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Gurtej Singh And Others vs State Of Punjab on 20 March, 2019

CRA-D No. 779-DB of 2013 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D No. 779-DB of 2013 (OM)
Reserved on : 15.3.2019
Date of decision : 20.3.2019

Gurtej Singh and others …. Appellants

versus

State of Punjab … Respondent

Coram: Hon’ble Mr. Justice Rajiv Sharma
Hon’ble Mr. Justice Anil Kshetarpal

Present Mr. P. S. Hundal, Senior Advocate with
Mr. Premjit Singh Hundal, Advocate, for the appellants.
Mr. S. P. S. Tinna, Additional Advocate General, Punjab.

Rajiv Sharma, J.

1. The present appeal has been filed by appellants Gurtej Singh,

Jeet Singh and Surjit Kaur, against the judgment and order dated 29.4.2013,

passed by learned Additional Sessions Judge, SAS Nagar (Mohali) in

Sessions Case No. 49 dated 3.9.2010. They were charged with and tried for

the offence punishable under Section 302 read with Section 34 IPC. They

were convicted and sentenced under Section 302 IPC to undergo life

imprisonment and to pay fine of ` 7,000/- each and in default of payment of

fine, to undergo further simple imprisonment for a period of six months.

2. The case of the prosecution in a nutshell is that on 2.5.2010,

complainant Gurdial Singh (PW3) made a statement before ASI Jagroop

Singh (PW8) to the effect that his daughters Kuldeep Kaur and Kamaljit

Kaur were married to Gurdhian Singh and Gurtej Singh (appellant no.1)

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both sons of Jeet Singh (appellant no.2). They were residing together. His

daughter Kamaljit Kaur was issueless. Due to this, her husband Gurtej

Singh, mother-in-law Surjit Kaur and father-in-law Jeet Singh used to taunt

her. On the intervening night of 26/27.4.2010, she was given beatings by

her husband and parents-in-law. Accused Surjit Kaur caught hold of her

from her arms and accused Jeet Singh slapped her, whereas her husband

Gurtej Singh set her clothes on fire, due to which, she suffered severe burn

injuries. She was admitted in hospital and during her treatment she was

being threatened by her-in-laws that she will be killed if she reported the

matter to the police against them. However, when the complainant met her

alone, she narrated the entire story to him. On 3.5.2010, statement of

Kamaljit Kaur was recorded by the Duty Magistrate at Government Medical

College and Hospital, Sector-32, Chandigarh. She died on 4.5.2010.

Thereafter, FIR was registered. The post-mortem examination was

conducted. The investigation was completed and challan was put up after

completion of all the cordal formalities.

3. The prosecution examined 8 witnesses in support of its case.

The statements of the accused were also recorded under Section 313 Cr.P.C.

According to them, the deceased had accidentally caught fire from gas

stove. They also examined witnesses in defence. They were convicted and

sentenced, as noticed hereinabove. Hence, the present appeal.

4. Learned counsel appearing on behalf of the appellants

vehemently argued that the prosecution has failed to prove its case. Learned

counsel appearing for the State vehemently argued that the prosecution has

proved its case beyond reasonable doubt and supported the judgment and

order of the learned Court below.

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5. We have heard learned counsel for the parties and gone through

the judgment and record very carefully.

6. PW1 Dr. Amandeep Singh conducted the post-mortem

examination on the dead-body of Kamaljit Kaur. He noticed the following

injuries on the body of the deceased:-

1. Epidermal to dermo-epidermal infected burns
present all over the body except head, upper half of
the face, side and back of neck, part of front of
chest, right (front of) shoulder and outer aspect of
right upper arm, back of chest, part of back of
abdomen, part of both palms and right sole of foot.
Singeing of body hair present. Yellowish green
foul smelling pus was present on burnt areas.
Superficial slough separation was seen at places on
burnt areas.

2. All the internal organs were congested. The
stomach containing 10 cc of bluish liquid and
walls NAD.”

The cause of death was septicaemic shock. Burnt area was about 75%. The

probable time that elapsed between injuries and death was 1-2 weeks and

between death and post-mortem examination was 12-24 hours. PW1 Dr.

Amandeep Singh proved post-mortem report, Ex.PA.

7. PW2 Dr. Mukesh Goel deposed that Kamaljit Kaur was

admitted in Government Medical College and Hospital, Sector-32,

Chandigarh, due to burn injuries. He declared her dead at about 12.15 P.M.

vide report, Ex.PW2/A.

