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2016 Supreme(P&H) 3510
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Anita Chaudhry
Crl. Appeal No. S-1956-SB of 2003
Yashpal
v.
State of Punjab
{Decided on 21/07/2016}
For the Appellant:Ms. Tanu Bedi, Advocate assisted by Mr. Shivam Grover, Advocate.
For the Respondent: Mr. Deep Singh, AAG Punjab.
Dying Declaration – Statement recorded by investigating officer not to be considered until and unless the court is satisfied, as to way it was not recorded by the Magistrate or by a Doctor.
Headnote:(A) Evidence Act, 1872, S.32 – Dying Declaration – Where the dying declaration is suspicious then it cannot be acted upon without corroborating evidence but dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (Para 18)
(B) Indian Penal Code, 1860, S.302, S.304-B & S.306 – Murder – Dowry Death – Abetment to suicide – In case of unnatural death of a married women the husband could be prosecuted u/s 302, 304-B & S.306 – Distinction as regard to commission of an offence discussed. (Para 26)
(C) Evidence Act, 1872, S.32 – Dying Declaration – Certificate of Fitness – Statement recorded by investigating officer not to be considered until and unless the court is satisfied, as to way it was not recorded by the Magistrate or by a Doctor. (Para 31)
(D) Indian Penal Code, 1860, S.304-B – Dowry Death – Dying Declaration – Accused convicted despite the fact that in dying declaration deceased has not named accused – Dying Declaration not relied on following basis:-
(i) It was recorded by investigating officer without obtaining fitness certificate.
(ii) No urgency show for not calling doctor or magistrate.
(iii) Investigating officer did not appear to prove the recording of statement.
(iv) No explanation why there was any need for him to call the Panchayat and record the statement that there was no dowry demand.
(v) Complainant (Father of deceased) and other prosecution witnesses have spoken about the demand and the harassment of girl was facing – Evidence Act, 1872, S.32.
Mrs. Anita Chaudhry, J.:- The appellant was convicted and sentenced to undergo 10 years rigorous imprisonment alongwith fine of Rs. 2000/- under Section 304-B IPC. In default of payment of fine he was to further undergo rigorous imprisonment for a month. Aggrieved by the judgment, this appeal.
2. The unfortunate incident took place in November 1996 but the case was registered in December 1997 on the basis of a letter sent by the Addl. DGP (Crimes), Chandigarh to the Senior Superintendent of Police, Kapurthala. The brief facts are adumbrated below :-
3. Anju Bala was taken to the Civil Hospital, Phagwara with burn injuries on 18.11.1996. Ruqa was sent to the police. Mohinder Singh SI recorded her statement on the next day. It was disclosed that burn injuries were suffered while preparing meals. Anju died on 24.11.1996. No FIR was registered and SI Mohinder Singh concluded that no cognizable offence was made out. The proceedings under Section 174 Cr.P.C. were drawn up.
4. Jagdish Mittar father of Anju Bala approached the High Court with a complaint that his daughter had been set on fire in connection with demand of dowry. He named the husband and other relatives for the incident. The letter was sent by the Addl. DGP (Crimes), Chandigarh to the Senior Superintendent of Police, Kapurthala and FIR was registered on the statement made by the father. Jagdish Mittar disclosed that his daughter was frightened and did not narrate the incident for 2/3 days. She was carrying pregnancy of four months. He had disclosed that Anju was married in February 1996 and was treated with cruelty and beaten up for demand of dowry. He was poor and was unable to fulfill the demands. It was found in the enquiry that Anju Bala did not catch fire accidentally. It was also found that Mohinder Sigh SI was extremely careless and departmental proceedings were recommended against him. Site plan was prepared and the accused were arrested. The police filed the challan against the husband and the mother-in-law under Sections 304-B and 498-A IPC. At the trial the prosecution examined Jagdish Mittar, Kanta (mother of the deceased) and the uncle namely Ramesh Kumar. Besides them Dr. Harbans Kaur who was on emergency duty at Civil Hospital, Phagwara. She had referred the patient to DMC Ludhiana on the same day. Dr. U.S. Sooch, Medical Officer, Civil Hospital Ludhiana had conducted the post-mortem examination. The body was identified by Ramesh Kumar and Tarsem Lal.
5. The Medical Officer had found the following injuries: -
“Superficial to deep burns all over the body except the lower part of front of the abdomen and perinium and sides of both feet. Pus and slough were present at many places on the deadbody. The crest formation was present at the other places on the deadbody. The singing of hair of body was present and the scalp the cause of death, in this case, in the opinion of the doctor, was as a result of septicemia due to extensive infected burns which were sufficient to cause death, in the ordinary course of nature. The time lapsed between the burns and death was about 6 days and the time between death and post mortem examination was about 24 hours. He proved Ex. PE, the carbon copy of the post mortem report and Ex.PE/1, the pictorial diagram.”
6. The prosecution also examined Inspector of the Crime Branch. He also proved the record and the letter sent by the Addl. DGP (Crime Branch), Punjab. He also proved the statement given by Jagdish Mittar.
7. SI Mohinder Singh left for Canada and did not come back and the prosecution was unable to examine him and gave him up. Kuldip Singh the second Investigating Officer meanwhile had died.
8. In the statement recorded under Section 313 Cr.P.C. the accused abjured the trial and pleaded that the relations between the couple were cordial and there was no demand of money nor the girl was harassed and it was an accidental fire while preparing meals on the stove. It was stated that the dispute arose when Jagdish Mittar
