Jaswant Kaur v. State Of Punjab

V.K. BALI, J.

(1) JASWANT Kaur wife of Mohinder Singh, the appellant herein, was tried under Section 302 of the India Penal Code for having committed the murder of her young daughter-in-law, who was married to Tarsem Singh, her son, only 7-8 months prior to when she was burnt alive on March 21, 1992. The learned Sessions Judge, Amritsar, vide his judgement dated April 4, 1994, held her guilty for the offence under Section 302, IPC and convicted her to undergo imprisonment for life and to pay a fine of Rs. 2000/-, in default whereof she was to further undergo RI for six months. It is against this order of conviction and sentence that the present appeal has been filed by Jaswant Kaur. Gobind Singh son of Shri Darbara Singh has filed Crl. Revision No. 442 of 1994 for enhancement of sentence. This order, thus, shall dispose of both these matters i. e. Crl. Appeal No. 228-DB of 1994 as also Crl. Revision No. 442 of 1994.

(2) THE occurrence leading to unfortunate death of Kuldeep Kaur, as per the prosecution version, took place at 11 AM on March 21, 1992 at Gate Bhagatanwala, City Amritsar, which is at a distance of one kilometre from Police Station C Division, Amritsar. The investigating agency moved in the matter on the information given to it by Gurbinder Singh, PW 5, on March 21, 1992 itself at 4. 25/4. 50 PM. The special report was sent to the Magistrate concerned on 25-3-1992 at 10. 10 AM. Kuldeep Kaur succumbed to her burn injuries on March 27, 1992, F. I. R. , Ex. PH, as referred to above, came to be recorded on the statement of Gurbinder Singh, who stated that he was resident of Gate Bhagatanwala and was running a meat shop. About 7-8 months ago, Kuldeep Kaur d/o Nath Singh, resident of village Randhiala Police Station Kot Isse Khan, who was his sisters daughter, was married to Tarsem Singh son of Mohinder Singh, Gold Smith, resident of Gali No. 1, House No. 122/9, Gate Bhagatanwala. Tarsem Singh, who was Goldsmith by occupation, had gone to Ferozepur, in connection with his business. About 2-3 months back, Kala Singh son of Udham Singh, resident of Gali Tellian, Gate Hakima, who was brother of Jaswant Kaur, mother-in-law of Kuldeep Kaur, had died. It was general rumour about the death of Kala Singh that he had committed suicide. About one month back Jaswant Kaur told her daughter-in-law Kuldeep Kaur that she had told Kala Singh that Kala Singhs mother Kartar Kaur was a lady of loose character, and due to shame Kala Singh had committed suicide. Kuldeep Kaur had told him and his brother Mohinder Singh and they had tried to convince Jaswant Kaur that this fact was not disclosed by Kuldeep Kaur but Jaswant Kaur nursed a grudge about it and she used to quarrel with Kuldeep Kaur. On the eventful day at about 11 AM, he was going towards the house of Tarsem Singh. When he reached near the door of Tarsem Singh, he heard cries of Kuldeep Kaur coming from inside the house. On going inside, he found that Jaswant Kaur was standing with a plastic can of kerosene while the clothes of Kuldeep Kaur were set on fire. He tried to put out the fire and in the meantime Jaswant Kaur went in the street out of the room. After some time, Sher Singh son of Gurdial Singh, who was husband of his sister, came there. After arranging conveyance, Kuldeep Kaur was admitted in Guru Nanak Dev Hospital. He further stated that Jaswant Kaur had set on fire Kuldeep Kaur by pouring kerosene on her with the intent to kill her. This statement was attested by ASI Surjit Singh, Incharge Police Post Gate Hakima, Amritsar, who recorded the same when he was present at chowk Bhagatanwala along with other police officials in connection with patrol duty. He had also received an information on wireless that Kuldeep Kaur was lying admitted in the hospital in a burnt condition. He reached Guru Nanak Dev Hospital where he obtained the opinion of the doctor in writing that Kuldeep Kaur was unfit to make statement. He recorded the statement of aforesaid Gurbinder Singh which was reduced into writing and explained to him. As by that time Kuldeep Kaur had not died, a case under Section 307 of the Indian Penal Code came to be registered.

