STATE OF PUNJAB Vs. RAJ KUMAR

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court directing acquittal of the respondents who had faced trial for alleged commission of offence punishable un der Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC). Each was sentenced to undergo RI for life and to pay a fine of Rs. 1,000/-each with default stipulation.

(2.) Background facts as projected by prosecution in a nutshell are as follow : Sunita (hereinafter referred to as the deceased) had been married to accused-Raj Kumar about 11/2 year prior to the occurrence and a son had been born to the couple though he had died some time later. Relationship between the parties was strained on account of the demands being made by Raj Kumar, as also by his par ents, Ram Piari and Piara Singh and as Sunita and her parents had not been able to satisfy their demands, the three accused had maltreated her. Chaman Lal (PW.7, one of the brothers of the deceased had an unpleasant exchange with Ram Piari on account of her behaviour with his sister and this act had further incensed the ac cused. Around midnight on March 12, 1996, Ram Piari sprinkled kerosene oil on Sunita and set her on fire. The alarm raised by Sunita attracted her husbands brother and his wife and she was immediately removed to the Guru Nanak Dev Hospital, Amritsar by them. ASI, Harjinder Singh (PW.8) of Police Station Sadar, Amritsar also reached the hospital and after ascertaining Sunitas fitness to make a statement from Dr. Sanjiv Kumar (PW.9) recorded the same (Exh. PM/2) at about 10.20 a.m. on March 13, 1996 and on its basis the FIR was registered at the Police Station at 10.45 a.m. ASI Harjinder Singh also made an application to the Deputy Commis sioner for getting Sunitas statement recorded by a Magistrate. Naib- Tehsildar Lakhbir Singh Kahlon (PW.6) was accordingly deputed to do the needful. He too went to the hospital and after getting the opinion of Dr. Kulwar Singh (PW.4) that Sunita was fit to make a statement recorded the same (Exh. PL) at 6.00 p.m. on March 13, 1996. Sunita died on March 14, 1996. On the completion of the investiga tion, the accused were charged for offence punishable under Section 302/34 IPC and as they pleaded not guilty, were brought to trial. Prosecution examined witnesses to establish the accusations. Primarily reference was made to the evidence of PWs 5 and 7 (Ashok Kumar and Chaman Lal respec tively) to whom she had made oral dying declarations about 10.30 a.m. on March 13, 1996. Lakhbir Singh (PW-6) had recorded the dying declaration. Similarly, Harjinder Singh, ASI (PW-8) the Investigating Officer had recorded the dying dec laration (Exh. PM/2) and Dr. Sanjiv Kumar (PW-9) had opined that the deceased was in a fit condition to make statement which had been recorded by PWs 6 and 8. Ap pellant No. 1 pleaded alibi. He further stated that he had taken the deceased to the hospital in injured condition. Two witnesses were examined to prove the aforesaid stands. The trial Court observed that the dying declaration (Exh. PL and PM/2) made to ASI Harjinder Singh and Lakhbir Singh clearly proved the prosecution case be yond doubt. It also observed that it appears that last three lines of the statement Exh. PM/2 excluded Raj Kumar and Piara Singh from any wrong doing. It was clear from the subsequent statement (Ex. PL) that she had reiterated the facts already men tioned in the earlier statement (Exh. PM/2) and again there was manipulation in the statement Exh.PM/2). The trial Court relied on oral dying declaration made to PWs 5 and 7 at 10.30 a.m. on 13.5.1996. Referring to the evidence of the doctor and PW-8 it was observed that the deceased was in a conscious and fit state of mind to make the dying declaration. Referring to the fact that the FIR had been lodged promptly, conviction was recorded. Conviction was challenged before the High Court. It was the stand of the Appellants (respondents herein) that dying declaration (Ex. PL) in which manipulations were done had been recorded after deliberation between the deceased and her broth ers PWs 5 and 7. The State Supplorted the judgment of the trial Court. The High Court observed that as an after thought the deceased might have added that her mother-in-law set fire on her and her father-in-law was present in the house, though in dying declaration (Ex. PL) the deceased had clearly inculpated all the ac cused persons in the actual incidence. The High Court accepted the stand of the accused persons that the last three lines in the dying declaration (Exh. PM/2) appear to have been interpolated. It was however noted that though the mother-in-law had been stated to have set her on fire, but there was no reference whatsoever to the other two accused persons. The High Court held that in case of eye-witnesses, there can be dissection of a statement to find out as to what part can be believed. But in the case of dying declarations same cannot be done.

(3.) Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous. Even if it is accepted that there was some manipulation as urged by the accused persons, the effect of the dying declaration (Exh. PL) has not been dealt with at all. In the said dying declaration A-2 was named. Both the dying declarations clearly referred to A-2.