Badar Durrez Ahmed, J.@mdashBy virtue of the judgment dated 20.10.1993, delivered by the learned Additional Sessions Judge in Sessions Case 67/1983 arising out of FIR No. 355/1983 registered at police station Kingsway Camp u/s 302/109 IPC, the appellant has been found guilty for the offence punishable u/s 302 IPC, for having committed the murder of his wife Inderjit Kaur by setting her on fire after pouring kerosene oil on her. By a separate order on sentence passed on the same day, i.e., on 20.10.1993, the learned Additional Sessions Judge sentenced the appellant to imprisonment for life and also imposed a fine of Rs 2000/- for the offence punishable u/s 302 IPC. In default of payment of fine, the appellant was directed to suffer simple imprisonment for a period of six months. Aggrieved by the impugned judgment and order on sentence, both dated 20.10.1993, the appellant has filed the present appeal. At this juncture itself, it ought to be pointed out that initially, alongwith the appellant Kamaljit Singh, his mother Balbir Kaur was also charged of having committed an offence punishable u/s 302/34 IPC. Both of them pleaded not guilty and claimed trial. However, during the pendency of trial, Balbir Kaur passed away and the proceedings abated insofar as she was concerned. The trial continued in respect of the appellant Kamaljit Singh and ultimately resulted in his conviction, as indicated above.
2. The prosecution case is that the appellant Kamaljit Singh and the deceased Inderjit Kaur got married in 1975. Thereafter, the appellant started maltreating and harassing Inderjit Kaur and started making cash demands from her. The demands were being made from time to time for various articles, such as a fridge, television and cash amounting to Rs 5,000/-. Since Inderjit Kaur was unable to meet the demands, she was allegedly beaten and harassed from time to time. She even wrote letters to this effect, to her parents. These letters were addressed to her father being Exhibits P-1, P-2 and P-5. On 12.05.1983, between 9.00 to 9.30 p.m. approximately, the appellant is said to have had a quarrel with his wife Inderjit Kaur, in his house bearing No. E-279, Otram Lines, Delhi. Thereafter, the appellant Kamaljit Singh is said to have beaten her and dragged her by her hair from the kitchen to the bathroom, where he poured kerosene oil over her and set her ablaze. While this was happening, Kamaljit Singh.s mother Balbir Kaur is said to have been present in the house, as also are two other boys, who were working with Kamaljit Singh. Kamaljit Singh, it is alleged, after setting his wife Inderjit Kaur on fire, ran away from the back door of the house. Kamaljit Singh.s mother Balbir Kaur and the two other boys, who were present there, poured water over Inderjit Kaur. Thereafter, a taxi was called by persons who had gathered there and the injured Inderjit Kaur was taken to LNJPN Hospital by PW-10 (Baldev Singh). Inderjit Kaur is said to have told PW-10 (Baldev Singh) that her husband, Kamaljit Singh, dragged her by her hair from the kitchen to the bathroom, poured kerosene oil over her and set her on fire.
3. The MLC (Exhibit-PW-7/A) indicates that the injured Inderjit Kaur was brought to the hospital on 12.05.1983 at 10.30 p.m. by Baldev Singh. The said MLC records the alleged history of the injured as "being burnt by husband after pouring kerosene oil". It also records that the history was given by the patient herself, who was conscious at that time. The MLC also indicates that the injured Inderjit Kaur was directed to be admitted in the burns ward for detailed examination and further management. As per Exhibit-PW-19/D, which is part of the case-sheet of the burns ward (Exhibit-PX-1), the statement given by the patient is as under:
According to the patient-her husband had a quarrel with her & beat her. Then he dragged her to the bathroom, sprinkled kerosene oil on her body & set her on fire. His mother also helped him in the above procedure.
4. After admission in the burns ward, PW-19 (Dr Vinod Kumar Goel) is said to have certified the patient as "fit to give a statement". The endorsement to this effect is Exhibit-PW-19/A on the MLC (Exhibit-PW-7/A). The said endorsement was made on 12.05.1983 at 11.40 p.m. Thereafter, the injured Inderjit Kaur is said to have given her dying declaration (Exhibit-PW-17/A). The said dying declaration was recorded in Hindi, the English translation of which reads as under:
Smt. Inderjit Kaur W/o Kanwaljeet Singh aged 25 years resident of E-289 Otram Lines, Kingsway Camp, Delhi- 110009, made the following statement:
I alongwith my family reside at the aforesaid address. Quarrel often takes place between me and my husband. He beats and asked me that I should not go to my parents house. I should bring dowry. Today also, at 9.30 P.M., a quarrel took place between him and myself and during this course, he gave me a slap on my eye. Thereafter he holding my hair dragged me out of the kitchen and took into the bathroom, poured kerosene oil over me and thereafter set me on fire with the help of a match stick. When he set me on fire, my mother in law was in the house. Two boys namely Sheetal and Suresh who work with my husband, were also present at that time.