(3) PW 1 Dr. Nirmal Dass, Medical Officer, Department of Forensic Medicine, Medical College, Amritsar, conducted post-mortem on the dead body of Kuldeep Kaur on March 28, 1992 at 12. 10 PM. On examination, he found that the body was moderately built. The rigor mortis was present throughout the body. The whole body was swollen. There was partial bloating of the facial features. Venesection was done on the dorsum of the left foot. Superficial to deep burns were present on face, neck, shoulders, both upper limbs and hands, front and back of chest and abdomen, sparing the gluteal regions, pubic region, front and back of both the thighs, both lower legs, sparing 3/4th of the front of left leg and soles of feet. Pus formation was present at numerous sites of the burns, singing of hair seen in the scalp in the region of forehead temporal and occipital regions. The joora was present in the centre of the head, singing also seen at the eyebrows, eye lashes and pubic area, line of redness was present at the junction of burnt and unburnt skin. Peeling of skin was seen at hands and feet. Pleura, brain, brain membrane, larynx were congested, both lungs were congested, muco-purulent discharge came out on various cut Sections from both the lungs, right side of heart was full of fluid and clotted blood and so were the large vessels. Stomach was congested and contained 50 cc of fluid material, small intestines were congested and contained chyme, liver, spleen, kidneys were congested. The uterus was enlarged in size and contained 22 cc of clotted blood only. The doctor opined that the cause of death in this case was the septicaemic shock as a result of burns which were ante-mortem and sufficient to cause death in the ordinary course of nature. Dr. Tarlochan Singh, Post-Graduate Student, Department of Surgery, Guru Nanak Dey Hospital, Amritsar was examined as PW 2, who proved bed head ticket of Kuldeep Kaur wherein her admission was shown on March 21, 1992 at. 1. 05 PM. He stated that after her admission, on March 22, 1992 she gave statement in his presence to Shri Manjit Singh, Executive Magistrate, Dr. Sunil Dhawan was also present at that time. The statement was recorded between 6. 30 and 7 PM. Kuldeep Kaur had dictated what she had to say and the same was reduced into writing by ASI Surjit Singh. The text of what had been written was read over to Kuldeep Kaur, who had thumb marked the same in token of its correctness. The statement was attested by him, Dr. Sunil Dhawan and Shri Manjit Singh, Executive Magistrate. The same was Ex. PE. On March 21, 1992, on the application of Surjit Singh, ASI, he had declared Kuldeep Kaur unfit to make statement vide his report, Ex. PF. Dr. Sunil Dhawan was examined as PW 9, who stated that on March 22, 1992 he was posted in Guru Nanak Dev Hospital, Amritsar, Surgery Unit No. 8 and that on that day Kuldeep Kaur wife of Tarsem Singh was admitted in the hospital. He further stated that statement of Kuldeep Kaur was written in his presence and in the presence of one Magistrate and Dr. Tarlochan Singh by a police officer. The Magistrate was asking the questions and the police officer was transcribing the answers. On the completion of her statement, thumb impression of Kuldeep Kaur was obtained on the transcription at point a and the same was attested by him, Dr. Tarlochan Singh and Shri Manjit Singh, Executive Magistrate and ASI Surjit Singh. Manjit Singh, Naib Tehsildar, Ajnala, when appeared as PW 3, stated that on March 22, 1992 he was posted as Naib Tahsildar, Amritsar and on receipt of orders from Shri L. B. Hans, S. D. M. , Amritsar, he had gone to Guru Nanak Dev Hospital, Amritsar and recorded the statement of Kuldeep Kaur. Whatever was stated by Kuldeep Kaur was dictated by him to ASI Surjit Singh in the presence of Dr. Sunil Dhawan and Dr. Tarlochan Singh and after the same was complete, it was read over to Kuldeep Kaur and she thumb marked the same at point a on Ex. PE in token of its correctness. During the period when her statement was recorded both the doctors remained present and Kuldeep Kaur remained conscious. He further stated that the statement was made voluntarily by Kuldeep Kaur and she had not been compelled by any one to make a statement. Ex. PE was