Surinder Kumar Vs. State of Punjab
[From the Judgement and Order dated 13.08.2008 of the High Court of Punjab and Haryana at Chandigarh in Crl. Appeal No. 337-SB of 1995]
[From the Judgement and Order dated 13.08.2008 of the High Court of Punjab and Haryana at Chandigarh in Crl. Appeal No. 337-SB of 1995]
Mr. Rajiv Kumar, Mr. Prabhoo Dayal Tiwari, Mr. Dinesh Verma, (for Dr. Kailash Chand), Advocates, for the Appellant.
Mr. V. Madhukar, AAG, Ms. Srijita Mathur, Ms. Anvita Gowshish (for Mr. Kuldip Singh), Advocates, with him for the Respondent.
Penal Code, 1860
Sections 304B, 498A – Dowry demand by husband – Deceased sprinkling kerosene and setting herself ablaze – Sustaining 90% burns – Dying declaration duly signed, with thumb impression – Conviction on the basis thereof – Plea that with 90% burn injuries, deceased could not have been in a fit condition to make a detailed statement and sign it – Further plea that dying declaration was not in a prescribed format for recording the declaration. Held there are numerous cases where people with 95% or even 100% burn injuries have made statements and same were accepted by Courts relying on the principles laid down in Paniben’s case. No format is prescribed for dying declaration and it need not be in a question answer form. It is also not mandatory that dying declaration should be recorded in presence of Executive/Judicial Magistrate. It should be truthful and voluntary like the Dying declaration in this case as it consisted of those facts which strangers like doctors and one ‘M’ could not have known. It implicates only husband and not other family members. Laxmi v. Om Prakash [JT 2001 (5) SC 280] distinguished.
It is also not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. (Para 22)
Clearly, the dying declaration made by Kiran Bala was not under any pressure. The only persons who were present when she made her dying declaration were Mohinder Singh and the two doctors. We have no doubt that both the Courts have rightly come to the conclusion that the dying declaration made by Kiran Bala was voluntary. (Para 23)
The dying declaration contains some facts which would not have been known to strangers like Mohinder Singh or the two doctors. (Para 24)
We are also of the opinion that the dying declaration was truthful inasmuch as Kiran Bala did not introduce any exaggerations and narrated only the basic and important facts, namely, about the persistent demand for dowry by her husband. She also truthfully stated that she had been telling her mother-in-law and brothers-in-law that the appellant was demanding dowry and that they had asked him not to make such demands. Kiran Bala did not implicate anybody other than the appellant and truthfully stated that since she was fed up with the persistent demand of dowry made by him, she poured kerosene oil on herself and set herself on fire. (Para 25)
We have no difficulty in upholding the concurrent views of the Trial Court as well as the High Court in accepting the dying declaration of Kiran Bala as voluntary and truthful. Consequently, we uphold the conviction and sentence awarded to the appellant. (Para 28)
2. Govindappa v. State of Karnataka [JT 2010 (4) SC 645] (Para 17)
3. Kamalavva v. State of Karnataka [JT 2009 (10) SC 130] (Para 19)
4. Satish Ambanna Bansode v. State of Maharashtra [JT 2009 (3) SC 329] (Para 20)
5. Sukanti Moharana v. State of Orissa [JT 2009 (9) SC 697] (Para 18)
6. Laxmi v. Om Prakash [JT 2001 (5) SC 280] (distinguished) (Para 27)
7. Paniben v. State of Gujarat [JT 1992 (4) SC 397] (Para 16)
1. The question for consideration is whether the dying declaration given by Kiran Bala to the effect that her husband (the appellant) had driven her to commit suicide should be accepted or not. The case of the appellant is that Kiran Bala accidentally caught fire and therefore it is not a case of suicide.
2. We agree with the concurrent view of the Trial Court and the High Court that Kiran Bala was driven to suicide by the appellant and as such his conviction and sentence under Section 304-B and Section 498-A of the Indian Penal Code (for short the IPC) should be upheld.
3. The appellant Surinder Kumar and Kiran Bala were married some time in 1990-91. They have a female child.
4. On 28th April 1994 Kiran Bala was admitted to the Civil Hospital, Tanda, with burn injuries all over her body. Since her condition appeared to be serious, Dr. Kewal Singh the Medical Officer informed the Assistant Sub Inspector of Police, Mohinder Singh, through a memo, of her admission in the hospital with 90% burns.
5. Mohinder Singh went to the Tehsil Office to contact the Tehsildar who was also the Executive Magistrate. Finding that he was not available and since a Judicial Magistrate was not located in Tanda, Mohinder Singh went to the Civil Hospital apparently to obtain first hand information of the events.
6. In the Civil Hospital, Mohinder Singh contacted Dr. Kewal Singh at about 9.30 a.m. and he certified that Kiran Bala was fit to make a statement. Thereafter, Mohinder Singh recorded the statement of Kiran Bala in vernacular in the presence of Dr. Kewal Singh and Dr. Satpal Singh, Medical Officer. The statement was read over to her and after she admitted the contents to be true, her signature and right thumb impression was taken on the statement. An endorsement was made on the statement by Dr. Kewal Singh and Dr. Satpal Singh to the effect that Kiran Bala had given her statement in their presence.
