Kartar Singh vs State of Haryana

Sat Pal, J.

This appeal is directed against the judgment dated 28th April, 1994, passed by the Sessions Judge, Kurukshetra. By this judgment, the learned Sessions Judge has convicted the appellant for the offence under Section 302 IPC and also for the offence under section 354 IPC. The learned Sessions Judge has awarded punishment of rigorous imprisonment for life and a fine of Rs. 5000/ (in default of payment of fine, to undergo further rigorous imprisonment for one year) for the offence under Section 302 IPC and he has awarded the punishment of rigorous imprisonment for one year and a fine of Rs. 500/ (in default of payment of fine, to undergo further rigorous imprisonment for six months) for the offence under Section 354 IPC.

A case under Sections 302/452/307/354/506 Indian Penal Code was registered against the appellant on 16th June, 1993, at PS Jhansa District Kurukshetra vide FIR No. Exhibit PD/3 recorded at 6.15 p.m. on the basis of the statement of the deceased Savita daughter of Jagdish Singh, PW 15. The said statement was recorded by Jogi Ram ASI, PW 17 at 5.30 p.m. after Dr. Surinder Kumar, PW 1 Medical Officer, Primary Health Centre, village Jhansa had given a certificate that Savita was fit to make a statement and the same runs as under :

"I am a resident of Ajrana Kalan. Kartar Singh Jat Sikh, runs a shop of a doctor about 50 yards from our house and we get medicines from him occasionally for minor ailments. 4 or 5 days prior to today, Kartar Singh came to our house. I was alone at my house. On seeing me alone inside the house, Dr. Kartar Singh closed (bolted) the door from inside and the said doctor started teasing me (Chherkhani Karne Laga) and he attempted to untie the string of my Salwar. I tried to raise a noise. Thereupon, Kartar Singh placed his hands upon my mouth. In the meantime, my mother knocked the door from outside and gave a call. Kartar Singh felt frightened and his hand slipped from my mouth. I ran and opened the bolt of the door from inside. Dr. Kartar Singh opened the other door of the house and ran away. I narrated the whole occurrence to my mother, but my mother said nothing due to shame. I regarded the whole incident as a source of ill fame to me and continued to feel insulted. Today, Dr. Kartar Singh opened his shop. I went there and told him that he had insulted me very badly. Thereupon, the doctor asked me to leave the place, failing which he would kill me. I went to my house, sprinkled kerosene oil upon me and came back to the shop of the doctor. I asked him to kill me. Dr. Kartar Singh became angry all of a sudden and put a burning match stick on my body. As a result of which my clothes caught fire and I started running here and there due to pain. I became unconscious and I came to my senses in the hospital. Now, I am in full senses. I have heard my statement which is correct."

It is further the case of the prosecution that ASI Jogi Ram (PW 17) started investigation at the spot and recorded the statements of Jagdish Singh, Smt. Kela Devi, parents of the illfated Savita and that of Dr. Surinder Kumar. He prepared the rough site plans Exhibits PQ & PQ/1, partially burnt curtain (Exhibit P3) and Chappals (Exhibit P4/1 and P4/2) belonging to Savita were seized by him from inside the shop of the appellant and he sealed them into a parcel. He also recorded the statements of Phool Singh, Jai Pal Singh, Rohtash and Hari Singh under Section 161, Cr.P.C. The case property was deposited with the MHC who sent the same for chemical examination.

It is further alleged that Kumari Savita was referred to PGI, Chandigarh by the Primary Health Centre, Jhansa. In PGI, after Dr. N. Arya gave a statement that Savita was in a fit condition to give her statement, her statement was recorded by Shri P.S. Kalley, Executive Magistrate, (PW 2) on 20th June, 1993 at 2.10 a.m. This statement runs as under :