attested by him and both the doctors. Gurbinder Singh appeared as PW 5 and reiterated the version given by him while his statement was recorded by ASI Surjit Singh. Natha Singh, father of Kuldeep Kaur, appeared as PW 6. He sated that he was informed by his relations that his daughter Kuldeep Kaur had been burnt alive by her mother-in-law after pouring kerosene on her and that she had been admitted in the Hospital. On March 22, 1992 he reached the hospital where he met his daughter, who told him that her mother-in-law had quarrelled with her and had set her ablaze. He stated that statement of Kuldeep Kaur was recorded in his presence and two doctors by an Executive Magistrate. On that day, his daughter had a miscarriage and gave birth to a dead male child. He further stated that his daughter had died on March 27, 1992. The way and manner in which the investigation proceeded in the matter was provided by ASI Surjit Singh. He stated that on receipt of an information, he reached Guru Nanak Dev Hospital, Amritsar where Kuldeep Kaur was admitted as an indoor patient on account of burn injuries on her person. He obtained the opinion of the attending doctor, Ex. PK, to the effect that Kuldeep Kaur was unfit to make a statement. He recorded the statement of Gurbinder Singh and after making his endorsement, he sent it to the police station for recording formal FIR which was recorded by SI Hargans Singh. He also went to the spot and prepared rough site plan, Ex. PL. From the spot, he picked up a plastic can, broken bangles, match box and pieces of burnt clothes vide memo Ex. PJ. He got the place of occurrence photographed and recorded the statements of witnesses. On March 22, 1992 he again obtained the opinion of the doctor, Ex. PN, declaring her fit to make a statement and as such he recorded her statement in the presence of Shri Manjit Singh, Executive Magistrate and Dr. Sunil Dhawan and Dr. Tarlochan Singh. The Magistrate was asking the questions and he was transcribing the answers into document, Ex. PE. After the completion of the statement. Kuldeep Kaur signed it and the same was attested by Shri Manjit Singh, Dr. Tarlochan Singh and Dr. Sunil Dhawan and himself. He also prepared the inquest report, Ex. PC in which he recorded the statements of Mohinder Singh and Natha Singh and collected the bed head ticket, Ex. PD and sent the dead body for post mortem examination along with request Ex. PB. He arrested the accused on April 2, 1992.

(4) THE appellant when examined under Section 313 of the Code of Criminal Procedure stated that she was innocent and was not at home when Kuldeep Kaur accidentally caught fire. She came to know about the incident only when Kuldeep Kaur was being taken to the hospital by her husband Mohinder Singh in an Ambulance Van of Sewa Society fire Brigade. Her husband herself and one Tarlok Singh, their neighbour, took Kuldeep Kaur to Guru Ram Dass Hospital. Her husband informed Surbinder Singh, Mohinder Singh and Sher Singh etc. Thereafter, Gurbinder Singh etc. , with the help of police, took Kuldeep Kaur from Guru Ram Dass Hospital to Guru Nanak Hospital and a false case was registered against her at their instance. She further stated that her mother was more than 80 years old and as such there could not be any question of her being characterless. Thus, the story regarding motive was concocted. Kuldeep Kaur was tuitored by her relatives Gurbinder Singh etc. to make statement against her which now had become a dying declaration. The appellant led evidence in defence. Ram Asra is DW 1, who stated that on March 21, 1992 he received a telephonic message at 11. 