".

       Dr. R.S. Kadiyan (PW-12) witnessed recording of the statement of  Amarjit Kaur by Dr. Anoop Kumar.  He found her to be in her senses.  He  proved the dying declaration.  He also stated that Dr. Tejinder Singh and Dr.  Ashish Gupta were also present.  The witness stated that although they  thought of calling for some Magistrate for recording her statement but  having regard to serious condition of the patient and as the  time therefor  was short, it was decided not to wait therefor.  

       PW-13 is Dr. Anoop Kumar, who had recorded the dying declaration.   In his deposition,  he categorically stated :

"\005Amarjit Kaur was admitted in the  hospital at about  8.30 a.m.  on 12.10.95.  I suspected that Amarjit Kaur  can succumb to the burn injuries when I first saw her.  I  did not send the information to police about my suspicion  that she may die of burn injuries.  I did not send for any  Magistrate to come and record her statement.  I gave the  information to my superiors on telephone.  The  Additional Deputy Superintendent reached in the  emergency within about five minutes.  It was not  suggested to me by Medical Superintendent who came  that I should send the request to the police or to the  Magistrate for recording statement of Amarjit Kaur\005"

       As regards the reason for not taking either thumb impression or

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signature of the deceased on the dying declaration,  he stated :

"\005Statement of Ex. PP is not thumb marked or signed  by the lady but she was having burns on all over the body  including palms of the hand.  There is no burn injury on  the toes of the feet of the deceased.  I did not obtain the  impressions of  toes of the patient because I was not  aware that this can be done.  I do not remember if the  thumb  of the finger toes were partly or totally burnt.   When patient was brought in the hospital she was given  in tera benus fluids.  I did not do that the bandage of the  wounds.  I do not remember if the hands of the lady were  having the bandage when I recorded her statement.  It  took about ten or fifteen in recording the statement of  Amarjit Kaur."

       We would consider the effect of the said statement a little later.  

       It may be true, as was contended,  that Dr. Ashish Gupta was not  examined but it is borne out from the records that he at the material time,  had gone abroad.   

Keeping in view the statements of Dr. R.S. Kadiyan and Dr. Anoop  Kumar, in our opinion, it was also not necessary to examine Dr. Ashish  Gupta.  The second dying declaration was recorded by Sub Inspector  Tejinder Singh (PW-10).  When the second dying declaration was being  recorded, he had obtained the opinion of the doctor that the deceased was fit  to make her statement.   

Contention of Mr. Malhotra that the Magistrate was not called to  record such statement may  have any substance but the same by itself cannot  be a ground to reject the whole prosecution case.   

       It is not in dispute that the deceased suffered extensive burn injuries.   She had burn injuries almost  on her whole body.  This is evident from the  post mortem report as was proved  by Dr. U.S. Sood.   

       We  have seen the signature of the deceased in the original of Ex.P-Z  which shows that the same was put with great difficulties.  It is also not the  case of the Appellants that she could not write her name in English.  No  suggestion was also put to the Investigating Officer that the signature  appearing on the second dying declaration was not of the deceased.   

       The law does not provide that a dying declaration should be made in  any  prescribed manner or  in the form of questions and answers.  Only  because a dying declaration was not recorded by a Magistrate, the same by  itself, in our view,  may not be a ground  to disbelieve the entire prosecution  case.  When a statement of an injured is recorded,  in the event of her death,  the same may also be treated to be a First Information Report.   

Dying declaration, however, must be voluntary.  It should not be  tutored.  It is admissible in evidence in special circumstances. But it must be  borne in mind that its admissibility is statutorily recognized in terms of   Section 32 of the  Indian Evidence Act.  

       The effect of the statement being not recorded before a Magistrate  would depend upon the facts and circumstances of each case and no hard  and fast rule can be laid down therefor.  

If, however,  wholly inconsistent or contradictory statements are made  or if it appears from the records that the dying declaration is not reliable, a  question may arise as to why the Magistrate was not called for, but  ordinarily the same may not be insisted upon.

       Kamla (Smt.) v. State of Punjab  [(1993) 1 SCC 1], relied upon by Mr.

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Malhotra,  falls in the above category.  In that case four dying declarations  were made,  and one could not be reconciled with the other.  In the aforesaid  fact situation, it was held  :

"If we examine all these dying declarations one by  one we notice glaring inconsistencies as to who exactly  poured kerosene and set fire or whether she caught fire  accidentally. Suicide however is ruled out. In Ex. PB/2  recorded by PW 2 the deceased stated that her mother-in- law sprinkled kerosene from behind and burnt her. In the  next statement Ex. DA recorded by Dr Jaison Chopra,  CW 1, she is alleged to have stated that her clothes got  burnt catching fire from the stove, thereby indicating that  it was an accident. In the third statement Ex. PJ recorded  by CW 2 she was rather vague as to who exactly poured  kerosene and set fire on her and she only stated that it  could be possible that her mother-in-law and father-in- law might have set the fire after pouring kerosene. On  September 30, 1979 Ex. PD was recorded in the presence  of three doctors, PW 7, PW 3 and CW 1 wherein she  stated that she turned to the store and she heard her  mother-in-law and father-in-law talking behind her and  suddenly they poured kerosene and they set her on  fire\005"