8. PW3 Gurdial Singh is father of deceased Kamaljit Kaur. He

deposed that his daughter Kamaljit Kaur was married to appellant Gurtej

Singh about two years prior to her death. She was issueless. On the

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intervening night of 26/27.4.2010, all the three accused had beaten her.

Appellants Surjit Kaur and Jeet Singh had beaten her up and thereafter Jeet

Singh had caught hold of her, whereas appellant Gurtej Singh had set her on

fire. After that maternal uncle of deceased Ranjit Singh, who happened to be

present in the house, extinguished the fire and removed Kamaljit Kaur to the

hospital at Dera Bassi. She was referred to GMCH, Sector-32, Chandigarh.

When he came to know about the incident, he also reached there, where

appellant Surjit Kaur met him. She told that only hands and feet of Kamaljit

Kaur had suffered burn injuries. Then he came back. On 2.5.2010, he came

to know from PW4 Ranjit Singh that his daughter Kamaljit Kaur had

suffered severe burn injuries. He again went to the hospital and met his

daughter, who told him the true story of her burns. She told that the accused

were taunting her and had also beaten her and set her on fire, as she was not

bearing any child. She had told him that she had also made a statement to

the police which she had given under threat exerted at her by her husband

Gurtej Singh on the pretext that in case she made any statement to the police

then she would be eliminated. She further told him that under threat of

Gurtej Singh she made the statement to the police that her husband was

truck driver and had asked her to prepare tea for him and in that process

from a candle she caught fire in her clothes and suffered burn injuries. She

had given the statement, Ex. PW8/A, under threat. His daughter died on

4.5.2010. He identified her dead body. In his cross examination, he admitted

that he had not made any complaint to any authority with regard to the

harassing of her daughter. He met his daughter firstly on 27.4.2010 at about

10/11 AM in the hospital.

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9. PW4 Ranjit Singh testified that his nieces Kuldeep Kaur and

Kamaljit Kaur were married to Gurdhian Singh and Gurtej Singh,

respectively. On 26.4.2010, he received a phone call from Kamaljit Kaur

that she was being beaten by her husband, mother-in-law and father-in-law.

He went there and advised them to behave properly. He stayed there. He

slept there on the roof of the house. At about 12 midnight, he heard the

voice of Kamaljit Kaur, ‘mainu bachao, mainu bachao’. Then he came down

stairs and found Kamaljit Kaur lying on the ground. Accused Surjit Kaur,

Jeet Singh and Gurtej Singh were standing nearby her. She was unconscious

at that time. Kamaljit Kaur had suffered severe burn injuries on her body.

She told him that her mother-in-law Surjit Kaur had beaten her, her father-

in-law had caught hold of her and her husband had burnt her. In his cross-

examination he deposed that at that time accused Gurtej Singh was with

him. The deceased was lying on the floor with burn injuries when he

reached there. She was unconscious at that time. She regained

consciousness after about 10-15 minutes.

10. PW7 Ranjeev Kumar, deposed that on 3.5.2010 he was posted

as Judicial Magistrate 1st Class at Chandigarh. On that day he was the Duty

Magistrate. He received directions from the learned CJM, Chandigarh to

visit GMCH, Sector-32, Chandigarh, to record the statement of Kamaljit

Kaur, aged about 22 years, who was admitted due to burn injuries. He

consulted the Duty Doctor about the fitness of the injured. Vide

endorsement, Ex. PW7/A, the duty doctor, Dr. Vaneet vide his endorsement,

Ex. PW7/B, declared the patient conscious and fit to make statement. The

said endorsement was done by the doctor in his presence. Thereafter, he

recorded the statement of Kamaljit Kaur word by word as narrated to him by

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her without any addition or alteration. The said statement is Ex. PW7/C.

The statement was read over to the patient and the same was admitted to be

correct by her. The patient put her thumb mark on it. The patient remained

fit and conscious throughout the period her statement was recorded. A

certificate to this effect was issued by Dr. Vaneet is Ex. PW7/D. He made

his endorsement Ex. PW7/E. The statement was sealed in a parcel with his

seal and thereafter it was sent to the learned CJM, Chandigarh. In his cross-

examination he categorically deposed that only doctor was present at the

time of recording of statement, besides injured and he himself.

11. PW8 ASI Jagroop Singh deposed that on 28.4.2010 he received

one ruqa from GMCH, Sector-32, Chandigarh. He went to the hospital. He

moved an application, Ex. PW6/A, to inquire about the fitness of the injured

Kamaljit Kaur to make statement. The duty doctor declared her fit to make

statement. Thereafter, he recorded the statement of Kamaljit Kaur vide Ex.

