Criminal Appeal No.1548-SB of 2003 v. State of Haryana

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Vipan Kumar Bali, Advocate, amicus curiae, for the appellant. Mr. Manish Deswal, Deputy Advocate General, Haryana. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction and the sentence order dated 30.4.2003 passed by the learned Additional Sessions Judge, Karnal, whereby appellant Puran Singh was convicted and sentenced under Sections 306 and -2- Criminal Appeal No.1548-SB of 2003. 376 of the Indian Penal Code (for short `the Code'). For the former offence, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/- in default whereof to undergo further simple imprisonment for six months. For the latter offence also, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/- in default whereof to undergo further simple imprisonment for six months. Both the substantive sentences were ordered to run concurrently. In short, the case of the prosecution is that on

11.3.2002, a ruqa was received from Community Health Centre, Assandh, at the Police Station to the effect that Harjit Kaur daughter of Mohar Singh was admitted there as a poisoning case. At this, Assistant Sub Inspector Raj Kumar reached Community Health Centre, Assandh. The Doctor on duty opined that the patient was fit to make statement. Since there was “Khulla Darbar” at Karnal and no Executive Magistrate was available, Assistant Sub Inspector Raj Kumar moved an application to the Doctor concerned to record the statement of the patient. The Doctor recorded the statement of Harjit Kaur. She reported that her uncle Puran Singh (appellant) used to beat her up. He used to molest her. Fed up with his behaviour, she had consumed a tablet which was kept in the wheat to protect it from insects. Harjit Kaur further reported that accused used to rape her and her mother. The family members had advised the accused to behave but he had not changed -3- Criminal Appeal No.1548-SB of 2003. his ways. Accused had started harassing them after the death of her father. On the day of occurrence at about 3.30 P.M, she had taken a poisonous tablet. She further stated that the accused- appellant had raped her eight/ten times. She had informed about this to her mother. The accused had beaten up her mother also. On the basis of this report, formal First Information Report was recorded. During the investigation, Harjit Kaur died. The accused- appellant was arrested. After completion of investigation and due formalities, challan was presented against the appellant in the Court of the Ilaqa Magistrate, who committed the case to the Court of Session. The accused was charged under Sections 306 and 376 of the Code. He did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined as many as fourteen witnesses, namely, Dr. Sanjeev Grover (P.W.1), Dr. M.K. Rana (P.W.2), Head Constable Jagbir Singh (P.W.3), Constable Major Singh (P.W.4), Head Constable Mange Ram (P.W.5), Constable Vinod Kumar (P.W.6), Constable Veer Shakti Singh (P.W.7), Constable Ramesh Kumar (P.W.8), Ajit Singh (P.W.9), Manjoor Singh (P.W.10), Inspector Kaptan (P.W.11), Dr.H.S. Sehgal (P.W.12), Assistant Sub Inspector Hukam Singh (P.W.13) and Assistant Sub Inspector Raj Kumar (P.W.14). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the -4- Criminal Appeal No.1548-SB of 2003. allegations against him. In his defence, the appellant examined Rishi Pal (D.W.1) and Shisha Singh (D.W.2). He also placed on record a copy of the plaint filed in a suit by Harbans Kaur against him and others as Exhibit D.4. I have heard Mr. Vipan Kumar Bali, Advocate,amicus curiae, appearing for the appellant and Mr. Manish Deswal, Deputy Advocate General, Haryana, appearing for the State and have gone through the records of the case. The accused-appellant is real brother of Mohar Singh, father of Harjit Kaur (since deceased). Accused-appellant Puran Singh had become a `Nihang'. Mohar Singh died in August, 2001. After the death of Mohar Singh, there was no male member in the family. Mohar Singh had young children. It was decided by the brother-hood that the accused should stay at the `Dera' of Mohar Singh (deceased) and should look after his family. The accused, thereafter, started residing with the family of Mohar Singh. However, in course of time, he had started raping Joginder Kaur, wife of Mohar Singh and mother of Harjit Kaur (deceased). The accused had also started raping Harjit Kaur. He used to beat Harjit Kaur and her mother Joginder Kaur. Fed up with this, Harjit Kaur committed suicide. As noticed above, the dying declaration of Harjit Kaur (deceased) is on record. It is Exhibit P.G). It was recorded by Dr.M.K. Rana (P.W.2) at Community Health Centre, Assandh on