I do not know what happened thereafter.
I have heard the statement and the same is correct.
Statement given in my R.T.I. of Ram Kishan
Presence Smt. Inderjit Kaur SHO/Kingsway
Sd/- Camp,
Dr. V.K. Goel Attested 12.5.1983
12.5.1983 Gurbachan Singh
Sub-Insp., Police Post
Kingsway Camp
5. The death summary prepared at the burns ward is Exhibit-PW- 19/C. It indicates that the date and time of admission of Inderjit Kaur, aged about 25 years, in the burns ward, was 12.05.1983 at 11.10 p.m. and the date and time of her death was 13.05.1983 at 4.15 a.m. The death summary indicates that the general condition of the patient was grave. Her pulse rate was 108/minute, regular and her rate of respiration was 24 / minute, regular. She was severely dehydrated. IV fluids had been started and pathedine had also been administered. This was done on 12.05.1983. At about 3.30 a.m. on 13.05.1983, the patient started gasping and in spite of all resuscitation measures, she expired at 4.15 a.m. The post mortem examination on the body of Inderjit Kaur was conducted at 12.15 p.m. on the same day, i.e., 13.05.1983. The post mortem report is Exhibit-PW-8/A and the same was prepared by PW-8 (Dr B.N. Reddy, Associate Professor, Department of Forensic Medicine, Maulana Azad Medical College, New Delhi). He found the following injuries to be present on the body:
1. Burns involving epidermis was present all over face, all around neck, all over upper limbs including palms, all around chest except both breast region, all around abdomen except both iliac fosse, both lower limb except soles. The cuticular layer peeled off in patches, floor and margins of the burns were reddish. Unpeeled areas of burns blackish, burns were evenly distributed, approximate area of burns was 85 to 90%. All the burns were antemortem. Scalp hair were burnt only a tips on sides. No smell of kerosene oil in the scalp hair. Burns were not present in the lower front of both iliac fosse growing, pubic region buttocks and breast.
2. Cut open drip wound of 2cm was present in the lower inner part of right leg.
3. Cut open drip wound of 4cm was present in right femoral region.
There were no other injuries on the body. Injury No. 2 and 3 are surgical.
In the opinion of PW-8 (Dr B.N. Reddy), death was due to shock as a result of extensive burns by fire. All the burns were ante mortem and were sufficient to cause death in the ordinary course of nature.
6. As many as 23 prosecution witnesses were examined by the prosecution in support of its case. The defence also examined two witnesses, both of whom were the daughters of the appellant Kamaljit Singh and the deceased Inderjit Kaur.
7. The trial court, after examining the evidence, observed that the prosecution case mainly revolved around the dying declaration (Exhibit-PW-17/A) which, according to the trial court, has been amply corroborated by the other witnesses. The trial court was of the view that the prosecution version, that the deceased Inderjit Kaur was subjected to harassment and maltreatment stood established. It also came to the conclusion that she was also beaten on several occasions prior to the incident of burning. The letters (Exhibits P-1, P-2 and P-5), according to the trial court, also established the allegation of maltreatment and torture on the part of the appellant. Thus, believing the dying declaration (Exhibit-PW-17/A) to be the true and correct statement of Inderjit Kaur before she died, the trial court found the appellant to be guilty of the offence punishable u/s 302 IPC.
8. The learned Counsel for the appellant challenged the dying declarations as not being truthful or correct. With regard to the oral dying declaration said to have been made to PW-10 (Baldev Singh), the learned Counsel submitted that he was a false witness. Referring to his testimony, the learned Counsel submitted that this witness did not know who had brought the taxi in which he took the injured Inderjit Kaur to the hospital. He submitted that this contradicted the prosecution case that the taxi belonged to PW-10 (Baldev Singh). He further submitted that PW-10 (Baldev Singh) is not a chance witness and that he was a relative of Inderjit Kaur and, therefore, no reliance can be placed on his testimony, as he was an interested party.