"My name is Savita. I reside in my house along with my Mummy and Pappa. My father is employed as a Storekeeper and he used to come at home on Sundays. Then incident took place, on 6th June, again said on 14th June, there is a doctor in our lane, whose name is Kartara. He came in my house and asked where my mummy was, she was not at home at that time. Then he had gone. After sometime, after 5 minutes he came again and entered my house and shut the door. In the meantime my mother Kela Devi came from outside and called my name Savita, Savita, then I opened the door. At that time he was at my house. My mother came inside and gave him beating and asked him why he had come to her house. I told my mother that Kartara has done Jabardasti with me. In the meantime, people gathered there and then he ran away. He apprehended danger of his life that he would be killed. On Friday, after 4 to 5 days, he opened his shop. I went to his shop and told him "Kartara close your shop". He told me that I should die by burning. I replied him that I am a daughter of my father and I will kill myself by burning. Kartara told me that I should go to home and return after putting kerosene oil upon me and that he will set me on fire by match stick. Again said that I sprinkled kerosene oil on my body and came to the shop of Kartara. His brother and Premwati were there. I told him that he has again come to the shop would get you killed by my brother. Then he lighted a match stick and set me on fire. I came to house. On the way, people threw pitchers of water upon me. On reaching home, I told that Kartara had set me on fire. My mother took me to the hospital at Jhansa and then I was brought to Chandigarh."

Savita died on account of burn injuries on 21st June, 1993 at 3.45 p.m. Inquest proceedings on her dead body were carried out by ASI Jogi Ram (PW 17). The postmortem was carried on her dead body by Dr. G. Verma (PW 3). The following injuries were found on the body of Savita :

"External Injuries :

II degree to III decree infected burns were present on face (area below lower lip to both the ears, involving both the pinna, both the cheeks) whole of neck, front and back of whole of trunk involving perineum in front and buttocks (both) on the back, both the upper limbs except an area on lateral aspect of both the arms and dorsum of both the hands, both the lower limbs including feet. Approximate percentage of burns was 89%.

An infected stitched wound 4 cm. was present on the medial aspect of the left ankle.

Scalp, vassels were congested. Rest i.e. skull and vertebrae were NAD (nothing abnormal detected). Meninges were congested. Brain and spinal cord were NAD. In thorax walls as explained, rest i.e. ribs and certilages were NAD. Pleural cavities were NAD, Larynx and trachea were NAD. Both the lungs were congested and on cut section both lungs showed pus mixed with blood. Pericardium, heart, large vessels, coronary vessels were NAD.

In abdomen peritonal vassels were congested. Mouth, pharynx and Oesophagus both the lips were spared. Rest were NAD. In stomach mucosa was NAD and contents were about 50 ml. of yellowish and fluid.

Small intestine and its contents were NAD. Large intestine and its contents were NAD. Liver, spleen and kidneys were congested. Blood was empty and NAD. Organs of generation, external and internal in case of female condition of uterus.

External as explained. Rest NAD."

In the opinion of Dr. Verma, the cause of death was septicaemia following infected burns (approximately 89%) which was sufficient to cause death in the ordinary course of nature.

It is further the prosecution case that Baljinder Singh brother of the accused was present at the time of occurrence and he helped in quenching the fire from the clothes and body of Savita and in that process, he suffered certain burn injuries on his person. He was also medicolegally examined by Dr. Surinder Kumar (PW 1) on 6th July, 1993, and according to Dr. Surinder Kumar, the possibility of such injury having been caused by thermal injuries i.e. flames and kerosene oil could not be ruled out.

On completion of the investigation, the accused was challaned under Sections 302/376/511 IPC. In support of its case, the prosecution examined 16 witnesses. PW 1 Dr. Surinder Kumar had examined Savita on 16th June, 1993 and he had attested the first dying declaration recorded by ASI Jogi Ram (PW 17). PW 2, Shri P.S. Kalley, who at the relevant time, was working as Executive Magistrate at Chandigarh, had recorded the second dying declaration Exhibit PF/3 in PGI Chandigarh on 20th June, 1993, at 2.10 a.m. PW Dr. G. Verma had conducted the post mortem examination. PW 4 H.C. Piara Singh had gone to the Executive Magistrate PW 2 to request him to come to PGI, Chandigarh, to record the statement of Savita. PW 5 Mukesh Kumar prepared the site plan. PW 6 Naresh Kumar SI had made application to the doctor for examination of Baljinder (brother of the appellant). PW7 Babu Ram had arrested the appellant on 27th June, 1993. PW 8 Raj Kumar ASI had recorded the formal FIR. PW 9 Om Parkash Head Constable had proved his affidavit Exhibit PK. PW 10 Pritam Singh Constable had proved his affidavit Exhibit PL. PW 11 Raj Pal SI had investigated the case partly. PW 12 Inderjit had proved the photographs of the site. PW 13 Jai Pal is the eye witness who had seen the deceased running away from the shop of the appellant. PW 14 Dr. D.V. Krishna Rao admitted the deceased in PGI on 19th June, 1993 at 12.15 p.m. PW 15 Jagdish Singh is the father of the deceased. PW 16 Rohtash had proved the recovery of chappals and curtain from the shop of the appellant. PW 17 ASI Jogi Ram is the IO of the case.