       However, in State of Karnataka v. Shariff [(2003) 2 SCC 473], this  Court categorically held that there was no requirement of law that a dying  declaration must necessarily be made before a Magistrate.  This  Court  therein noted its earlier decision in Ram Bihari Yadav  v. State of Biha and  Others [(1998) 4 SCC 517], wherein it was also held that the dying  declaration need not be in the form of questions and answers.  [See also  Laxman v. State of Maharashtra (2002) 6 SCC 710]   

       There is, however, no escape from the fact that in the first dying  declaration, Appellant No. 2 was not named.  The fact that she  was brought  in a burnt condition is not in dispute. She had exonerated her father-in-law.   According to her, she was brought in the hospital by her father-in-law.  The  records, however, suggested that she was admitted by her husband.  Presumably both were present.

       We have earlier noticed that her husband was forced to bring her to  the hospital by the neighbours.  His culpability has categorically been stated  by the deceased in both the dying declarations.

She had categorically stated that her husband had put kerosene oil  upon her and upon igniting, locked the door of the bathroom from outside.   She was rescued by the neigbours.  A case of suicide, therefore, must  necessarily be ruled out.   She was first taken to the Civil Hospital and then  to the Christian Medical College, Ludhiana.

       We may place on record our appreciation as to the role played by the  doctors and the concern shown by them.  In view of the manner in which she  made her statement before the doctor, in our opinion, it is difficult to hold  that her first statement was not voluntary or was tutored.  For arriving at the  said finding, the time factor is also significant.

       In  Jai  Karan v. State of  Delhi (NCT) [(1999) 8 SCC 161], it was  held :

"A dying declaration is admissible in evidence on  the principle of necessity and can form the basis for  conviction if it is found to be reliable. While it is in the  nature of an exception to the general rule forbidding  hearsay evidence, it is admitted on the premiss that  ordinarily a dying person will not falsely implicate an

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innocent person in the commission of a serious crime. It  is this premiss which is considered strong enough to set  off the need that the maker of the statement should state  so on oath and be cross-examined by the person who is  sought to be implicated. In order that a dying  declaration may form the sole basis for conviction  without the need for independent corroboration it must  be shown that the person making it had the opportunity  of identifying the person implicated and is thoroughly  reliable and free from blemish. If, in the facts and  circumstances of the case, it is found that the maker of  the statement was in a fit state of mind and had  voluntarily made the statement on the basis of personal  knowledge without being influenced by others and the  court on a strict scrutiny finds it to be reliable, there is  no rule of law or even of prudence that such a reliable  piece of evidence cannot be acted upon unless it is  corroborated. A dying declaration is an independent  piece of evidence like any other piece of evidence \027  neither extra strong nor weak \027 and can be acted upon  without corroboration if it is found to be otherwise true  and reliable\005"

       In State of Maharashtra v. Sanjay S/o Digambarrao Rajhans [(2004)  13 SCC 314], it was observed :

"\005It is not the plurality of the dying declarations that  adds weight to the prosecution case, but their qualitative  worth is what matters.  It has been repeatedly pointed out  that the dying declaration should be of such nature as to  inspire full confidence of the court in its truthfulness and  correctness (vide the observations of a five-Judge Bench  in Laxman v. State of Maharashtra).  Inasmuch as the  correctness of dying declaration cannot be tested by  cross-examination of its maker, "greater caution must be  exercised in considering the weight to be given to this  dying declaration genuinely recorded, they must be tested  on the touchstone of consistency and probabilities.  They  must also be tested in the light of other evidence on  record.  Adopting such approach, we are unable to place  implicit reliance on the dying declarations, especially  when the High Court felt it unsafe to act on them\005"                     Yet again in  Muthu Kutty and Another v. State by Inspector of  Police, T.N.  [(2005) 9 SCC 113], while summarizing the law, this Court,  inter alia, stated  :   

"(xi) Where there are more than one statement in the  nature of dying declaration, one first in point of time  must be preferred. Of course, if the plurality of dying  declaration could be held to be trustworthy and reliable,  it has to be accepted. (See Mohanlal Gangaram Gehani  v. State of Maharashtra)"

       The backdrop of the events is not much in dispute.  The dispute  between the deceased and the family of the Appellant is borne out from a  DDR (Ex.PO) recorded on 21.08.1995, wherein it was recorded that because  of a dispute she had gone to her parents’ house and that as a result of the  compromise, ’the grievances had been removed and the accused Balbir  Singh and his family would be responsible for any loss to the lady’.  It is  also substantiated by the testimonies of Ram Kishan (PW-6),  father of the  deceased,  Gurdev Kaur (PW-7), mother of the deceased,  Ajaib Singh (PW- 8), and Sarup Singh (PW-9) relatives of the deceased, who had categorically  deposed stating how the deceased received maltreatment at the hands of   Appellants on account of non-fulfillment of their demand of dowry.  The  

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deliberations which had taken place  in the Panchayat had also been proved  by Ajaib Singh (PW-8)  and  Sarup Singh (PW-9).