9. With regard to the second dying declaration, which had been recorded by PW-7 (Dr Deepak Mittal) at LNJPN Hospital on the MLC (Exhibit PW-7/A) itself, the learned Counsel for the appellant submitted that this also was not a dying declaration made by Inderjit Kaur, although the MLC (Exhibit-PW-7/A) says so. He submitted that Inderjit Kaur was brought to the hospital by PW-10 (Baldev Singh) and that in all likelihood, this was the statement given by PW-10 (Baldev Singh). Moreover, he submitted that the MLC (Exhibit-PW-7/A) records that the patient was conscious, but in his cross-examination, PW-7 (Dr Deepak Mittal) has indicated what he means by a patient being "conscious". According to him, whether a patient is conscious or unconscious is ascertained by giving a prick on the foot of the patient. If he responds, then the patient is said to be conscious. According to the learned Counsel for the appellant, such kind of consciousness is not sufficient to lead to the conclusion whether the patient was well- oriented and was able to speak or not ? Unless and until there is certainty with regard to that, merely writing that "the patient was conscious. does not mean anything. Consequently, he submitted that there was grave doubt as to whether the alleged dying declaration, said to have been made by Inderjit Kaur to PW-7 (Dr Deepak Mittal), as recorded in the MLC (Exhibit-PW-7/A), had, in fact, been made by Inderjit Kaur.
10. With regard to the dying declaration (Exhibit-PW-17/A), which is said to have been recorded in the burns ward immediately after 11.40 p.m. on 12.05.1983, but prior to 12.05 a.m. on 13.05.1983 (i.e. the time at which the rukka was dispatched), the learned Counsel for the appellant submitted that no sanctity can be attached to the same. To demonstrate this, he submitted that the scribe of this statement is unknown. It is not known as to who recorded this dying declaration. The testimony of PW-17 (Ram Kishan, SHO of police station Kingsway Camp), who was also the investigating officer in this case, is ambivalent. In his examination-in-chief, PW-17 (Ram Kishan) initially says that it is he who recorded the statement and shortly thereafter he stated that he did not record the statement. In his cross-examination, he stated that he did not remember who recorded the statement of Inderjit Kaur. He also confirmed that it is not signed by the scribe and that apart from Inderjit Kaur and the two men, being PW-19 (Dr Vinod Kumar Goel) and himself [PW-17 (Ram Kishan)], nobody else was present at the time the statement was recorded. The learned Counsel submitted that if that was the position, then it is either Dr Vinod Kumar Goel or Ram Kishan, who was the scribe of the dying declaration (Exhibit-PW-17/A). Ram Kishan (PW-17) has stated that he was not the scribe. PW-19 (Dr Vinod Kumar Goel) stated that the dying declaration (Exhibit-PW-17/A) was recorded in his presence by PW-17 (Ram Kishan) but, as noted above, PW-17 (Ram Kishan) denied that he recorded the statement. It is on the basis of these contradictory statements made by PW-17 (Ram Kishan) and PW-19 (Dr Vinod Kumar Goel) that the learned Counsel for the appellant submitted that no sanctity can be placed on Exhibit-PW-17/A because it is not known as to who scribed it. Apart from this, the learned Counsel for the appellant also submitted that the attesting witness SI Gurbachan Singh, who had earlier been cited as a prosecution witness, had been dropped and not produced before court.
11. Another argument made by the learned Counsel for the appellant with regard to Exhibit-PW-17/A not being a true and correct statement of Inderjit Kaur, was that the condition of the patient was admittedly grave. She had suffered more than 90% burns and the medical evidence suggested that she was not in a condition to make any statement. The patient died within five hours and her condition remained grave throughout, as indicated by the death summary. Moreover, pathedine was administered intravenously to the patient. Pathedine has the properties of an analgesic, but at the same time, it is a sedative and / or causes euphoria. Thus, according to the learned Counsel for the appellant, the medical evidence and the record of the treatment given to the injured Inderjit Kaur, clearly indicates that she could not have been in a fit condition to give a statement. Consequently, Exhibit-PW-17/A cannot be relied upon for basing a conviction.