In his statement, recorded under section 313, Cr.P.C., the appellant inter alia stated as under :

"My shop was near the house of Savita and she had liking for me for the last three or four months. I was not inclined towards her.

"She would come to me and speak to me and would get medicines from me sometimes. I also used to go to her house sometimes. On 16.6.1993, I was working at my shop. Some people were sitting outside under a Neem tree. All of a sudden, there was a noise and I found Savita coming to the shop in burnt condition. She stated that her family members taunted her because of her love for me and that she had set herself on fire. She stated that, being fed up with the taunts etc. she had set herself on fire and that I should also burn myself. The people standing around her sprinkled water upon her and I also joined in extinguishing the fire and helped in carrying her to her home. Baljinder Singh was also there. I remained at my shop and did not run away, while Savita was carried to the hospital. I came to know about 5.00/5.30 p.m. that she had made a statement to the police against me. I came home but was taken away by the police, the same day. I had come home after locking the shop by myself. I was given severe beatings by the police and kept in illegal custody for 12 days. I had no physical contact with Savita whatsoever. The police had obtained the key of my shop with me. Prosecution version is false."

Relying on the prosecution evidence, the learned trial Court convicted and sentenced the appellant as stated herein above.

Mr. Ghai, learned Senior counsel, appearing on behalf of the appellant submitted that there was unexplained delay in recording the FIR. He submitted that the occurrence happened at 12 noon. As per the story of the prosecution, the deceased was taken to the Primary Health Centre at 4.30 p.m. and at 5.30 p.m. his first dying declaration was recorded and thereafter FIR was recorded at 6.15 p.m. He submitted that admittedly, the distance between the place of occurrence and the Police Station is only 2 kms but it is strange that no relation of the deceased had gone to the Police Station to lodge the report and the Police came to the Primary Health Centre only on receipt of a ruqa from the doctor. He further submitted that no explanation has been given by the prosecution as to why the deceased who was burnt at 12 noon could be taken to the Primary Health Centre only at 4.30 p.m. He, therefore, contended that there was every chance of the deceased being tutored by her relation during this period of 41/2 hours.

The learned counsel further submitted that PW 15 Jagdish Singh, father of the deceased has admitted in his examinationinchief that the incident of 12th June, 1993, was narrated to him by his wife Smt. Kela Devi and the incident of 16th June, 1993 was narrated to him by Kanwaljit Singh S/o Bhagirath Singh, Lambardar when he was away to Pehowa. He submitted that neither Kela Devi nor Kanwaljit have been examined by the prosecution and as such the aforesaid statement of PW 15 was not admissible in evidence. He further submitted that PW 13 Jai Pal was only a chance witness and even according to his statement, he had not seen the accused setting the deceased on fire. According to him, he had only seen the accused running bare footed and throwing a match stick on the staircase and later on he found the deceased coming out of the shop of the accused in burning condition. He further submitted that this witness has tried to improve his statement as in his statement recorded before the Police, he had not stated that the accused was seen running barefooted and the relevant portion of Exhibit DA of his statement was duly confronted to him. He further submitted that this witness had stated in his evidence that he had put earth (Miti) on the deceased when she was burning but there is no corroboration from the medical evidence. He also submitted that PW 15 Jagdish Singh, father of the deceased had met Jai Pal first in the village but Jai Pal did not tell these details to Jagdish. He, therefore, contended that the statement of this witness was not free from suspicion and as such could not be relied upon.