7. Unfortunately, Kiran Bala passed away on the same day.
8. In the meanwhile, based on the statement given by Kiran Bala, Mohinder Singh began investigating into the occurrence. On 5th May, 1994 he arrested the appellant who had been absconding till then and on completion of investigations, he filed a challan in which the appellant was accused of having driven Kiran Bala to commit suicide. The appellant was charged for offences under Section 304-B and Section 498-A of the IPC. He pleaded not guilty and claimed trial.
9. Before filing the challan, Mohinder Singh asked Dr. Kewal Singh in writing on 8th July 1994 whether Kiran Bala was conscious throughout the time her statement was recorded. Dr. Kewal Singh certified that Kiran Bala was medically fit (fully conscious) from the beginning of her statement till the very end.
10. At this stage, it is appropriate to quote the English translation of the dying declaration made by Kiran Bala on 28th April 1994. This reads as under:
‘I am resident of village Bainchan. My parental village is Chatiwind in Amritsar. I was married about 3 years ago with Surinder Kumar son of Rattan Chand, caste Balmiki, resident of Bainchan, Distt. Hoshiarpur, according to customary rites. I have one daughter, who is aged about 2 years. My husband Surinder Kumar is working as a labourer. Today i.e. 28.4.1994 at about 7.30 A.M. my husband Surinder Kumar quarreled with me and was saying that I had brought less dowry at the time of marriage and that I should bring a scooter and Rs.5000/- in cash from my parents. I had been telling my mother-in-law and brothers-in-law that my husband had been demanding more dowry and they had been asking him not to make such demands. I had not informed my parents about the demands of dowry so that they may not form a bad opinion about my husband. Today, at about 7.30 A.M. fed up with the demands of dowry made by my husband, I poured kerosene oil and set myself on fire. When I put myself on fire, my mother-in-law Ramo, sister-in-law Paramjit Kaur, my daughter Ritu, my husband Surinder Kumar were present in the house. However, my mother-in-law and sister-in-law were not aware about the setting on fire. When I caught fire, I raised alarm extinguished the fire. My husband Surinder Kumar, sister-in-law Paramjit Kaur, a neighbour, namely Kamla my nephew Kala took me to Civil Hospital for treatment. My parents should get back the articles of dowry given to me and my daughter Ritu should remain with my husband. My parents should not marry my younger sister Neeta with my husband Surinder Kumar. I had confided in my younger sister Neeta about demands of dowry made by husband. Except my husband, my mother-in-law, sister-in-law, brother-in-law or other members of my in laws had not made any demands of dowry and only my husband Surinder Kumar used to make the demands of dowry and I have set myself on fire after pouring kerosene oil being fed up from the demands of dowry made by my husband’.
Decision of the Trial Court:
11. On the merits of the case, the Trial Judge held that the evidence indicated that the appellant had been demanding dowry from Kiran Bala and since she had not brought sufficient dowry, he mistreated her. The Trial Judge was of the view that there was no reason to disbelieve the dying declaration given by Kiran Bala that she was driven by the appellant to commit suicide. It was held that the dying declaration was voluntary and was recorded by Mohinder Singh in the presence of two doctors. Under the circumstances, the appellant was found guilty of the offences alleged against him and sentenced to ten years rigorous imprisonment and fine for an offence under Section 304-B of the IPC and 3 years rigorous imprisonment and fine for an offence under Section 498-A of the IPC.
Decision of the High Court:
12. Before the High Court the submission made by the appellant was that the dying declaration could not be relied upon for several reasons. It was argued that since Kiran Bala had suffered burn injuries to the extent of 90%, she was not in a fit condition to make a statement. Moreover, the dying declaration was not recorded in a question-answer form. There was also no reason to disbelieve the defence witnesses who testified that Kiran Bala accidentally caught fire.
13. The High Court was of the view that there was sufficient evidence to show that Kiran Bala was driven to commit suicide, which she did at about 7.30 a.m. on 28th April, 1994. Kiran Bala was conscious when she gave her dying declaration and although her condition may have been critical at that point of time, there was sufficient intrinsic evidence to show that she was fit to make the statement. Moreover, it is not as if her statement was vindictive inasmuch as she squarely blamed only the appellant and nobody else.
14. On this evidence, the High Court upheld the view of the Trial Judge and affirmed the conviction and sentence.
Discussion and conclusion:
15. The only submission before us was that the dying declaration given by Kiran Bala should not be accepted. The reasons given for this were that she had 90% muscle deep burns and as per the post-mortem report the superficial skin had peeled off. It was argued that with such a high degree of burns, it cannot be said that Kiran Bala was in a condition to make a statement and secondly she could not have signed the statement or even affixed her thumb impression. It was submitted that the dying declaration is a very detailed one and it is not expected that a person in that condition could make such a detailed dying declaration.
