1989 PLP 1475 (MLD)

"We have doubted his presence at the time of the occurrence. The manner in which his name appears in the statement of Balwinder Kaur shows that she was tutored to mention her father as a witness. It is clear from this that she was amenable to the extraneous influence about the details of the incident and the panel of the witnesses. She had introduced her father as a false witness in her statement. When one of the major details of her statement is false, it is difficult to accept that the dying declaration was truthful. The statement of a dying person, before it is accepted, has to be wholly truthful and beyond suspicion and immune from any extraneous influence regarding sprinkling of kerosene oil on her, before she was set on fire, she is not corroborated by Dr. Jaswinder Singh P.W. 4 who did not find any smell of kerosene oil from her body at the time when he gave her first aid. For these reasons, we do not place reliance on the statement of Balwinder Kaur deceased which was recorded after a great delay."

11. With these and other conclusions, the High Court acquitted the accused.

12. Before us, it is contended inter alia, that the High Court has misconstrued the evidence and dying declaration. It is an error to state that the deceased had introduced her father as a false witness in her statement. In fact, she did not state that her father was an eye-witness to the occurrence. It is also argued that there is no basis for the conclusion of the High. Court that Nasib Singh could not have reached Bhogpur at any time after the incident.

13. On behalf of the accused, it is argued that the so-called dying declaration made to AST should not be believed. There was ample opportunity for the ASI to secure a Magistrate to record the dying declaration but no attempt was made by him in that connection either at Jullundur or at Ludhiana.

14. We have carefully perused the records and gave our anxious consideration to contentions urged by both sides. This is undoubtedly a case of dowry death. The marriage took place on Nov. 28,1984. Within three months, the unfortunate death of the bride has taken place. The suggestion of the accused that the death might have been by an. accident or suicide has absolutely no basis to support. Motive for the crime as been satisfactorily established by the evidence of Sarwan Singh, P.W.

7. We have perused his evidence. He has narrated all that his Aster had complained to him three days prior to the occurrence. The alleged demand of Rs. 16,000 by the accused, in the context, cannot be discounted. After the marriage he could not find finances to go abroad. The wife was convenient for him to extract money. The evidence of P. W. 7 receives full corroboration from the dying declaration as well.

15. It is true that Nasib Singh has deposed that he was an eye-witness to the occurrence. He must have overplayed his part and we may exclude his evidence. But that by itself is no ground to throw the case away if it is otherwise true. Recently, in State of U.P. v. Anil Singh (Cr. A. No. 671-672 of 1980 on 26 Aug. 1988 (reported in AIR 1988 SC 1998. at p.2002) Was observed: "That invariably the witnesses add embroidery to prosecution, story, perhaps for the fear of being disbelieved. But, that is no ground to throw the case overboard, if true m the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses." 15A. The High Court appears to have committed am error stating that Balwinder Kaur has introduced her father in the dying declaration as an eye witness to the occurrence. It is better that we set out hereunder the dying declaration (Ex. P.G.) in question: "On 28th Nov. 1984, I was married to Shri Amarjit Singh son of Sant Ram, R/o Home No.86-D, Mill Quarter, Bhogpur. After the marriage, I have been residing at the house of my in-laws. I had gone to my parents once only. Previously my husband had gone abroad. Now, he is residing at Bhogpur. He does not do any work. About one and a half weeks back, my brother Sarwan Singh had come to take me. But, my in-laws misbehaved with him and insulted him. They did not allow me to accompany him. Three days prior to the visit of my brother, my husband Amarjit Singh had pressed my neck by putting cloth into my mouth and asked me to bring Rs. 16,000 from my parents. Thereafter, on 20th March 985 at 8-00 a.m. while I was working in the kitchen in my house, my husband set me on fire by sprinkling kerosene upon me. My clothes caught fire. He rushed outside. On hearing my shrieks the neighbours gathered there who extinguished the fire and to whom I do not know. Meanwhile, my father Shri Nasib Singh also came there. They removed me to Hospital at Bhogpur. The cause of grudge is that my husband wanted me to bring money from my parents as he was to go abroad. No other person was present m the home when my husband set me on fire. I have heard and understood the statement. It is correct. Attested Exhibit PG/1 Exhibit PG/2 Sd/- Kashmira Singh Sd/- B Iwinder Kaur Sd/- Balwinder Kaur AST (with her R.T.I.) (with her L.T.L.)