12. In this connection, the learned Counsel for the appellant also placed reliance on the testimony of PW-8 (Dr B.N. Reddy), who had conducted the post mortem examination, wherein he stated that Inderjit Kaur suffered neurogenic shock. Referring to the book "Medical Jurisprudence and Toxicology. by Dr K.S. Narayn Reddy, pages 353 & 354 and Godman & Gilman.s, "The Pharmacological basis of Therapeutics, Ninth Edition., the learned Counsel submitted that neurogenic shock meant immediate shock of a kind from which the patient does not recover. Referring to the latter text, the learned Counsel submitted that pathedine was like morphine and it causes not just an analgesic and sedative effect, but also causes euphoria. The learned Counsel also placed reliance on the decision in the case of
13. The learned Counsel for the appellant submitted that although PW-4 (Suresh Kumar) has been declared a hostile witness, his testimony cannot be discarded in toto. This witness had clearly stated that the appellant Kamaljit Singh had left the house before the burning incident and that the bathroom was bolted from inside. These circumstances suggest that since the appellant was not present when Inderjit Kaur suffered the burns and that as the bathroom was locked from inside, it was more likely to be a case of suicide. He also submitted that the prosecution case was that prior to the burning incident, the appellant Kamaljit Singh had beaten Inderjit Kaur. But, according to him, this is belied by the fact that the post mortem examination did not indicate any external injuries.
14. He also submitted that the defence witness DW-1 (Kumari Satvinder Kaur) and DW-2 (Kumari Gurpreet Kaur), both of whom were present in the house when the incident of burning took place, have clearly stated that their father, Kamaljit Singh, was not responsible for the death of their mother, Inderjit Kaur. He submitted that due credence should be given to defence witnesses and their testimonies cannot be discarded just because they have come in support of the defence case. He further submitted that their testimonies corroborated the evidence given by PW-4 (Suresh Kumar).
15. With regard to the letters (Exhibits P-1, P-2 and P-5), which are said to have been written by Inderjit Kaur and addressed to her father PW-6 (Khajan Singh), the learned Counsel for the appellant submitted that the credibility of these letters is doubtful. He submitted that the distance between the appellant Kamaljit Singh.s house and that of PW- 6 (Khajan Singh''s) house was only about 500-700 yards. Consequently, he raised the question as to what was the need for Inderjit Kaur to write letters when they were residing close by? Furthermore, the learned Counsel for the appellant submitted that PW-6 (Khajan Singh) has stated that none of his daughters, including the deceased Inderjit Kaur knew Gurmukhi. He also stated that he cannot read what is written in the letters (Exhibits P-1, P-2 and P-5). He also stated that he too did not know Gurmukhi and only knew Urdu. On the basis of these statements, the learned Counsel for the appellant submitted that it was unlikely that Inderjit Kaur would have written the letters (Exhibits P-1, P-2 and P-5).
16. Concluding his arguments, the learned Counsel for the appellant submitted that the letters (Exhibits P-1, P-2 and P-5) were fabricated. The scribe of the dying declaration (Exhibit-PW-17/A) was not known. There is serious doubt with regard to the fitness of Inderjit Kaur to have made any statement prior to her death and after she received the burn injuries. Inderjit Kaur suffered neurogenic shock, which is immediate and there are no chances of recovery. As a result, dying declarations allegedly made by Inderjit Kaur become very doubtful. He also contended that the so-called admitted writing of Inderjit Kaur which was compared by the handwriting expert PW-21 (Mr V.K. Khanna) was not her admitted handwriting. Consequently, for all these reasons, the prosecution has not been able to establish its case beyond reasonable doubt and, therefore, the appeal ought to be allowed and the appellant ought to be acquitted of all charges against him.