20 PM from Kallu Da Akhara, inside Bhagtanwala, to the effect that a girl had caught fire and that they should send an ambulance. He entrusted Tarlok Singh with the ambulance to the said address and entry in that regard was made in the register. In cross-examination, he stated that the name of person, who gave the money, was indicated as Mandar Singh, on the receipt Ex. DW 1/c. He further stated that the receipt was not in his hand nor the same was scribed in his presence. DW 2 Tarlok Singh, Driver, Sewa Society, Amritsar, stated that on March 21, 1992, after receipt of a telephonic message, he had taken the ambulance to Gali No. 1, Bhagatanwala Gate, Amritsar where he found one Tarlok Singh and the father-in-law of deceased Kuldeep Kaur. Both these persons had taken the deceased to Guru Ram Dass Hospital, Amritsar. On the way, they had met mother-in-law of the deceased i. e. the appellant just after passing the crossing and she had accompanied them. He further stated that he had received a sum of Rs. 50/- as fare charges from one Ram Bagh, again said, from a person who was accompanying them. In his cross-examination he stated that he did not know the father-in-law and mother-in-law of the deceased earlier. He admitted that receipt, Mark A, did not indicate any address. He further stated that when receipt Ex. DW 1/a was filled in, only Ram Singh was present. He, however, denied the suggestion that he had given the name of mother-in-law at her instance, and that he had wrongly indicated the presence of father-in-law. DW 3 is Mohinder Singh, husband of the appellant. He stated that on March 21, 1992 there was a kirtan in their Gali. He and Tarlok Singh had gone to attend the Kirtan. There they heard some shrieks coming from their house and he returned home and put out the fire. The fire was engulfing Kuldeep Kaur, his daughter-in-law. He asked Tarlok Singh to get a bus of Sewa Samiti. They removed Kuldeep Kaur in the bus belonging to Sewa Samiti to Guru Ram Dass Hospital and on the way they met Jaswant Kaur i. e. the appellant and also asked her to accompany them. On reaching hospital, the driver of the bus had given receipt Ex. DW 1/c for Rs. 50/- and after leaving his wife there, he came to inform the relations of Kuldeep Kaur. Thereafter, Mohinder Singh, maternal uncle of Jaswant Kaur, removed Kuldeep Kaur to Guru Nanak Dev Hospital with the help of the police. In cross-examination he stated that Tarlok Singh, who had accompanied him to Kirtan was not the driver of the bus of Sewa Samiti. He further stated that before he reached the house, no other person had arrived there. He had not seen Sher Singh and Gurbinder Singh at their house after the occurrence. He did not know the names of other persons who had followed him to his house. He did not know whether any one of those persons had appeared before the police because he had gone with Kuldeep Kaur. He further stated that Kirtan was taking place at a distance of 10 feet from his house. Near the place where Kirtan was being held there were houses of Thakar Singh, Pritam Singh and others. On the day of occurrence, however, none of them was present in their house when incident took place. Near the place where his daughter-in-law was burnt, no plastic can was lying. The stove was still burning. He denied the suggestion that by the time he reached the house, Kuldeep Kaur had already been removed to the hospital by Gurbinder Singh and Sher Singh. DW 4 Tarlok Singh stated that he was owner of a truck and on March 21, 1992 he was in front of his house along with S. Mohinder Singh. They heard cries coming out of the house of Mohinder Singh and ran to the spot. On going inside, they found a stove lying in a tilted position. The stove was not burning. He again stated that the stove was lying in a pool of oil and was ablaze. Daughter-in-law of Mohinder Singh was also ablaze. They put out the fire and thereafter he phoned the Sewa Samiti people. After the arrival of the Van, they removed Kuldeep Kaur to Sri Guru Ram Dass Hospital. On the way, they met the wife of Mohinder Singh and she was also asked to accompany them. In his presence, Mohinder Singh gave Rs. 50/- to the driver of the ambulance and Mohinder Singh thereafter told him that he would go and inform the relatives of Kuldeep Kaur. In cross-examination, he stated that he and Mohinder Singh were only two persons who had reached the house after hearing the cries. Even after they had extinguished the fire, no other person had come to the house. They had extinguished the fire with water and with their hands. He again said that they had extinguished the fire by throwing water with their hands. He had not appeared before the notice to apprise it of the true facts of the incident. He denied the suggestion that Gurbinder Singh and Sher Singh had removed Kuldeep Kaur before he and Mohinder Singh had reached the house.