       Although we have been taken through the depositions of the said  witnesses, nothing has been pointed out to discard their testimonies.  

We,  in view of the order proposed to be passed by us, do not intend to  delve into the testimony of Sub Inspector, Tejinder Singh (PW-10) as  regards recording of the second dying declaration.   

We are of the opinion that whereas the findings of the learned  Sessions Judge as also the High Court in regard to guilt of Appellant No.1  must be accepted, keeping in view the inconsistencies between the two  dying declarations, benefit of doubt should be given to Appellant No.2.  We,  however, uphold the conviction and sentence of both the Appellants under  Section 498-A IPC.

       This leaves us the alternative question as to whether framing of charge  was permissible in law.  The said question has not been raised even in the  special leave petition.  No such point was also taken before the learned Trial  Judge or the High Court. Appellants have not shown any prejudice even in  their statements under Section 313 of the Code of Criminal Procedure.   

       Strong reliance, in this connection, has been placed by Mr. Malhotra  on Soni Devrajbhai Babubhai v. State of Gujarat and Others [(1991) 4 SCC  298].  The question which arose therein was the applicability of Section 304- B IPC, where the death had occurred prior to insertion of the said provision  in the statute book.  The question, therefore, which arose for consideration  therein, was as to whether conviction under Section 304-B of the Indian  Penal Code would be violative of clause (1) of Article 20 of the Constitution  of India. It was in the aforementioned fact situation, the contention of   Respondent therein that Appellant should be punished under Section 304-B  IPC was rejected.                       In Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC  577], the  question which arose for consideration of this Court was as to  whether in a case where the only charge framed against the accused was  under Section 302 IPC, he ccould be convicted under Section 304-B thereof.   In  holding that the same would be impermissible, it was stated :

"Now take the case of an accused who was called  upon to defend only a charge under Section 302 IPC. The  burden of proof never shifts on to him. It ever remains on  the prosecution which has to prove the charge beyond all  reasonable doubt. The said traditional legal concept  remains unchanged even now. In such a case the accused  can wait till the prosecution evidence is over and then to  show that the prosecution has failed to make out the said  offence against him. No compulsory presumption would  go to the assistance of the prosecution in such a situation.  If that be so, when an accused has no notice of the  offence under Section 304-B IPC, as he was defending a  charge under Section 302 IPC alone, would it not lead to  a grave miscarriage of justice when he is alternatively  convicted under Section 304-B IPC and sentenced to the  serious punishment prescribed thereunder, which  mandates a minimum sentence of imprisonment for seven  years.  The serious consequence which may ensue to the  accused in such a situation can be limned through an  illustration: If a bride was murdered within seven years  of her marriage and there was evidence to show that  either on the previous day or a couple of days earlier she  was subjected to harassment by her husband with  demand for dowry, such husband would be guilty of the

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offence on the language of Section 304-B IPC read with  Section 113-B of the Evidence Act. But if the murder of  his wife was actually committed either by a dacoit or by a  militant in a terrorist act the husband can lead evidence to  show that he had no hand in her death at all. If he  succeeds in discharging the burden of proof he is not  liable to be convicted under Section 304-B IPC. But if  the husband is charged only under Section 302 IPC he  has no burden to prove that his wife was murdered like  that as he can have his traditional defence that the  prosecution has failed to prove the charge of murder  against him and claim an order of acquittal."

       The said decision has  also no application in the instant case.  As the  Appellants had the requisite knowledge of the charges against them, it may  or may not be justifiable for the learned Trial Judge to frame an alternative  charge, but from what we have noticed hereinbefore evidently they were not  prejudiced in any manner whatsoever.   

       Effect of framing of alternative charges vary from case to case.  In the  peculiar facts of  present case, we are of the opinion that Appellants having  not raised any grievance at any stage in that behalf, they cannot be allowed  to do so at this stage.   

For the aforementioned reasons, we are of the opinion that there is no  merit in the appeal of Appellant No.1 which is dismissed.  The conviction  and sentence of Appellant No.2 under Section 302 read with Section 34 IPC,  however,  is set aside.  However, conviction and sentence of the Appellants  under Section 498-A is upheld.   Appellant No.2 is said to be in custody for  four years.  She would, therefore, be released forthwith.  The appeal is  allowed in part and to the  extent mentioned hereinbefore.