Suresh Kumar vs State of Punjab

Sabina, J.—The appellant was convicted for an offence u/s 304-B of the Indian Penal Code ("IPC"- for short) vide judgment dated 14.7.2007 by the Additional Sessions Judge, Jalandhar. Vide order dated 17.7.2007, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years. Hence, the present appeal.

Prosecution case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, is reproduced herein below:

The crux of the allegations of deceased made by her at the time of recording of her statement by the learned Magistrate were that she was married to accused Suresh Kumar who was addicted to liquor and in drunken state used to often beat her and throw her out of her home. She further stated that on the day of occurrence she along with her children were present in their room on the upper storey of the house when her husband accused Suresh Kumar took the children down stairs and thereafter on his return to her room sprinkled kerosene oil and set her on fire. The cause of this occurrence as stated by Sonia was that her husband used to compel her after the death of her father to bring Rs. 1,00,000/- which was paid as compensation so that he is able to built a house and on her refusal the ugly episode was enacted. She has stated that her mother in law never interference though her father in law had a role in this fight. Accused Suresh Kumar was formally arrested in this case on 27.2.2006 and during the course of interrogation on 28.2.2006 by the investigating officer, the accused suffered a disclosure statement that he has kept concealed the match box as well as bottle of kerosene oil disclosed place and got the articles recovered which were taken into police possession through memo attested by the witnesses regarding which recovery rough site plan was also prepared. The statements of witnesses were recorded.

On the event of death of Sonia on 18.3.2006 ASI Kapoor Singh went to Civil Hospital, Jalandhar and prepared inquest proceedings, recorded the statements of the witnesses u/s 175 Cr.P.C. and made written request for post mortem of the dead body and after necessary formalities by the doctor, the dead body was handed over to her relations. During the course of investigation, the clothes of the dead body were also taken into police possession through a separate memo. Scaled site plan of the place of occurrence was also prepared, the medical record was also taken into police possession and co-accsued Roshal Lal was arrested on 18.3.2006. After necessary formalities and on completion of the investigation the challan was presented before the court of Magistrate and then court of Mrs. Paramjit Kaur, Judicial Magistrate 1st Class, Jalandhar. Through commitment order dated 29.4.2006 committed the case to the court of Sessions which was put up before my learned Predecessor on 13.5.2006.

It is yet another case where a young lady has died an unnatural death due to burn injuries at the hands of her husband within seven years of her marriage. Deceased has left behind her two minor children.

Learned Counsel for the appellant has submitted that the trial Court had erred in convicting the appellant of the charge framed against him. Prosecution had miserably failed to prove its case. No reliance could be placed on the dying declaration of the deceased as the same had not been made voluntarily but was a tutored version. In support of his arguments, learned Counsel has placed reliance on Mohan Lal and Ors. v. State of Haryana (SC) 2007 (2) RCR (Criminal) 88, wherein, in para No. 10, it was held as under:

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben Vs. State of Gujarat, :

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja and Another Vs. The State of Madhya Pradesh, ]

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, and Ramawati Devi Vs. State of Bihar, ]

(iii) The Court has no scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Another Vs. The Public Prosecutor, ]

(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg and Others Vs. State of Madhya Pradesh, ]

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [See Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh, ]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Others Vs. State of Uttar Pradesh, ]

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra Vs. Krishnamurti Laxmipati Naidu, ]

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Ojha and Others Vs. State of Bihar, ]

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanhau Ram and Another Vs. State of Madhya Pradesh, ].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. Vs. Madan Mohan and Others, ].

(xi) Where there is 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 declarations could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani Vs. State of Maharashtra, .

Learned State counsel, on the other hand, has submitted that the deceased had died an un-natural death within seven years of her marriage and the dying declaration made by the deceased before the Magistrate was liable to be believed.

In the present case, deceased Sonia was married to the appellant in the year 2002. Sonia died an un-natural death in the night intervening 17/18th March, 2006. The material document in the present case is the dying declaration suffered by the deceased before the Judicial Magistrate (Ex.PD/3). The Judicial Magistrate recorded the statement of the deceased after she was declared physically and mentally fit to make the statement by the doctor on 25.2.2006 at about 5.45 p.m. The deceased stated before the Magistrate, in reply to the question as to how she had suffered the injuries that her husband had taken liquor and had been quarrelling with her. At that time she was sitting with her children in the room on the first floor. He sent the children downstairs and thereafter, threw kerosene oil on her and set her on fire. He had been harassing her for the last four years. In reply to the question as to why she was being harassed, the deceased replied that the appellant had asked the father of the deceased to give him Rs. 10,000/- but her father had not given him the said money as he apprehended that her husband would waste the same by drinking liquor. After the death of her father, the appellant demanded Rs. 1,00,000/- from her mother for construction of his house.

The deceased was admitted in the hospital on 25.2.2006 with 70% burn injuries. She died on 18.3.2006 at 2.10 a.m. Thus, the deceased had died an un-natural death within seven years of her marriage. As per the opinion given by the doctor in the postmortem report, the cause of death in this case was Neurogenic Shock with Septecaemia and hypoproteinemia due to burn injuries, which were sufficient to cause death in the ordinary course of nature. The injuries were anti mortem in nature. The dying declaration suffered by the deceased before the Judicial Magistrate inspires confidence. There is no reason to disbelieve the dying declaration suffered by the deceased before the Judicial Magistrate. The deceased has left behind two children. She would not have falsely involved the appellant in this case, had the appellant not set her on fire. The deceased had died on 18.3.2006 although she had suffered the statement on 25.2.2006. The deceased did not change her stand during the said period. This also makes the dying declaration suffered by the deceased more trustworthy. Learned trial Court had rightly believed the dying declaration suffered by the deceased while convicting the appellant for an offence u/s 304-B IPC. The judgment relied upon by the learned Counsel for the appellant fails to advance the case of the appellant as in the present case the dying declaration suffered by the deceased can be safely relied upon without any corroboration. No ground for interference is made out.

Accordingly, this appeal is dismissed.