K.S. Garewal, J.@mdashSital Kaur (52), the appellant herein, was sent up for trial for the murder of her daughter-in-law Kuldip Kaur (19) and other related offences. Sital Kaur''s two sons Jaswant Singh (husband of Kuldip Kaur) and Surjit Singh had also been tried along with her. The learned Additional Sessions Judge charged the accused for dowry death but not for murder. The learned Additional Sessions Judge (ad hoc), Fast Track Court, Hoshiarpur vide judgment dated January 29,2003 acquitted both Jaswant Singh and Surjit Singh but Sital Kaur was convicted u/s 304-B I.PC. and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month. Sital Kaur has filed the present appeal to challenge her conviction and sentence. There is no appeal against the acquittal of the other two accused.
2. Sital Kaur was wife of Kesar Singh and lived at Denowal Kalan, Police Station Garhshankar with her two sons Jaswant Singh (28) and Surjit Singh (22). Jaswant Singh had got married to Kuldip Kaur (deceased) of Langroya in August 2000. Kuldip Kaur would be harassed every day by Sital Kaur and her co-accused for having brought less dowry and also would be beaten up often. She had informed her father Ajit Singh (P W1) about this and the matter had also been reported to the village Panchayat who had advised the accused not to maltreat or harass Kuldip Kaur but this was in vain.
3. On May 2, 2001 Kuldip Kaur suffered immolation in her matrimonial home at which time Sital Kaur was present in the house alongwith her sister Mohinder Kaur and co-accused Surjit Singh. Neither Sital Kaur nor any other member of her family tried to extinguish the fire. Sarpanch Gurcharan Kaur of the village and many others reached the spot and heard Kuldip Kaur crying and asking to be saved as she was carrying a child in her womb. Kuldip Kaur had also told the gathering that it was Mohinder Kaur who had handed over a can of kerosene oil to Sital Kaur, whereafter Sital Kaur had sprinkled the oil on her clothes and set her on fire with a match stick. This had been done on the basis of conspiracy between the accused and her husband Jaswant Singh had been sent away from the house early in the morning.
4. Kuldip Kaur was evacuated to Civil Hospital, Garhshankar where her brother Bhupinder Kumar (PW3) and other relatives also arrived. Kuldip Kaur also told them that she had been set on fire by the accused.
5. Information of arrival of Kuldip Kaur with burn injuries at Civil Hospital, Garhshankar was sent to the Police Station and received by ASI Dilbagh Singh (PW6). The Investigating Officer straightaway went to the Area Magistrate at Garhshankar and requested him to record the statement of Kuldip Kaur. Shri Varinder Aggarwal, S.D.J.M. Garhshankar (PW2) thereupon reached the hospital for the purpose of recording the statement (dying declaration). The Magistrate obtained the opinion of the Medical Officer with regard to Kuldip Kaur''s fitness to make the statement, the Medical Officer opined that Kuldip Kaur was fit for the purpose. Thereafter, Kuldip Kaur''s statement Ex. PC was recorded, it was read over to her, explained to her and she thumb marked it after admitting it to be correct. The Medical Officer had also certified that Kuldip Kaur had remained fit while she was making the statement.
6. In statement Ex.. PC, recorded in question and answer form, Kuldip Kaur had answered the questions put to her and said she had got married in the month of August 2000, there was a dispute of dowry, her mother-in-law was demanding dowry but no other person had done so although she (appellant herein) used to beat her. When asked regarding the occurrence, Kuldip Kaur had stated that the appellant''s sister, referred to as Massi (Mohinder Kaur), used to say that she would not allow Kuldip Kaur to stay in the house. Kuldip was cooking food when the appellant set her on fire. No other person was present. The boy (Surjit Singh) was on the roof and Massi (Mohinder Kaur) was inside. Kuldip Kaur was asked regarding the attitude of her husband and she answered that he always followed his mother but he was not present in the house as he had gone to Garhshankar for work. On further questioning Kuldip Kaur replied that she had been set on fire after kerosene had been sprinkled on her person.
7. The said statement was concluded at 12.05 P.M. on May 2,2001, it bore the right thumb impression of Kuldip Kaur and it had been certified by Dr. D.K. (Dr.Devinder Kumar) that she had remained fit during the statement.
8. On the basis of the above statement, case u/s 307 read with 34 IPC was registered at Police Station Garhshankar at 1.25 P.M. on the same day. Dr. Jagdish Singh Saini (PW7), Gynecologist at Civil Hospital, Hoshiarpur was called at 6.30 P.M. to examine Kuldip Kaur since she had in the meantime been taken to his hospital at Hoshiarpur. She was found to be six months pregnant and had burn injuries. The foetus was aborted on May 3. Thereafter, offence u/s 316 IPC was also added. Kuldip Kaur died on May 5 at 6.35 A.M. and the offence was changed to one u/s 302 IPC.