16. It will be seen from the above statement that Balwinder Kaur did not state that her father was present when her husband set her on fire. She has stated that she rushed outside with flames. She cried. On hearing her shriks, the neighbours gathered and extinguished the fire. She could not remember who they were. She has further stated: "Meanwhile my father Shri Nasib Singh also came there. They removed me to hospital at Bhogpur." It may be recalled that the incident occurred at 8-00 a.m. She was taken to Bhogpur Civil Dispensary at 10-15 a.m. The dispensary at Bhogpur was just about 200 yards from the house. She was, therefore, lying in the house, for about two hours. Nasib Singh might have reached there in that interval. It might be her impression when she saw him. His presence with his son PW 7 was admitted at the Jullundur hospital and thereafter at Ludhiana.

17. The evidence of Avtar Singh, D.W. 1 has to be referred only to be rejected. He is a total liar, as the trial court has correctly said so. He has stated that. when he came to the house of accused, it was bolted from inside. If that is so, he could .not have seen Balwinder Kaur in flames. He could not have entered the house to help her. He has stated that he went to Bhogpur Dispensary alongwith the accused. But he did not tell the doctor there that he had sustained burn injuries while extinguishing the fire on the deceased. He is co-worker in the sugar mill at Bhogpur where the father of accused also works. He has produced a certificate from doctor of the Sugar Mill Dispensary stating that he had superficial burn injuries in his hand. But the doctor has not been examined to speak to the contents of the certificate. The trial Court, therefore, was justified in discarding his testimony and the certificate as wholly unreliable.

18. It is true as this Court has observed in Dalip Singh v. State of Punjab, (1979) 4 SCC 332; (AIR 1979 SC 1173) that the practice of Investigating Officer himself recording a dying declaration during the course of investigation brought A not to be encouraged and it would be better to have dying 'declaration recorded by Magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of each case.

19. In this case, AST belongs to the Police Station at Bhogpur. Upon intimation by wireless message that Balwinder Kaur was admitted in Ludhiana Hospital, he straight away went to the place. He met the Doctor and recorded her statement. The F.I.R. was issued on the basic of that statement. It was then an offence under S.307, I.P.C. The investigation went on accordingly to Bhogpur. The Police Station at Bhogpur is 92 kms from Ludhiana and we are told that B Bhogpur is in a different district altogether. In these circumstances, we cannot find fault with the AST for not getting the dying decl4ration recorded by a Magistrate.

20. The question now to be considered is whether the dying declaration was free from influence and faithfully recorded? As we have earlier stated that the couple got married just three months prior to the murder, there appears to be no reason for Balwinder Kaur to implicate her newly married husband as an accused in the case. She has given reasons why she was set on fire. She had stated that she was subjected to ill-treatment and harassment, by her husband for not satisfying the dowry demand. Apparently, there is no reason to discard these allegations.

21. The evidence of A.S.I. P.W. 9 remains unchallenged. It is corroborated by the testimony of Doctor P.W.

3. He has certified that Balwinder Kaur was in a sit condition to make statement. He has testified that A.S.I. had correctly recorded the statement made by Balwinder Kaur. He has also stated that the statement was read over to Balwinder Kaur before she affixed her thumb impression. The Doctor who was on duty and who treated Balwinder Kaur has signed the statement. He is the most acceptable witness in this case. His evidence ought not to have been discarded by the High Court.

22. The evidence record also indicates that there was none else in the room except the Doctor when AST recorded the dying declaration. We have, therefore, no reason to doubt the correctness and authenticity of the dying declaration in question.

23. As to the legality of the dying declaration, this case is on a better footing. It was recorded before investigation commenced. Even the F.I.R. was issued later. The ASI did not record the dying declaration in the capacity of an Investigating Officer. A dying declaration recorded under similar circumstances has been accepted by this Court in Munnu Raja v. State of Madhya Pradesh (1976) 2 SCR 764; (AIR 1976 SC 2199), Chandrachud, J. speaking for this Court observed at p.767 (of SCR); (at pp.2201-02 of AIR): "In regard to the second dying declaration Ex. p.14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a judgment of this Court in Balak Ram v. State of U.P. The error of this argument consists in the assumption that the dying declaration was made to an investigation officer. The statement, Ex, P.14, was made by Bahadur Singh at the police station by way of a first information report. It is after the information was recorded, and indeed because of it, that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House Officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has, therefore no application."

24. In the result, we allow the appeal, reverse the judgment of the High Court and restore that of the trial Court. The accused is in custody. He shall undergo the remaining part of the sentence. M.B.A./18/F.C. Appeal allowed.