(5) FROM the prosecution and defence evidence, which has been noted above, in sufficient details, the Sessions Judge, came to a firm conclusion that the prosecution in this case had been able to prove its case against Jaswant Kaur accused beyond shadow of reasonable doubt as the chain of circumstances brought on the record point only towards her guilt and were totally incompatible with her being innocent. After recording the finding aforesaid, he sentenced the appellant in the manner fully detailed above.

(6) AS mentioned above, Gurbinder Singh has filed Crl. Revision No. 442 of 1994 for enhancement of the sentence awarded to the appellant.

(7) MRS. Lisa Gill, learned counsel appearing on behalf of the appellant, has, however, endeavoured her very best to pursuade us to take a view different from the one taken by the learned Sessions Judge and contends that the material witnesses, who supported the dying declaration made by the deceased Kuldeep Kaur, have given different time of recording of the same and that in itself is sufficient to doubt and consequently discard the same. It is being argued that PW 2 Dr. Tarlochan Singh deposed that statement of Kuldeep Kaur was recorded between 6. 30 to 7 PM whereas Dr. Sunil Dhawan, PW 9 has only given the date when the dying declaration was recorded and has given no time whatsoever. Shri Manjit Singh Naib Tehsildar, PW 3 did not give any time when the statement of Kuldeep Kaur was recorded in his examination in chief but in the cross-examination, he stated that he had received a telephonic message at about 6. 30 PM and there is about 20 minutes distance between his house and the hospital, where Kuldeep Kaur was admitted and that he had reached there at about 6. 50 PM on March 22, 1992. PW 10 ASI Surjit Singh in his cross-examination stated that he had started writing the statement of Kuldeep Kaur at about quarter to 6 P. M. and had completed the same within half an hour. The next contention of the learned defence Counsel is that the deceased had delivered a dead male child and it is clearly made out from the statement of Natha Singh PW 6 father of the deceased that the miscarriage took place at about 6. 30 P. M. That being the time of miscarriage, the witnesses supporting the dying declaration cannot be believed, as it was highly doubtful that a lady who was having labour pains would have given a statement at that very time contends the learned counsel. It is then contended by the learned Counsel that it is clearly made out from the reading of the statement or PW 5 Gurbinder Singh that he was not at all present and as a matter of fact had been introduced only with a view to prop up the prosecution version. He happens to be maternal uncle of the deceased and was running a meat shop. At 11. 30 in the morning when his shop was open and was perhaps the business time for him to be engaged in selling the meat, he had no occasion whatsoever to come towards the house where Kuldeep Kaur deceased was allegedly burning, having been set on fire by her mother-in-law. To strengthen the argument noticed above, it is further being argued that Sher Singh accompanying him was not examined at the trial as if he were to be examined he would not have supported the version of Gurbinder Singh PW 5. To further support the contention that Gurbinder Singh was not present at the time when Kuldeep Kaur was already put on fire by her mother-in-law it is further argued that there are many discrepancies in his statement as also that his version that he had tried to put off fire by Khes which was left at the spot was incorrect statement as Investigating Officer who had prepared the inquest at the spot had not found and taken into possession any burnt or half-burnt Khes from the place of occurrence. The next contention of the learned defence Counsel is that there was no endorsement that the deceased remained fit or conscious throughout when her statement was being recorded as was required under the Rules 3, 4, 8 of Chapter XIII Volume III of the Punjab and Haryana High Court Rules and Orders as also that the dying declaration was not in questions and answers form. The last contention of the learned Counsel is that as per version of the doctor who conducted post-mortem examination on the dead body of Kuldeep Kaur, skin of thumb of the deceased had peeled off whereas the Investigating Officer deposed in his cross-examination that the ridges of the thumb the impression of which was obtained by him on the dying declaration were visible. That being so possibility of Investigating Officer getting thumb impression of some body on alleged statement of Kuldeep Kaur cannot be ruled out. Mr. Mehtab Singh learned Deputy Advocate General, Punjab has joined issues with the learned Counsel for the defence on all the points mentioned above and has supported the judgement of the learned Sessions Judge convicting the appellant to undergo life sentence.