PW8/A, which was read over to her. She had not leveled any allegation

against anybody. On 2.5.2010, Gurdial Singh father of Kamaljit Kaur got

recorded his statement, Ex.PW3/A. He went to the spot and prepared rough

site plan, Ex. PW8/E. Kamaljit Kaur died on 4.5.2010. He prepared inquest

report Ex. PC. All the accused were arrested on 5.6.2010.

12. The accused have also examined witnesses in their defence.

DW1 Sukhwinder Singh deposed that entry no. 7154 was made pertaining

to immersion of mortal remains of Mrs. Kamaljit Kaur wife of Gurtej Singh

on 7.5.2010. In his cross-examination, he admitted that the immersion of

mortal remains was not done in his presence.

13. DW2 Dr. Sanjeev Gupta, Shree Ram Hospital, Dera Bassi,

deposed that in the intervening night of 26/27.4.2010 at about 11.30 P.M. to

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12.00 midnight, one lady was brought to her clinic. She was in burnt

condition. She was brought in a car. He examined her in the car and had

referred her to GMCH, Sector-32, Chandigarh. He has admitted in his cross-

examination that he had not maintained any writing in this regard.

14. Swaran Singh appeared as DW3. He deposed that the cremation

of Kamaljit Kaur was performed in village Kakrali.

15. DW4 Gurdhian Singh deposed that sister of deceased Kamaljit

Kaur, Kuldeep Kaur is married to him. Accused Gurtej Singh is his real

brother. On on the day of occurrence, he was present in the house. When

they reached at the place of occurrence, Kamaljit Kaur was burning. They

put the blanket on her to extinguish the fire. Thereafter, she was taken to

Hospital at Dera Bassi from where she was referred to GMCH, Sector-32,

Chandigarh. In his cross-examination, he admitted that when he reached at

the place of occurrence, Kamaljit Kaur was already burning and her

husband and other family members were also present there.

16. As per the prosecution case, Kamaljit Kaur was admitted in the

Hospital at Chandigarh with burn injuries. She succumbed to the injuries on

4.5.2010. In her dying declaration, she levelled allegations against her

husband, mother-in-law and father-in-law. In his deposition, PW4 Ranjit

Singh has categorically deposed that on 26.4.2010, he received a telephonic

call from Kamaljit Kaur that she was being beaten by her husband, mother-

in-law and father-in-law. He went there at about 7.00 P.M. He stayed there.

At about 12 midnight, he heard the cries of her niece Kamaljit Kaur, ‘mainu

bachao, mainu bachao’. He came down and found Kamaljit Kaur lying on

the ground. The accused were standing nearby her. She was unconscious at

that time. She had suffered severe burn injuries. She told him the manner in

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which she was being beaten by the accused and set on fire.

17. Father of the deceased, Gurdial Singh appeared as PW3. He

categorically deposed that his daughter Kamaljit Kaur was beaten by the

accused. He deposed that when he came to know about the incident, he went

to the hospital, where appellant Surjit Kaur met him, who told him that only

hands and feet of Kamaljit Kaur had suffered burn injuries. Thereafter, he

came to know from PW4 Ranjit Singh that his daughter Kamaljit Kaur had

suffered severe burn injuries. He met his daughter, who told him the manner

in which she was beaten and set her on fire. She also told that earlier

statement was given under threat exerted on her by her husband Gurtej

Singh.

18. Learned counsel appearing for the appellants placed strong

reliance upon statement, Ex.PW8/A. In this statement, she deposed that she

was married to accused Gurtej Singh. Her husband was truck driver. On the

day of incident, he had asked her to prepare tea for him and in that process

from a candle she caught fire and suffered burn injuries. Her husband Gurtej

Singh, brother-in-law Gurdhian Singh and sister-in-law Kuldip Kaur,

extinguished the fire by putting the blanket on her. She was taken to Civil

Hospital, Dera Bassi for treatment. Thereafter she was referred to

Chandigarh. This statement was recorded by PW8 ASI Jagroop Singh.

Further it has come in the statement of PW3 Gurdial Singh that she had told

him that she had given the statement, Ex. PW8/A, under threat exerted by

her husband Gurtej Singh. This statement was recorded on 28.4.2010.