With regard to the first dying declaration recorded by PW 17 ASI Jogi Ram in the Primary Health Centre, he submitted that this declaration could not be relied upon as there is no explanation why ASI Jogi Ram did not approach any Magistrate for recording the statement of the deceased nor ASI Jogi Ram has stated that any attempt was made to approach any Magistrate before recording the first dying declaration. He further submitted that this dying declaration is alleged to have been signed by the deceased but pulse and BP of the deceased was not recorded, and PW 1 Dr. Surinder Kumar who initially examined the deceased and attested this dying declaration had stated that there were deep to superficial burns present all over the body of Savita about 90 per cent area sparing face, scalp, palms and dorsal aspect of both hands. He submitted that in such a condition the deceased Savita must have been administered pain killer/tranquillisers and she could not have been fit to give a statement within one hour of her arrival in the Primary Health Centre. With regard to second dying declaration, recorded on 20th June, 1993 at 2.10 a.m. in PGI, Chandigarh, the learned counsel submitted that as per the case of the prosecution, this dying declaration was recorded by Shri P.S. Kalley, Executive Magistrate (PW 2) after Dr. N. Arya had given a certificate that the deceased Savita was fit to make a statement. He submitted that PW 14 Dr. D.V. Krishna Rao of PGI, Chandigarh, in his statement, has stated that Savita aged 17 years was admitted in the PGI, Chandigarh, with diagnosis of 89% deep burns with septicaemia. He submitted that in crossexamination Dr. Rao had stated that as per the record, the patient was examined at 2 p.m. by another doctor and he had given the condition of the patient "critical, in septicaemia, gasping, noncummunicative with thready pulse" and the patient had 90% burns at that time. He submitted that this doctor had also stated that the cause of death was septicaemia III degree burns. He, therefore, contended that in such a condition, it is quite improbable that the deceased Savita was in a fit condition to give any statement. He submitted that even Dr. Arya, who had given the certificate on 20th June, 1993 at 2.10 a.m. that the deceased was in a fit condition to give the statement, was not examined by the prosecution though he was available in the PGI at the relevant time. He also submitted that the second dying declaration was different from earlier one and there was also improvement in the second dying declaration.

Lastly, the learned counsel submitted that Baljinder Singh, who is the brother of the appellant and who according to the prosecution, was present at the shop when the appellant is alleged to have burnt the deceased has not been examined by the prosecution. He submitted that this witness being the eye witness could have narrated the true facts. He further submitted that similarly Kela Devi, mother of the deceased, who had taken her to the hospital and Phool Singh, brother of Jagdish (uncle of the deceased) though cited as a witness were not produced. He, therefore, contended that since the material witnesses have not been examined, it is evident that the genesis of the crime has been suppressed and as such, the appellant was entitled to be given the benefit of doubt. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in Bir Singh v. State of U.P., AIR 1978 SC 59 and a judgment of the Madras High Court reported in Ramaswami v. Muthu and others, 1976 Criminal Law Journal 1504.

Mr. Sanghi, learned Deputy Advocate General, submitted that as per the law laid down by the Hon''ble Supreme Court, conviction can be sustained even on the sole dying declaration of the deceased. He submitted that in the present case, the first dying declaration was recorded by ASI Jogi Ram (PW 17) after PW 1 Dr. Surinder Kumar had given the statement that deceased Savita was in a fit condition to give the statement. He submitted that the fact with regard to the statement (first dying declaration) recorded by PW 17 Jogi Ram has even been admitted by the appellant in his statement recorded under Section 313, Cr.P.C. The learned counsel further submitted that the second dying declaration was recorded in the PGI, Chandigarh, by the Executive Magistrate, Shri P.S. Kalley (PW 2) after Dr. N. Arya had given the certificate that the deceased Savita was in a fit condition to make a statement. He also submitted that both the dying declarations were consistent on all the material points and from these two dying declarations it was clearly proved that the appellant had burnt the deceased by setting her on fire with the match stick. He further submitted that even a patient suffering 100% burns could be fit to make statement in case it was certified by the doctor. In support of his submissions, the learned counsel placed reliance on two judgments of the Supreme Court in the State of Haryana v. Harpal Singh, 1979 SCC (Cri) 86 and Suresh v. State of Madhya Pradesh, AIR 1987 SC 860.