17. Mr M.N. Dudeja, the learned Counsel appearing on behalf of the State, submitted that the dying declarations, both oral and written, were consistent and a clear role has been assigned by Inderjit Kaur to her husband, the appellant herein. The dying declaration (Exhibit-PW- 17/A) mentions the presence of Inderjit Kaur''s mother-in-law and two other boys, but does not ascribe any role to them. This indicates the truthful nature of the dying declaration. He also submitted that it is a short and concise dying declaration and the scope of tutoring is also ruled out. Mr Dudeja submitted that although PW-4 (Suresh Kumar) had been declared hostile, his testimony can be looked at for the purposes of corroboration. From his testimony, it is apparent that the appellant Kamaljit Singh was present on the scene. He further submitted that the absence of the appellant Kamaljit Singh for 4 to 5 days is a relevant circumstance. Why was he absconding when his wife had received burn injuries and had died within five hours thereof ? Mr Dudeja submitted that PW-7 (Dr Deepak Mittal) also recorded the dying declaration of Inderjit Kaur on the MLC (Exhibit-PW-7/A). On the very same MLC, Dr Vinod Kumar Goel of the Burns Ward, declared her to be fit for giving a statement at 11.40 p.m. It is only thereafter that the statement (Exhibit-PW-17/A) was recorded. He submitted that even the hostile witness PW-4 (Suresh Kumar) stated that a quarrel took place between the appellant Kamaljit Singh and his wife Inderjit Kaur. He submitted that the motive behind the crime was the demand for the sum of Rs 5,000/- in cash and other demands. As those demands were not being met, the appellant set his wife Inderjit Kaur on fire. PW-10 (Baldev Singh), according to Mr Dudeja, was a genuine and truthful witness and his testimony fully corroborates the dying declaration. He submitted that the defence witnesses DW-1 and DW-2, who were only 6 years and 4 years old respectively at the time of the incident, cannot be believed on account of their tender age and on account of the fact that after the burning incident they were throughout in the influence of the appellant and his family members and the possibility of tutoring cannot be ruled out. For all these reasons, Mr Dudeja submitted that the judgment and the order on sentence ought to be confirmed and the appeal ought to be dismissed.
18. Let us consider, first of all, the issue with regard to the letters (Exhibits-P-1, P-2 and P-5). The said letters (Exhibits P-1, P-2 and P- 5) are in Devnagri script, but in the Punjabi language. The English translations of the said letters read as under:
Translation of Ex. P-1, a letter dated 12.9.1982 written by Inderjeet Kaur to her parents.
Respected father and mother,
Sat Shree Akal, everything is alright here and I pray to Shri Wahe Guru for your well being. The further news is that I am very perturbed with constant quarrel. My mother-in- law had come and had tutored Kamaljeet, whereupon, he started beating and thrashing me. On Sunday, I having finished work, when had gone to take a bath in the bathroom, he pushed me and pressed by throat with the help of strangulated a wooden phatta (board) and turned me out of the bathroom. Thereafter he (my husband) left for somewhere with Rani. He did not return to the house even in the night. He often and on ask me to bring Rs. 5000/- from my parents as he has to pay the same for television and machines. He do not allow me to speak to anyone. How long shall I continue to live in such circumstances.
Yours daughter
sd/-/Q1
Inderjeet Kaur
In English
Translation of Ex. P-2, a letter dated Nil written by Inderjeet Kaur Nagi to her parents.
Respected father and mother,
Sat Shree Akal ?
Papa? I remembering of you with sorrow heart. Rani''s father is harassing me very much. He beats and does not give the expenses for daily needs. He uses to pressurize me to bring Rs. 5000/- from my parental, otherwise he will set me ablaze. He does not allow me to speak to anyone in the street. He also does not allow me to go to my parents. house and further says that no one of my relative shall visit me. He says that bear only girls and that he will have male child by getting another marriage after burning me. He asks me to bring television and fridge from my parents house. I am very sad. (he) says that he has to offer television and fridge in dowry for his sister, so I should arrange the same from my parents house.
Yours daughter
sd/-/Q2
Inderjeet Kaur
In English
Translation of Ex. P-5, a letter dated Nil written by Smt. Inderjeet Kaur, to her parents.
Respected father and mother,
Sat Shri Akal. We are alright and I pray to Guru Nanak Dev for your well being. The further information is that the father of Raini has made my life miserable. He is demanding Rs. 5000/- and has asked me neither to visit my parents nor to meet anyone. He beats me mercilessly. He says that he will burn me after pouring (Kerosene) oil and he would remarry. I am very perturbed.