Thereafter, her statement was recorded by PW7 Ranjeev Kumar, Judicial

Magistrate 1st Class at Chandigarh on 3.5.2010. He deposed that he

recorded the statement of Kamaljit Kaur, who was admitted in the hospital

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due to burn injuries. He consulted the duty doctor about her fitness. The

doctor declared her conscious and fit to make statement. The said

endorsement was done by the doctor in his presence. Thereafter, he recorded

the statement of Kamaljit Kaur (Ex. PW7/C) word by word as narrated to

him by her without any addition or alteration. The same was read over to

her, which was admitted to be correct by her. She put her thumb impression

on that. She remained fit and conscious throughout the period her statement

was recorded. A certificate (Ex. PW7/D) to this effect was issued by Dr.

Vaneet. PW7 Ranjeev Kumar also made his endorsement, Ex. PW7/E, on it.

The deceased has categorically stated that she made the statement with her

own consent. She deposed that on the day of occurrence at 12.30 A. M., her

husband had beaten her on the pretext that she could not bear a baby. Her

mother-in-law dragged her from her hairs and slapped her and dragged her

inside the room by pulling her hairs. Her husband poured kerosene oil on

her. After igniting match stick, he set her on fire. She became unconscious.

19. The statement (Ex. PW7/C) had been recorded in accordance

with law. It was voluntarily in nature. PW7 Ranjeev Kumar, who is Judicial

Magistrate, has categorically deposed that he recorded the statement of

Kamaljit Kaur word by word as narrated by her without any addition or

alteration. In his cross-examination, he stated that only doctor was present at

the time of recording of statement, besides injured and him. The statement

was sealed in a parcel with seal and thereafter it was sent to the learned

CJM, Chandigarh. The statement, thus, cannot be doubted. The earlier

statement made by her was due to threat and pressure.

20. Their Lordships of Hon’ble the Supreme Court in SectionRam Chander

and others vs State of Punjab 1998 (9) Supreme Court Cases 303, have held

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that when first dying declaration was recorded by ASI wherein deceased

alleged to have caught fire accidentally and second dying declaration was

recorded by the Magistrate, which was free from any infirmities; and the

third oral dying declaration made to her brother by the deceased, the oral

and the one recorded by the Magistrate can be relied upon. Their Lordships

have held as under:-

“6. After giving our anxious consideration to the
facts and circumstances of the case and the evidences
adduced and also after taking into consideration the two
recorded dying declarations, namely, the first one
recorded by the ASI and the second one recorded by the
Executive Magistrate and also after taking into
consideration the oral dying declaration said to have been
made by the deceased to PW 4, Prem Chand, it appears to
us that the first dying declaration which was recorded by
the ASI cannot be accepted. The deposition of PW 4
Prem Chand appears to be reliable and his deposition
also gets support from the post-mortem report. Prem
Chand has deposed that his sister stated to him that
previously in the hospital under threat her signature was
taken on a paper by the police and she had not made any
such statement. PW 4 also deposed that in the previous
evening the mother-in-law hit the deceased on the head
with the rolling pin. From the post-mortem report it
transpires that a lacerated injury was found in the parietal
region. Such injury on the head fits in with the case of
hitting the deceased with a rolling pin (belna) as alleged
by the deceased. We have carefully looked into the dying
declaration recorded by the Executive Magistrate and it
appears to us that there is no occasion to hold that such
dying declaration was not taken properly by the
Executive Magistrate. Correction made in the first leaf in

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respect of Question No. 7 and the answer given to such
question is only in respect of describing whether it was
the question or the answer. The statements given by the
deceased have been recorded without any overwriting or
without any interpolation. Initials have been put by the
Executive Magistrate at the bottom of the first leaf and
only a part of the signature has touched some writing in
respect of Question No. 8 for which no doubt can be
entertained about the correctness of recording. So far as
the flow of writing is concerned, it also appears that all
the questions and answers have been recorded in the
same flow. We have also looked at the reverse side of the
page and considering the same it does not appear to us
that there is any occasion to doubt that such writing was
subsequently made by the Executive Magistrate. The
Executive Magistrate has also deposed in the case and he
has specifically deposed that he recorded the dying
declaration in question and answer form. He has denied
the suggestion in the cross-examination that there was
any antedating or fabrication on his part in recording the
dying declaration. The Executive Magistrate is a
disinterested witness and is a responsible officer. There is
no circumstance or any material on record to suspect that
he had any animus against the accused or was in any way
interested in fabricating the dying declaration. The dying
declaration recorded by him tallies substantially with the
dying declaration said to have been made orally to the
brother Prem Chand PW 4. Simply because the offence
under Sections 498A and Section304B Indian Penal Code could
not be established beyond doubt by the prosecution for
which the accused were acquitted of the said charges, it
cannot be held that the accused had no motive for
committing the said murder. Although the dying
declaration recorded by the Executive Magistrate was