As regards the nonproduction of Dr. Arya by the prosecution, the learned Deputy Advocate General submitted that the certificate given by Dr. Arya has been proved by two witnesses, namely Shri P.S. Kalley, Executive Magistrate (PW 2) and Dr. D.V. Krishna Rao (PW 14) of PGI Chandigarh. With regard to the delay of 41/2 hours in taking the deceased to the hospital, the learned counsel submitted that the father of the deceased was not available at his house at the time of occurrence and the time taken by the mother of the deceased in taking her to the hospital was quite reasonable. In support of this submission, he placed reliance on a judgment of the Supreme Court in Habib Usman v. State of Gujarat, 1979 SCC (Cri) 671.

Lastly, the learned counsel submitted that the case of the appellant was not covered even under exception 5 to Section 300 IPC as the age of the deceased was less than 18 years.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. The conviction in the present case is based on two dying declarations. As stated earlier, the first dying declaration was recorded by ASI Jogi Ram (PW 17) at 6 p.m. in the Primary Health Centre, Jhansa after deceased Savita was declared fit to make a statement by Dr. Surinder Kumar (PW 1). The second dying declaration was recorded in the PGI, Chandigarh, by Shri P.S. Kalley, Executive Magistrate (PW 2) on 20th June, 1993 at 2.10 a.m. after the deceased Savita was declared fit to make a statement by Dr. N. Arya. In the first dying declaration, she stated that 4/5 days prior to 16th June, 1993, appellant Kartar Singh had come to her house and seeing her alone inside the house, he bolted the door from inside and attempted to untie the string of her Salwar but in the meantime her mother knocked the door and he ran away from the other door of the house. Thereafter on 16th June, 1993, he opened his shop and she went there and told him that he had insulted her very badly. Thereupon appellant Kartara asked her to leave the place, failing which he would kill her. Then she went to her house, sprinkled kerosene oil upon her and came back to the shop of Kartar Singh and asked him to kill her. On this appellant Kartar Singh became angry all of a sudden and put a burning match stick on her body, as a result of which her clothes caught fire and started running here and there due to pain.

In the second dying declaration also, deceased Savita stated that on 14th June, 1993, appellant Kartara had come to her house in the absence of her mother and he shut the door. Meanwhile, her mother came from outside and then she opened the door. She further stated that she told her mother that Kartara had done Jabardasti with her. She then stated that after 4/5 days he opened his shop and she went to his shop and asked him to close his shop. Then he told her that she should go home and return after putting kerosene oil on her and then he would set her on fire by a match stick. She further stated that she sprinkled kerosene oil on her body and came to the shop of Kartara. At that time his brother and Premwati were also there. Then he lighted a match stick and set her on fire.

From the evidence of PW 1 Dr. Surinder Kumar, PW 17 Jogi Ram ASI, PW 2 Shri P.S. Kalley, Executive Magistrate, PW 13 Jai Pal, PW 14 Dr. D.V. Krishna Rao, both the dying declarations are proved to have been made by the deceased. The statements made by the deceased relate to the circumstances leading to her death. Both the dying declarations are consistent with each other on all material points and appear to have been made by the deceased voluntarily and in the natural course of events. They contain true facts.

Under Section 32 of the Evidence Act, when a statement is made by a person with regard to the cause of death or with regard to any of the circumstances which result in his/her death, such a statement, oral or in writing, made by the deceased or the witness is a relevant fact and is admissible in evidence. The statement made by the deceased called the dying declaration falls in that category provided it has been made by the deceased while in a fit mental condition.

In this connection, reference may be made to a judgment of the Supreme Court in Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, JT 1993(2) SC 559. Relevant portion from this judgment is reproduced herein below :

"... A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes of circumstances leading to his death. 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 courts, it becomes a very important and 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.