9. Inquest proceedings were conducted at Civil Hospital, Hoshiarpur and the dead body was sent for post mortem examination which was conducted by Dr. Harinder Jit Singh Garg (PW4) on May 5,2001. The Medical Officer observed as under:
"There were 95% burns present all over the body except on posterior aspect of head. Vital reaction was present. Burns were superficial and deep in nature. Body was smeared with ointment. Pus was present on various sides. Evidence of venesection was present over right foot just about the right medial mallelous. There were no other injuries present on the body. Organs of generation were normal and healthy. Uterus size was approx. 24 weeks. It contained blood clots and secretions. In my opinion the cause of death was 95% burns with shock and septicaemia. The injuries were ante-mortem in nature. The probable time that elapsed between injury and death was as per hospital records vide MRD No. 2521 dated 2.5.2001 and time elapsed between death and postmortem examination was within 12 hours as calculated."
10. Sital Kaur and her co-accused were arrested and sent up for trial for the murder of Kuldip Kaur and also for causing death of quick unborn child by act amounting to culpable homicide. Quite surprisingly the learned trial Judge, inspite of the clear and unambiguous words used by Kuldip Kaur in her dying declaration Ex. PC, did not charge the accused of murder or causing the death of unborn child but only of dowry death punishable u/s 304-B IPC. It was for this offence that the accused were tried after they pleaded not guilty.
11. The prosecution examined Kuldip Kaur''s father Ajit Singh (PW1), Shri Varinder Aggarwal, PCS, CJM Sangrur (PW2), Kuldip Kaur''s brother Bhupinder Kumar (PW3), Dr. Harinderjit Singh Garg (PW4), Draftsman Jasbir Singh (PW5), ASI Dilbagh Singh (PW6), Dr. Jagdish Singh Saini (P W7) and closed its case. Quite surprisingly Dr. Devinder Kumar, the Medical Officer in whose presence the dying declaration had been recorded was given up as unnecessary.
12. The accused were examined without oath u/s 313 Cr.P.C. The appellant admitted the relationships inter se but did not accept the other items of prosecution evidence. In her explanation the appellant stated as under:-
"I am quite innocent. Soon after marriage Kuldip Kaur deceased started living separately. A boy used to come from village Langroya to meet the deceased to which her in-laws family member used to object. As such she remained frustrated on the alleged date of occurrence. Her clothes caught fire accidentally while extinguishing fire of burning heap of parali. No demand of dowry was ever made nor she was treated with cruelty."
13. When called uponrto enter defence, Satnam Singh (D W-1) and Tarsem Singh (DW2) were examined to support the defence version and proclaim Sital Kaur''s innocence.
14. Before the learned Additional Sessions Judge (ad hoc) the defence had argued that the case had been registered on the basis of the statement of the deceased recorded by the Magistrate and not the statement recorded by the Investigating Officer, therefore, this statement could not form basis of F.I.R. This argument was rejected since the Investigating Officer had gone to the hospital on receiving information and had requested to the Magistrate to record the statement of the injured person. Moreover, there was no bar in recording the formal FIR on the basis of the certified copy of the dying declaration since the original had been retained by the Magistrate in his Court. The learned defence counsel had also argued that the Medical Officer who had given his opinion regarding Kuldip Kaur''s fitness had not been examined. This argument was rejected because the learned trial Judge believed what the Magistrate had said while appearing as PW2 that after he recorded the statement the Medical Officer had certified that Kuldip Kaur had remained fit during the recording of her statement. The learned trial Judge had also held that even if the doctor who had given his opinion was not examined, the certificate given by him could not be ignored since it was proved by the Magistrate himself in whose presence the certificate was given. The learned counsel has further argued that Kuldip Kaur''s statement could not be treated as a dying declaration because the Magistrate had not given his certificate at the foot of the statement of Kuldip Kaur as required u/s 164 Cr.P.C. The Court held that Kuldip Kaur had been fit to give her statement and had remained fit, physically and mentally during the course of the recording of the statement by the Magistrate and even if the Medical Officer who had given certificate had not examined by the prosecution, the statement could not be ignored.
15. We have gone deep into the record of the dying declaration and are surprised to find that the learned trial Judge had not carefully read what the deceased had actually stated. If the learned trial Judge had done so, he would have discovered that the deceased was actually accusing her mother-in-law of having sprinkled kerosene on her and set her on fire. If this dying declaration is believed, and there appears to be no reason to doubt it, then the statement of the deceased would amount to offence of murder and nothing less. The learned trial Judge found the appellant guilty of only dowry death and not murder but there is no appeal against that decision. However, the appellant was sentenced to imprisonment for life.
16. The learned counsel for the appellant has contended that statement Ex.PC could not be termed as dying declaration because the prosecution had failed to examine Dr. Devinder Kumar to prove the medical certification that the injured was in a fit state of mind at the time of making the declaration. The order in which the events had unfolded on the morning of May 2 leading to the recording of the statement of the deceased by the learned Magistrate have been given in detail above. The sole point for consideration is whether the statement recorded by the Magistrate can be made basis of conviction even in the absence of the testimony of Dr. Devinder Kumar.