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sent to the Investigating Officer after about a fortnight,
we do not think that for such delay, genuineness of the
said dying declaration recorded by the Executive
Magistrate is to be doubted. There is an entry in the
despatch register by which the said statement was sent to
the DSP (H) Ludhiana by the Head Constable of the
police post. Mr Roy has contended that the doctor who
countersigned the first dying declaration recorded by the
ASI has not been examined by the prosecution. In our
view, for not examining the doctor, the dying declaration
recorded by the Executive Magistrate and the dying
declaration orally made to Prem Chand, PW 4, need not
be doubted. Moreover, it was open to the accused to
examine the doctor alleged to have countersigned the
dying declaration recorded by the ASI if the accused had
intended to rely on such dying declaration.”

21. Their Lordships of Hon’ble the Supreme Court in SectionHarjit Kaur

vs State of Punjab 1999 (6) Supreme Court Cases 545, have held that dying

declaration recorded by police wherein the deceased stated that she caught

fire by accident and second dying declaration recorded by SDM wherein she

stated that her husband and his parents set her on fire, second dying

declaration can be believed, which appeared voluntary and true. Their

Lordships have held as under:-

“6. It was further submitted by the learned counsel that
the statement of Parminder Kaur was not recorded by the
witness in question and answer form. The evidence of the
witness is that she narrated the incident and therefore the
Dying Declaration is not in the question-answer form. It
was then contended by the learned counsel that the Dying
Declaration bears her thumb mark but according to the
medical evidence, the skin over the two thumbs was
burnt and, therefore, the S.D.M. could not have obtained

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her thumb impression on it. Whatever impression could
be taken was taken by the S.D.M. The medical evidence
in this case does not disclose that she could not have put
her thumb mark on the Dying Declaration. We fail to
appreciate how this circumstance can create any doubt
regarding the evidence of this witness or genuineness of
the Dying Declaration. P.W. 7 was an independent
witness and was holding a high position and had no
reason to do anything which was not proper or correct.
Except a bare suggestion made to him that the Dying
Declaration was manufactured by him after her death, we
do not find anything in his cross-examination as would
create any doubt regarding truthfulness of what this
witness has deposed. We fully agree with the finding
recorded by the courts below that the Dying Declaration
was voluntarily made by Parminder Kaur and that it was
correctly recorded by P.W.-7.

7. It was then contended by the learned counsel that
this Dying Declaration should not be accepted as true
because in her first Dying Declaration made to the Police
officer on 30.4.92, Parminder Kaur has stated that she
had received burns as a result of an accident and that no
one else was responsible for the time. Both the courts
below after considering this inconsistency have though it
fit to rely upon the second Dying Declaration. It has been
rightly held as an attempt on her part to save her husband
and the in-laws. The circumstance clearly indicate that
she was not a free person then. The reasons given by the
trial Court and the High Court for not considering the
first Dying Declaration as voluntary and true are quite
convincing and we see no reason to differ from them.
Therefore, the second Dying Declaration cannot be
regarded as untrue merely because it is contrary to her
statement made earlier. What she has stated in the second

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Dying Declaration, appears to be more probable and
natural. If she had really received injuries at 2.00 a.m.,
because of bursting of stove then her in-laws would have
taken her to the hospital immediately and would not have
waited till 7.30 a.m.. They would have informed the
parents of Parminder Kaur as early as possible. They
were not informed for two days in which hospital their
daughter was admitted. All the circumstances indicate
that the first Dying Declaration made before the Police
Officer was not a correct one. As we find that the
appellants have been rightly convicted, both these
appeals are dismissed.”