If there are more than one dying declarations, then the Court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same."

In the above case, the Hon''ble Supreme Court held that the dying declaration can by itself be sufficient for recording the conviction without looking for corroboration if the same was true and free from embellishment. Having read the statements of PW 1, PW 2, PW 13, PW 14 and PW 17, with great care, we are of the view that their testimony is based on intrinsic truth. Both the dying declarations are consistent with each other on all the material points and particulars. It is also proved that the deceased was in proper mental condition to make the declaration. Both the dying declarations have passed the test of creditworthiness and they suffer from no infirmity whatsoever. We have, therefore, no hesitation to hold that the prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had made voluntarily the declarations implicating the appellant and disclosing the manner in which she had been put on fire on 16th June, 1993 at 12 noon.

The contention of the learned counsel for the appellant that since the deceased was suffering from 89/90 per cent Second Degree and Third Degree burns, she was not in a fit mental condition to give the statement, is without any substance. In this connection, reference may be made to a judgment of the Supreme Court in Suresh v. State of Madhya Pradesh, 1987 SC 860. In that case, as per the postmortem report, the victim had died on account of 100% burns of Second Degree. It was contended on behalf of the appellant that the dying declaration recorded by the doctor should not be relied upon as at the time when the dying declaration was said to have been recorded, the deceased was sinking and was unable to make any statement. Rejecting this argument, the Hon''ble Supreme Court held that according to the doctor, the deceased was in a fit state of health to make a declaration and in terms of the evidence of the doctor, the deceased was capable of deposing and was in her senses. The conviction of the appellant in that case was accordingly upheld. In this case also, the deceased was declared fit to make the statement by PW 1 Dr. Surinder Kumar when her First Dying Declaration was recorded by PW 17 ASI Jogi Ram on 16th June, 1993. Again she was declared fit to make the statement by Dr. N. Arya of PGI Chandigarh when her second Dying Declaration was recorded by PW 2 Shri P.S. Kalley, Executive Magistrate on 20th June, 1993.

We also do not find any merit in the contention of the learned counsel for the appellant that the second dying declaration recorded by PW 2 Shri P.S. Kalley, Executive Magistrate on 20th June, 1993 at 2.10 a.m. should not be relied upon as the prosecution has failed to examine Dr. N. Arya who had given the certificate that the deceased was fit to give a statement. It is true that Dr. N. Arya has not been examined in this case but the certificate given by Dr. Arya has been fully proved by PW 14 Dr. D.V. Krishna Rao and there is no crossexamination on this point that the certificate given by Dr. N. Arya was not genuine. Further this dying declaration has been proved by PW 2 Shri P.S. Kalley, Executive Magistrate, who has appeared as a witness.

Since from the evidence on record, we have come to the conclusion that both the dying declarations have passed the test of creditworthiness and they suffer from no infirmity, we do not find any force in the contention of the learned counsel for the appellant that the genesis of the crime has been suppressed because the prosecution has not examined Baljinder Singh, brother of the appellant, Smt. Kela Devi mother of the deceased and Kanwaljit, who had narrated the incident to Jagdish (Pw 15). We fail to understand as to why PW 6 Naresh Kumar S.I. got the medicolegal examination of Baljinder Singh on 6th July, 1993 i.e. 20 days after the occurrence. The conduct of this witness does not appear to be above board.

We also do not find any substance in the contention of the learned counsel for the appellant that the delay of 4 hours in taking the deceased to the hospital has not been explained. It has been proved on the record that the father of the deceased was not in the village at the time of the occurrence and that the deceased was taken to the Primary Health Centre by her mother and as such time taken in taking the deceased to the hospital is reasonable.

We also agree with the contention of the learned Deputy Advocate General that the case of the appellant is not even covered under Exception 5 to Section 300, IPC as the age of the deceased in both the dying declarations has been given as 17 years. Even in the inquest report, the age of the deceased has been mentioned as 17 years.

For the reasons recorded herein above, we uphold the conviction and sentence of the appellant for offences under Sections 302 and 354, Indian Penal Code and dismiss his appeal.