16. We are not at all impressed by any of these submissions. There are a large number of decisions that have been cited before us by learned counsel for the State where persons with 90% burns have given a dying declaration and that has been accepted. For example, in Amit Kumar v. State of Punjab [JT 2010 (8) SC 418 : 2010 (12) SCC 285] the victim had 90% burns and yet her statement was accepted. This Court noted, inter alia, that the victim did not unfairly implicate anybody who had not participated in the crime. This Court relied on ten principles governing a dying declaration as mentioned in Paniben v. State of Gujarat [JT 1992 (4) SC 397 : 1992 (2) SCC 474] to conclude that there was no reason to disbelieve the dying declaration given by the victim in that case.
17. Similarly, in Govindappa v. State of Karnataka [JT 2010 (4) SC 645 : 2010 (6) SCC 533] the victim had 100% burn injuries and yet she was found to be in a fit state of mind to give her statement and affix her left thumb impression on the statement. The dying declaration was accepted by this Court on the evidence of the doctor that the victim was in a position to talk.
18. In Sukanti Moharana v. State of Orissa [JT 2009 (9) SC 697 : 2009 (9) SCC 163], the victim had 90 to 95 per cent burn injuries covering 90 to 95 per cent body surface and yet her dying declaration was accepted after considering the principles laid down in Paniben.
19. In Kamalavva v. State of Karnataka [JT 2009 (10) SC 130 : 2009 (13) SCC 614], reference was again made to Paniben. It was noted that the doctor who was present at the time of recording the dying declaration had attached a certificate to the effect that it was recorded in his presence. This Court rejected the technical objection regarding the non-availability of a certificate and endorsement from the doctor regarding the mental fitness of the deceased. It was held that the view taken by this Court in numerous decisions is that this is a mere rule of prudence and not the ultimate test as to whether or not the dying declaration was truthful or voluntary.
20. In Satish Ambanna Bansode v. State of Maharashtra [JT 2009 (3) SC 329 : 2009 (11) SCC 217], the victim had 95% superficial to deep burns and after referring to Paniben, her dying declaration was accepted by this Court.
21. Insofar as the case before us is concerned, we may only note that there is no format prescribed for recording a dying declaration. Indeed, no such format can be prescribed. Therefore, it is not obligatory that a dying declaration should be recorded in a question-answer form. There may be occasions when it is possible to do so and others when it may not be possible to do so either because of the prevailing situation or because of the pain and agony that the victim might be suffering at that point of time.
22. It is also not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful. There could be occasions when persons from the family of the accused are present and in such a situation, the victim may be under some pressure while making a dying declaration. In such a case, the Court has to carefully weigh the evidence and may need to take into consideration the surrounding facts to arrive at the correct factual position.
23. Clearly, the dying declaration made by Kiran Bala was not under any pressure. The only persons who were present when she made her dying declaration were Mohinder Singh and the two doctors. We have no doubt that both the Courts have rightly come to the conclusion that the dying declaration made by Kiran Bala was voluntary.
24. The dying declaration contains some facts which would not have been known to strangers like Mohinder Singh or the two doctors. For example, they could not have known the parental village of Kiran Bala or when she was married or the caste of her husband and so on. Therefore, it is incorrect to obliquely suggest that since the dying declaration was detailed, it should not be accepted. On the contrary, the details given by Kiran Bala at the time of her death are indicative of her consciousness and her fitness to make a statement.
25. We are also of the opinion that the dying declaration was truthful inasmuch as Kiran Bala did not introduce any exaggerations and narrated only the basic and important facts, namely, about the persistent demand for dowry by her husband. She also truthfully stated that she had been telling her mother-in-law and brothers-in-law that the appellant was demanding dowry and that they had asked him not to make such demands. Kiran Bala did not implicate anybody other than the appellant and truthfully stated that since she was fed up with the persistent demand of dowry made by him, she poured kerosene oil on herself and set herself on fire.
26. It is not necessary for us to repeat the principles laid down in Paniben since they have been repeated in several judgments, some of which have been referred to above. All that we need say is that the decisions referred to and relied on in Paniben need to be updated. Applying the principles laid down Paniben, the dying declaration given by Kiran Bala ought to be accepted as voluntary and truthful.
27. Learned counsel for the appellant relied on Laxmi v. Om Prakash [JT 2001 (5) SC 280 : 2001 (6) SCC 118] particularly paragraph 21 of the Report. In that case, the third dying declaration (out of five) was under consideration. This Court upheld the doubt expressed by the Trial Court (and endorsed by the High Court) that even though the victim had 85% burns, her neck, mouth and lips were burnt. The records available with the Burns Ward of the concerned hospital also showed that her hands were burnt and the skin had peeled off. In such a situation, a grave doubt was expressed whether the victim could have made a detailed statement and put her signature thereon. Clearly, that case was decided on its peculiar facts and no general principle of law was laid down in the paragraph under reference.
28. Given the facts of the case and the law laid down in Paniben, we have no difficulty in upholding the concurrent views of the Trial Court as well as the High Court in accepting the dying declaration of Kiran Bala as voluntary and truthful. Consequently, we uphold the conviction and sentence awarded to the appellant.
29. There is no merit in the appeal and it is accordingly dismissed.