Yours perturbed daughter
sd/-
Inderjeet Kaur
(In English)
19. A reading of these letters indicates that Inderjit Kaur was very unhappy. There are references to the demands being made by the appellant Kamaljit Singh and even of him beating her mercilessly. Exhibit P-5 also contains a threat that he would burn her after pouring kerosene oil and would remarry. The letters also indicate that the appellant was unhappy with Inderjit Kaur for giving birth to only daughters and not sons. The handwriting Expert V.K. Khanna (PW-21) has given his opinion that the English signatures marked Q1 to Q3 in the said three letters were similar to the English signatures marked A1 and A2 contained in Exhibit PW-20/A. Signature A1 is from the admission form dated 12.01.1982, in respect of her daughter Gurpreet Kaur Nagi, in the nursery, in Public Montessary School. Inderjit Kaur had signed at the place marked A1 as the guardian. A2 is the signature contained in a Greeting Card sent at the time of new year.s eve. As per PW-21 (V.K. Khanna, Senior Scientific Officer, Grade-I, Central Forensic Science Laboratory, C.B.I. New Delhi), there was no significant difference between the admitted signatures marked A1 and A2 and the questioned signatures marked Q1 to Q3. He also stated that the cumulative consideration of the said signatures and points of similarity observed between them were beyond the range of accident or co-incident. The only conclusion that can be drawn from his testimony is that the signatures marked Q1 to Q3 in the said three letters were those of deceased Inderjit Kaur, which, in turn, establishes the fact that the said letters had been written by her.
20. The learned Counsel for the appellant had raised the plea that PW- 6 (Khajan Singh) could not read the said letters. He had also stated that Inderjit Kaur did not know Gurmukhi and that he only knew Urdu. These pleas made by the learned Counsel for the appellant are without substance. What PW-6 (Khajan Singh) stated has to be considered in the correct perspective. He stated that none of his daughters knew Gurmukhi. Gurmukhi is a script which is employed for writing Punjabi, just as Devnagri is the script in which Hindi is written and Arabic / Persian is the script in which Urdu and Sindhi are written. However, this does not mean that the said languages cannot be expressed in any other script. Sometimes, Hindi is written in the roman script; Punjabi was predominantly written in the Urdu script. The simplicity of Devnagri script has lead to the younger generation expressing their languages in that script. Now a days, even the language Urdu is on many occasions written in the Devnagri script. Similarly, the letters (Exhibit P-1, P-2 and P-5), though in Punjabi language, have been written in the Devnagri script. Thus, what PW-6 (Khajan Singh) has stated is correct. His daughter Inderjit Kaur did not know the Gurmukhi script. But he did not say that she did not know Punjabi. Thus, no capital can be made by the defence on the statements made by PW-6 (Khajan Singh) with regard to his daughters not knowing Gurmukhi. Insofar as PW-6 (Khajan Singh) not being able to read any other script other than the Urdu script, we cannot detract from the fact that the said witness has stated that the letters were read out to him by his other daughters. Consequently, it is clearly established that the letters (Exhibit P-1, P-2 and P-5) had been written by Inderjit Kaur to her father PW-6 (Khajan Singh) and that they disclosed her miserable plight. The question as to why she should write letters to her father when her father lived at a distance less than that of the post office, can be easily answered by indicating that she was so fearful that she did not want to be seen visiting her father.s house which was nearby and it was this reason that she bypassed her father.s house and posted those letters at the post office. This is a possible reason, there could be other reasons. Whatever be the reason, the fact remains that she wrote the letters and they were received by her father PW-6 (Khajan Singh).
21. We now come to the question of the dying declarations. The counsel for the parties had only referred to three dying declarations. One made to PW-10 (Baldev Singh); one made to Dr Deepak Mittal (PW-7) as recorded in the MLC (Exhibit-PW-7/A); and one recorded in the form of Exhibit-PW-17/A before PW-19 (Dr Vinod Kumar Goel) and PW-17 (Ram Kishan). However, we notice that there is a fourth dying declaration Exhibit-PW-19/D which had been made to Dr Vinod Kumar Goel (PW-19) at the time of admission in the burns ward. It is well-settled that a conviction can be based on a dying declaration without requiring any further corroboration provided it is of a stellar quality, in the sense that it is both authentic and truthful. A dying declaration can be oral or written and could even be in the form of gestures. If it can be established that the dying declaration was indeed made by the person who died and if it can be further established that the statement is truthful, a conviction can be based thereupon. With regard to Exhibit-PW-17/A, we find that there is some doubt as regards its authenticity. Those doubts have arisen because the prosecution has not been able to disclose as to who was the scribe of the statement. PW-17 (Ram Kishan) has stated that he did not record the statement. He also stated in his cross-examination that he does not remember who recorded the statement Exhibit-PW-17/A. He also stated that the statement is not signed by the scribe and that at the time when the statement was made by Inderjit Kaur, it was only the doctor (Dr Vinod Kumar Goel) and himself who were present and no one else. This certainly raises a conundrum. When he did not scribe the statement, PW-19 (Dr Vinod Kumar Goel) also did not scribe the statement and nobody else other than the two of them and the injured Inderjit Kaur was present, then how could the statement (Exhibit-PW-17/A) exist at all ?