22. Their Lordships of Hon’ble the Supreme Court in SectionLaxman vs

State of Maharashtra 2002 (6) SCC 710, summed up the law in regard to

dying declaration as under:-

“3. The juristic theory regarding acceptability of a
dying declaration is that such declaration is made in
extremity, when the party is at the point of death and
when every hope of this world is gone, when every
motive to falsehood is silenced, and the man is induced
by the most powerful consideration to speak only the
truth. Notwithstanding the same, great caution must be
exercised in considering the weight to be given to this
species of evidence on account of the existence of many
circumstances which may affect their truth. The situation
in which a man is on death bed is so solemn and serene,
is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of oath
and cross-examination are dispensed with. Since the
accused has no power of cross-examination, the court
insist that the dying declaration should be of such a
nature as to inspire full confidence of the court in its
truthfulness and correctness. The court, however has to

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always be on guard to see that the statement of the
deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also
must further decide that the deceased was in a fit state of
mind and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental condition
to make the dying declaration look up to the medical
opinion. But where the eyewitnesses state that the
deceased was in a fit and conscious state to make the
declaration, the medical opinion will not prevail, nor can
it be said that since there is no certification of the doctor
as to the fitness of the mind of the declarant, the dying
declaration is not acceptable. A dying declaration can be
oral or in writing and in any adequate method of
communication whether by words or by signs or
otherwise will suffice provided the indication is positive
and definite. In most cases, however, such statements are
made orally before death ensues and is reduced to writing
by someone like a magistrate or a doctor or a police
officer. When it is recorded, no oath is necessary nor is
the presence of a magistrate is absolutely necessary,
although to assure authenticity it is usual to call a
magistrate, if available for recording the statement of a
man about to die. There is no requirement of law that a
dying declaration must necessarily be made to a
magistrate and when such statement is recorded by a
magistrate there is no specified statutory form for such
recording. Consequently, what evidential value or weight
has to be attached to such statement necessarily depends
on the facts and circumstances of each particular case.

What is essentially required is that the person who
records a dying declaration must be satisfied that the
deceased was in a fit state of mind. Where it is proved by

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the testimony of the magistrate that the declarant was fit
to make the statement even without examination by the
doctor the declaration can be acted upon provided the
court ultimately holds the same to be voluntary and
truthful. A certification by the doctor is essentially a rule
of caution and therefore the voluntary and truthful nature
of the declaration can be established otherwise.

4. Bearing in mind the aforesaid principle, let us now
examine the two decisions of the court which persuaded
the bench to make the reference to the Constitution
Bench. SectionIn Paparambaka Rosamma Ors. vs. State of
Andhra Pradesh 1999 (7) SCC 695 the dying declaration
in question had been recorded by a judicial magistrate
and the magistrate had made a note that on the basis of
answers elicited from the declarant to the questions put
he was satisfied that the deceased is in a fit disposing
state of mind to make a declaration. Doctor had
appended a certificate to the effect that the patient was
conscious while recording the statement, yet the court
came to the conclusion that it would not be safe to accept
the dying declaration as true and genuine and was made
when the injured was in a fit state of mind since the
certificate of the doctor was only to the effect that the
patient is conscious while recording the statement. Apart
form the aforesaid conclusion in law the court also had
found serious lacunae and ultimately did not accept the
dying declaration recorded by the magistrate. In the latter
decision of this court in SectionKoli Chunilal Savji Another
vs. State of Gujarat 1999 (9) SCC 562, it was held that
the ultimate test is whether the dying declaration can be
held to be a truthful one and voluntarily given. It was
further held that before recording the declaration the
officer concerned must find that the declarant was in a fit
condition to make the statement in question. The court

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relied upon the earlier decision. SectionIn Ravi Chander vs.
State of Punjab 1998 (9) SCC 303 wherein it had been
observed that for not examining by the doctor the dying
declaration recorded by the executive magistrate and the
dying declaration orally made need not be doubted. The
magistrate being a disinterested witness and is a
responsible officer and there being no circumstances or
material to suspect that the magistrate had any animus
against the accused or was in any way interested for
fabricating a dying declaration, question of doubt on the
declaration, recorded by the magistrate does not arise.

5. The court also in the aforesaid case relied upon the
decision of this court in Harjeet Kaur VS. State of Punjab
1999(6) SCC 545 case wherein the magistrate in his
evidence had stated that he had ascertained from the
doctor whether she was in a fit condition to make a
statement and obtained an endorsement to that effect and
merely because an endorsement was made not on the
declaration but on the application would not render the
dying declaration suspicious in any manner. For the
reasons already indicated earlier, we have no hesitation
in coming to the conclusion that the observations of this
court in SectionPaparambaka Rosamma Ors. vs. State of
Andhra Pradesh 1999 (7) SCC 695 to the effect that “in
the absence of a medical certification that the injured was
in a fit state of mind at the time of making the
declaration, it would be very much risky to accept the
subjective satisfaction of a magistrate who opined that
the injured was in a fit state of mind at the time of
making a declaration” has been too broadly stated and is
not the correct enunciation of law. It is indeed a hyper-
technical view that the certification of the doctor was to
the effect that the patient is conscious and there was no
certification that the patient was in a fit state of mind