17. The learned counsel for the appellant had relied upon Kamalakar Nadram Bhavsar v. State of Maharashtra, 2001(1) RCR (Criminal) 228 (SC). In this case the Supreme Court had upheld the conviction of some of the appellants for abetment of suicide of the bride but had altogether rejected the dying declaration. The circumstances of the case were entirely different from those of the case at hand. It was a case in which the prosecution had not originally relied on the dying declaration. The declaration had been disclosed by the Medical Officer who had conducted the postmortem in reply to question put in the cross examination. The defence had sought production of that statement which was later on produced and made the basis of acquitting the accused of all charges. Therefore, the court doubted the genuineness of the dying declaration, more so because the declarant had been admitted with 95% burns, put on oxygen and it was difficult to believe that she could have made a dying declaration when she was even capable of breathing by herself. In the present case it was important for the prosecution to examine Dr. Devinder Kumar but he had been given up as unnecessary. Nevertheless, this would make little difference to the case.
18. It is true that the Supreme Court had in Paparambaka Rosamma v. State of A.P., (1997) 7 SCC 695, held as under :-
"The deceased had sustained extensive burn injuries on her person. The doctor who performed the post-mortem stated that the injured had sustained 90% burn injuries. The prosecution case was solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. (Para 8)
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 decision. (Para 8)
The certificate appended to the dying declaration at the end by the doctor did not comply with the requirement inasmuch as the doctor had failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only stated that "patient is conscious while recording the statement". In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below. In view of the these material omissions, it would not be safe to accept the dying declaration as true and genuine and as made when the injured was in a fit. state of mind. (Para 9)."
19. However, Paparambaka''s case (supra) was overruled by Five Judges of the Supreme Court in Laxman v. State of Maharashtra, 2002(2) Apex Court Judgments 708 (S.C.): 2003(1) Criminal Court Cases 01 (S.C):
"It is indeed a hypertechnical 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 especially 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 whereafter he had recorded the dying declaration."
20. Thereafter, the Supreme Court in P.V.Radhakrishna v. State of Karnataka, 2003(2) Apex Court Judgments 311 (S.C.): (2003) 6 SCC 433, discussed the meaning and scope of dying declarations recorded u/s 32 of the Evidence Act and observed as follows :-
"The general rule is that all oral evidence must be direct. The eight clauses of Section 32 of the Evidence Act are exceptions to the general rule against hearsay. Clause (i) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice, and secondly, the sense of impending death, which creates a sanction equal to the obligation on an oath. The general principle on which this species of evidence is admitted is that they are declarations 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 mind is induced by the most powerful considerations to speak the truth - a situation as solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim nemoi moriturus praesumitur mentiri - a man will not meet his Maker with a lie in his mouth. (Para 10)
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 a 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 is corroborated. The rule requiring corroboration is merely a rule of prudence. (Para 12)
The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. In the instant case, there is no material to show that the dying declaration was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility. (Paras 13 and 14)"
21. We are of the considered opinion that statement Ex. PC recorded by Shri Varinder Aggarwal, C.J.M., Sangrur (PW2) (at the relevant time S.D.J.M., Garhshankar) had been recorded by him after he was convinced on the basis of his own judgment of her capacity to speak and to make a statement. Certification to that effect was also given by the Medical Officer on the request of the Magistrate. The original record of the proceedings has been perused by us. It was recorded by the learned Magistrate that an application for recording the statement of Kuldip Kaur was moved before him. He went to Civil Hospital, Hoshiarpur at 12.05 P.M. He obtained the opinion of Dr.Devinder Kumar, who was incharge of the patient, regarding her fitness to make the statement. This opinion is on the application itself. All persons present with the patient were sent out by the Magistrate except Dr. Devinder Kumar. Thereafter, the statement of Kuldip Kaur (sic) was recorded. Dr. Devinder Kumar certified that the patient remained fit during the course of her statement. At the foot of the statement R.T.I, of Kulwant Kaur (sic) was affixed and the Medical Officer had also certified that she remained fit during the statement.
22. Statements recorded by Magistrates of persons in the throes of death must never be lightly brushed aside on the specious ground that the prosecution had failed to examine the Medical Officer to prove his certification. Magistrates are responsible Judicial Officers, who are well trained and disciplined members of the judicial service. There should never be any doubt as regards the Magistrate''s integrity in such matters. The Magistrate is completely independent and totally unbiased when he records statements of dying persons. No Magistrate would have any personal reason to prepare a false record. As Magistrates they are able to assess each situation and decide whether or not the person before them is capable or fit to speak. Therefore, the statement recorded by a Judicial Magistrate even without proper medical certification is valid and must be accepted. The controversy is now completely at rest after the Supreme Court''s decision in Laxman''s case (supra).
23. In view of the above discussion, we find no merit in this appeal and the same is hereby dismissed.