22. Even the attesting witness (Sub-Inspector Gurbachan Singh) has not been produced, although he was cited as a witness. There may have been some irregularities in recording the statement (Exhibit-PW-17/A), and that by itself poses a cloud on the authenticity of the same. Therefore, Exhibit-PW-17/A cannot be made the basis of a conviction on its own.
23. We shall now consider the oral dying declaration said to have been made to PW-19 (Baldev Singh). This witness has also contradicted himself at times. The prosecution case is that it was his taxi which was used for transporting the injured Inderjit Kaur from her house to the hospital, but in his cross-examination, he has stated that he did not know who brought the taxi there. By implication, it means that the vehicle used for transporting Inderjit Kaur was not his taxi. This witness has apparently also concealed his relationship with the family of the deceased Inderjit Kaur. In his cross-examination, PW-10 (Baldev Singh) stated that he had cordial relations with Khajan Singh on account of them being neighbours. He also stated that he was not related to Khajan Singh in any manner whatsoever. However, in Exhibit-PW-10/DA, which is a signed statement made by the said witness, it is stated that the deceased Inderjit Kaur was his relative. It is apparent that he has contradicted himself on this aspect. From this, it can be inferred that PW-10 (Baldev Singh) did not want to disclose his relationship with Inderjit Kaur''s family in order to portray himself as an independent chance witness. Moreover, his account of the incident seems somewhat unbelievable. According to him, he was passing by the front of the house of the accused on 12.05.1983 at about 9.30 p.m. He heard a noise there and found that many persons had collected. He then went inside the house of the accused and at that time he saw Inderjit Kaur burning inside the bathroom and crying. He has also stated to have seen Balbir Kaur, the mother of the appellant Kamaljit Singh and two other boys, who were not Sikhs, pouring water over Inderjit Kaur. He stated that, on his asking, Inderjit Kaur told him that her husband Kamaljit Singh had dragged her by her hair from the kitchen to the bathroom, poured kerosene oil over her and set her on fire and thereafter ran away from the back door. He then stated that he alongwith two or three other persons of that mohalla, removed Inderjit Kaur to the hospital in a taxi which was brought by some persons. Even though we may not entirely believe the testimony of PW-10 (Baldev Singh) with regard to the manner of occurrence and the factum of Inderjit Kaur having made the dying declaration to him, this much is clear that PW-10 (Baldev Singh) was the person who took Inderjit Kaur to LNJPN Hospital.
24. The fact that PW-10 (Baldev Singh) brought Inderjit Kaur to LNJPN Hopsital is also recorded in the MLC (Exhibit-PW-7/A). What is significant is that the said MLC clearly records the alleged history of Inderjit Kaur as having been burnt by her husband after pouring kerosene oil. Significantly, it is also recorded that the history was given by the patient herself and that she was conscious. The MLC (Exhibit-PW-7/A) has been proved by Dr Deepak Mittal (PW-7), who is the person who made the same. His testimony has not been shaken despite him being subjected to cross-examination. The learned Counsel for the appellant had tried to make capital out of the fact that the said witness, namely, PW-7 (Dr Deepak Mittal) stated that a person who responds sufficiently to a prick given on the foot or any other part of the body is termed as conscious. But the said witness has also clarified that while showing such a patient to be conscious, it is usually also mentioned as to whether the patient was drowsy or delirious in case such a patient was not obeying oral commands. From this, it cannot be said that the statement made by the patient herself before PW-7 (Dr Deepak Mittal) was not made by her in a conscious state of mind. There is nothing on record to suggest otherwise. The learned Counsel for the appellant had also stated that Dr Deepak Mittal was not a fully qualified doctor and, therefore, no sanctity ought to be placed on the recording in the MLC (Exhibit-PW-7/A). PW-7 (Dr Deepak Mittal) has clarified in his cross-examination that he had joined the Casualty Department of the said hospital on 01.04.1983. At that time, he was doing his "House Job. having completed his internship on 31.03.1983. He had, however, not so far been given the M.B.B.S. degree. Whether PW-7 (Dr Deepak Mittal) had received the M.B.B.S. degree or not, is not of much significance in the present case. What we have to see is whether Inderjit Kaur made the statement as recorded in MLC (Exhibit- PW-7/A) or not ? PW-7 (Dr Deepak Mittal) is a neutral and independent witness and there is nothing which has come in evidence to indicate that what he has recorded is not what Inderjit Kaur stated. Therefore, this dying declaration cannot be pushed aside.