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specially when the magistrate categorically stated in his
evidence indicating the questions he had put to the
patient and from the answers elicited was satisfied that
the patient was in a fit state of mind where-after he
recorded the dying declaration. Therefore, the judgment
of this court in SectionPaparambaka Rosamma Ors. vs. State
of Andhra Pradesh 1999 (7) SCC 695 must be held to be
not correctly decided and we affirm the law laid down by
this court in SectionKoli Chunilal Savji Another vs. State of
Gujarat 1999 (9) SCC 562 case.”

23. Their Lordships of Hon’ble the Supreme Court in SectionSayarabano

@ Sultanabegum vs State of Maharashtra 2007 (12) SCC 562, have held

that the earlier statement was made by the deceased stating that she hit a

burning kerosene oil lamp by accident and caught fire. This declaration was

made when she was surrounded by her family members. Second declaration

was made on the next day when her family members had come. She stated

that her mother-in-law poured kerosene oil and set her on fire. The accused

was convicted on the basis of second dying declaration alone, even though

it was inconsistent to earlier dying declaration. Relevant paragraphs

therefrom are extracted below:-

“12. The learned counsel for the appellant contended
that both the Courts have committed an error of law in
relying upon the second dying declaration. It was
contended that the first dying declaration was correct and
the deceased had stated true facts in the said declaration.

It was also stated that after parents of the deceased had
come to the hospital, they had persuaded the deceased to
involve and implicate the appellant and that is how the
second dying declaration was recorded which could not
have been relied upon. It was also submitted that no

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motive was established by the prosecution inasmuch as
only thing stated by the deceased in her dying declaration
was that she had got up late in the morning and could not
go for Namaz. For such a trivial matter, no person would
kill another person. It was, therefore, submitted that the
appeal deserves to be allowed by setting aside the order
passed by the Trial Court and confirmed by the High
Court.

13. The Pubic Prosecutor for the State, on the other
hand, supported the order of conviction and sentence
passed by the Trial Court and confirmed by the High
Court. He submitted that the conduct of the deceased
Halimabi was natural. She was believed by both the
Courts. It was obvious that on August 13, 1998, she was
pressurised by her mother-in-law for not giving name of
her assailant. Moreover, she was surrounded by her in-
laws and nobody from her parental family was present. It
was only after her family members had come that she got
courage to narrate true facts and that is how on August
14, 1998, second dying declaration was given by her
which inspired confidence and both the Courts believed
it. It was also submitted that from the evidence of parents
of the deceased, it was clearly proved that she was ill-
treated and was frequently beaten by the appellant.
Instances were also cited which went to show that the
appellant was cruel to the deceased. The counsel also
stated that both the Courts were right in observing that
Special Judicial Magistrate was an independent witness
and when on the basis of his evidence, a finding of guilt
of the appellant was recorded, no interference is called
for. He, therefore, submitted that the appeal be
dismissed.

14. Having heard the learned counsel for the parties, in
our opinion, the Courts below were right in convicting

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the appellant. From the evidence, it is proved that on
August 13, 1998, after the incident took place, the family
members of the appellant took the deceased to the
hospital. The record revealed that before few days of the
incident, the deceased had been brought to her marital
home. Before that, she was beaten by the appellant. She
left marital home and went to parental home. It is also in
the evidence that the deceased was beaten by her mother-
in-law and two instances had been cited. Obviously,
therefore, on August 13, 1998, when the deceased was
taken to hospital by her mother-in-law appellant, who
insisted not to give the name of any of the family
members of the appellant, the deceased had no courage
to name her. In the circumstances, she stated that it was
merely an accident. But, after her parents came, she
could state true facts, the Special Judicial Magistrate was
called again and the second dying declaration was
recorded. From the evidence of PW1- Dr. Kishan-
Medical Officer, it was clear that total burns were about
57%. It is also in evidence of PW6- Dr. Kishore that the
deceased was “in a position to make statement”. He,
therefore, accompanied Special Judicial Magistrate to the
ward of Halimabi and her dying declaration was
recorded. He also stated that he was present throughout
till the statement of Halimabi was recorded by the
Special Judicial Magistrate and when it was over, he put
endorsement on the paper given by Special Judicial
Magistrate. The Trial Court as well as the High Court
considered both the dying declarations of the deceased
Halimabi and both the Courts held the second dying
declaration true and inspiring confidence having
disclosed true facts so far as the incident was concerned.
Ill-treatment towards the deceased was clearly
established and completely proved. The evidence of