11.3.2002. This dying declaration was made by Harjit Kaur -5- Criminal Appeal No.1548-SB of 2003. when she was fit to make the statement. A certificate to this effect was also given by Dr.M.K. Rana (P.W.2) on the dying declaration (Exhibit P.G). The same is Exhibit P.G/1. The dying declaration was recorded by the Doctor as no Executive Magistrate was available on that day as there was “Khulla Darbar” and they had gone there. In the dying declaration (Exhibit P.G), Harjit Kaur stated that her uncle Puran Singh (appellant) used to beat her up; that he used to molest her; and that fed up with his behaviour, she had consumed a tablet which was kept in the wheat to protect it from insects. Harjit Kaur further stated that accused used to rape her and her mother; that the family members had advised the accused to behave but he had not changed his ways; and that the accused had started harassing them after the death of her father. She further stated that the accused-appellant had raped her eight/ten times. She had informed about this to her mother. The accused had beaten up her mother also. Now coming to the question whether the dying declaration (Exhibit P.G) made by Harjit Kaur is a reliable piece of evidence or not, the Hon'ble Supreme Court, in the case of Uka Ram v. State of Rajasthan, 2001 (2) RCR (Criminal) 416 held that before relying upon a Dying Declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the Dying Declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any -6- Criminal Appeal No.1548-SB of 2003. further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence. A Division Bench of this Court in the case of Manphool (since deceased) and Jagat v. State of Haryana, 2007 (3) RCR (Criminal) 232 observed that a Dying Declaration has to be accepted to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross- examination and once the Court has come to the conclusion that the Dying Declaration was the true version as to the circumstances to the death, then there is no question of further corroboration, but if the Court after examining the Dying Declaration, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity then, without corroboration it cannot form the basis of conviction. I have perused the dying declaration (Exhibit P.G) made by Harjit Kaur before Dr.M.K. Rana (P.W.2) at Community Health Centre, Assandh on 11.3.2002. As is evident from the certificate (Exhibit P.G/1) on the dying declaration made by Dr.M.K.Rana, she was fit to make the statement. There is no reason to disbelieve the dying declaration. It is not expected that the Doctor on duty would make additions or alterations in recording the statement/ dying declaration without any rhyme or reason. Dr.Sanjiv Grover (P.W.1), in the company of Dr.Umesh -7- Criminal Appeal No.1548-SB of 2003. Mehta and Dr. (Mrs.) Naresh Sauna, had conducted autopsy on the dead body of Harjit Kaur, aged about 17 years. On seeing the report of histopathologist (Exhibit P.B), report of the Forensic Science Laboratory (Exhibit P.C) and report of the Chemical Examiner (Exhibit P.D), it was opined by the Doctors that the deceased had died on account of poisoning. As regards the commission of rape with the deceased, it was reported that the possibility of rape could not be ruled out. The opinion of the doctors in this regard is Exhibit P.A/2. The hymen in this case was absent. Old tear was present. Uterus was of normal size. It was opined by the Doctors that any lady who has got an old tear and whose hymen is absent, is subjected to sexual intercourse frequently. Dr.H.S.Sehgal (P.W.12) had medico-legally examined the accused and had declared him fit to commit sexual intercourse. The facts and circumstances of the case, discussed above, show that Harjit Kaur had died on account of consuming poisonous substance and that she had been subjected to sexual intercourse by none else than the real brother of her father i.e appellant Puran Singh. The offences committed by the appellant clearly come within the purview of Sections 306 and 376 of the Code. In view of the above, the prosecution has been able to bring home the guilt of the accused beyond all reasonable doubts. The impugned judgment of conviction is, accordingly, upheld. The sentence awarded to the appellant also commensurates with the -8- Criminal Appeal No.1548-SB of 2003. offence committed by him. Resultantly, this appeal is hereby dismissed being without any merit. February 23,2010. ( MOHINDER PAL ) JUDGE