25. We now come to the fourth dying declaration which has been recorded by PW-19 (Dr Vinod Kumar Goel) himself. The said dying declaration is exhibited as Exhibit-PW-19/D and forms part of the case- sheet at the burns ward. As per the said dying declaration, which has already been set out above, Inderjit Kaur stated that her husband had quarrelled with her and beaten her and then dragged her to the bathroom and sprinkled kerosene oil on her body and set her on fire. His mother had also helped him in the above process. It is only in this dying declaration that a role has been ascribed to the mother-in-law also. PW-19 (Dr Vinod Kumar Goel) categorically stated in his examination-in-chief that "the patient at the time of her admission had also made statement before me. It is recorded in case-sheet at page 10. It is Exhibit-PW-19/D. It is also in my hand". It is interesting to note that although PW-19 (Dr Vinod Kumar Goel) has been subjected to lengthy cross-examination on technical aspects, no questions have been put to him in such cross-examination with regard to Exhibit-PW-19/D. Thus, this dying declaration (Exhibit-PW-19/D) has gone unchallenged. What is of great significance is that it is PW-19 (Dr Vinod Kumar Goel) himself, who had, by his endorsement Exhibit-PW-19/A on the MLC (Exhibit-PW-7/A), certified that the patient is fit to give her statement at 11.40 p.m. on 12.05.1983. There is nothing on record to suggest that the statement recorded by PW-19 (Dr Vinod Kumar Goel) in Exhibit-PW-19/D was not the correct and authentic statement made by Inderjit Kaur.
26. We are now left to consider the question of whether the administering of pathedine would have affected the mental faculties of Inderjit Kaur in such a manner that whatever she stated could be termed as her imagination in a state of delirium or semi-consciousness. It is important to note that the dying declaration, as recorded in Exhibit-PW- 7/A, was made at a stage prior to Inderjit Kaur being sent for admission in the burns ward, i.e., prior to 11.10 p.m. The pathedine injection was given to Inderjit Kaur in the burns ward and therefore, there was no question of pathedine affecting her statement made to Dr Deepak Mittal, as recorded in the MLC (Exhibit-PW-7/A).
27. With regard to the dying declaration as recorded in Exhibit-PW- 19/D, it must be remembered that it was made at the time of admission in the burns ward which was at 11.10 p.m. From page 5 of the case- sheet (Exhibit-PX-1), it is apparent that the pathedine injection of 100 mg was given at 1.30 a.m. on 13.05.1983. It is obvious that Exhibit- PW-19/D had been recorded prior to the administering of pathedine injection and, therefore, the question of its sedative and euphoric effects having taken place does not at all arise. In fact, even the dying declaration (Exhibit-PW-17/A) had been recorded between 11.40 p.m. on 12.05.1983 and 12.05 a.m. on 13.05.1983, i.e., much prior to the giving of the pathedine injection. Thus, the arguments advanced by the learned Counsel for the appellant on the effects of pathedine injection are wholly irrelevant.
28. Considering the totality of the circumstances, even if we are to doubt the authenticity of the dying declarations made to PW-10 (Baldev Singh) and the dying declaration (Exhibit-PW-17/A), the correctness of the dying declarations made to Dr Deepak Mittal at the time of admission at LNJPN Hospital, as recorded in Exhibit-PW-7/A as also to PW-19 (Dr Vinod Kumar Goel), as recorded at the time of admission in the burns ward vide Exhibit-PW-19/D, stand established. This, coupled with the established motive, as indicated by the letters (Exhibits P-1, P-2 and P-5), is enough to prove the case of the prosecution beyond reasonable doubt. We are also in agreement with the submissions made by Mr Dudeja that the possibility of tutoring the two defence witnesses cannot be ruled out and, therefore, reliance cannot be placed on their testimonies. As a result, the conviction and sentence awarded by the trial court are upheld.
The appeal is dismissed. The appellant will be given the benefit of Section 428, CrPC.