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PW2-father as well as PW3- mother of the deceased was
clinching on the point. Both the Courts were right in
holding that nothing could be elicited from the cross-
examination of those witnesses. It, therefore, cannot
successfully be contended that the only cause of
throwing burning lamp on the deceased by the appellant
was getting up late in the morning by the deceased and
not performing Namaz. Even prior to that incident, the
appellant used to beat the deceased and on the fateful
day, it was an excuse to kill the daughter-in-law by the
mother-in-law.

15. xx xx xx

16. In our opinion, criminal cases are decided on facts
and on evidence rather than on case law and precedents.
In the case on hand, there is ample evidence to show that
even prior to the incident in question, the appellant used
to beat the deceased and ill-treat her. It is in the light of
the said fact that other evidence requires to be
considered. In our view, both the Courts were right in
relying upon the second dying declaration of the
deceased treating it as true disclosure of facts by the
deceased Halimabi. In the light of the evidence of parents
of the deceased (PW2 and PW3), Dr. Kishore (PW6) and
Special Judicial Magistrate (PW5), it cannot be said that
the Courts below had committed any error and the
conviction deserves to be set aside.”

24. SectionIn Vikas and others vs State of Haryana 2008 (2) Supreme

Court Cases 516, their Lordships of Hon’ble the Supreme Court have

summarized the admissibility of dying declaration in evidence. Their

Lordships have held as under:-

“36. The Court, referring to earlier case law, summed up
principles governing dying declaration as under:

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(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration.

(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration.

(iii) This Court has to scrutinise the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting
or imagination. The deceased had opportunity to
observe and identify the assailants and was in a fit
state to make the declaration.

(iv) Where dying declaration is suspicious it
should not be acted upon without corroborative
evidence.

(v) Where the deceased was unconscious and
could never make any dying declaration the
evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to
be rejected.

(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.

(ix) Normally the court in Order to satisfy
whether deceased was in a fit mental condition to
make the dying declaration look up to the medical
opinion. But where the eye witness has said that the
deceased was in a fit and conscious state to make
this dying declaration, the medical opinion cannot
prevail.

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(x) Where the prosecution version differs from
the version as given in the dying declaration, the
said declaration cannot be acted upon.

37. One of the principles formulated by this Court in
Khushal Rao was that where a dying declaration is
recorded by a competent Magistrate, it would stand on a
"much higher footing". We are in respectful agreement
with the above view. In our judgment, this is also based
on ordinary course of human conduct. A competent
Magistrate has no axe to grind against the person named
in the dying declaration of the victim and in absence of
circumstances showing anything to the contrary, he
should not be disbelieved by the Court."

25. According to the post-mortem report, the cause of death was

septicaemic shock. The burns were about 75%. The probable time duration

between injuries and death was 1-2 weeks and between death and post-

mortem examination was 12-24 hours.

26. There is no inordinate delay in lodging the FIR. The incident

had taken place on the midnight of 26/27.4.2010. First attempt was to get

the injured treated. She was referred to Chandigarh, where her statement

was recorded by PW8 ASI Jagroop Singh and thereafter her statement was

recorded by PW7 Ranjeev Kumar.

27. Learned counsel for the appellants has also relied upon outlines

of human body. According to him, there was no burn injuries on the back of

deceased Kamaljit Kaur. However, as per the statement of Dr. Amandeep

Singh, there were about 75% burns.

28. In view of the above discussion, the prosecution has proved the

case against the appellants beyond reasonable doubt that the deceased was

beaten by them, thereafter, she was put on fire by her husband Gurtej Singh.

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There was no occasion for her to make tea at midnight. The dying

declaration is genuine, which inspire confidence and the same is duly

corroborated by the statement of PW4 Ranjit Singh, who was present in the

house at that time. All of them had common intention to kill her.

Accordingly, the appeal is dismissed affirming the judgment and order

under challenge.

29. The sentence of imprisonment of appellants Jeet Singh and

Surjit Kaur was suspended vide orders dated 30.7.2014 and 27.1.2017,

respectively. Their bail bonds are cancelled. The police is directed to take

them in custody forthwith.

(Rajiv Sharma)
Judge

20.3.2019 (Anil Kshetarpal)
vs Judge

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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