(8) WE have heard the learned Counsel for the parties and with their assistance have minutely gone through the record and particularly the dying declaration Ex. PE. We, however, find no substance in either of the points raised by the learned counsel for the appellant. From the statements of the Executive Magistrate and the doctor and Surjit Singh Investigating Officer we do not find variance in time of recording of dying declaration which may be so significant as to discard the prosecution version. Whereas Dr. Tarlochan Singh PW-2 had stated that the statement of Kuldeep Kaur was recorded between 6-30 and 7 P. M. the Executive Magistrate has referred the time to be as 6. 50 P. M. So far as PW 9 Dr. Sunil Dhawan is concerned, he did not give any time of recording the statement of Kuldeep Kaur nor he was questioned by the defence on that count. It is true that in so far as Investigating Officer is concerned, he has stated that he recorded the dying declaration at 5. 45 P. M. but he has further stated in cross-examination that he had completed the same within half an hour. That means that he had completed the statement of Kuldeep Kaur by 6. 15 P. M. The difference between his statement and that of doctor and the Executive Magistrate is, thus, only of 15 minutes. It may be seen at this stage that before recording the statement, Investigating Officer had sought opinion of the doctor whether Kuldeep Kaur was fit to make a statement. This opinion was sought by him on 22nd of March 1992 on an application given by him which is Ex. PM. The doctor while mentioning fit for statement had further mentioned the time as 6. 00 P. M. Obviously, the statement of Kuldeep Kaur came to be recorded after 6. 00 P. M. The statement of the Investigating Officer read in the context of Ex. PM and the statements of other witnesses referred to above that he had started recording the statement of Kuldeep Kaur at 5. 45 P. M. assumes no significance as in our clear view when he appeared as witness after a lapse of considerable time, it is possible that he did not remember the exact time as to when he had started taking down the statement of Kuldeep Kaur and when he actually finished it.

(9) THE second contention of the learned Counsel that Kuldeep Kaur could not get her statement recorded at the time when she was having labour pains has also no substance in view of the fact that all that her father stated while appearing as PW-6 was that miscarriage had taken place at about 6. 30 P. M. as far as he remembered. In case, the miscarriage had already taken place at 6. 00 P. M. , it was not impossible or difficult for Kuldeep Kaur to have given her statement. In any case, the witness gave the time of miscarriage from his memory, in so far as he recollected time when he was examined in the Court on 19th of August, 1993 i. e. an year and half after the occurrence. The contention of the learned defence Counsel that Gurbinder Singh is a made up witness and, in fact, he was not present at the spot has also not impressed us. It is true that he is real maternal uncle of the deceased and therefore, his statement had to be read with care and caution but from the totality of the circumstances we find nothing improbable in his reaching the spot. In his cross-examination he has clearly stated that his house was at a distance of 100 Karams from the place of occurrence and that his residential quarter was situated above the meat-shop. He further stated that he had opened the shop at 8. 30 A. M. and the maximum sale of the meat was in the evening. It is, thus, proved that this witness was residing in close proximity from the house of the deceased. Non-examination of Sher Singh who is said to have accompanied him when Kuldeep Kaur was allegedly burnt alive is also of no consequence, in view of the fact, that Sher Singh is his brother-in-law and there was no occasion for the prosecution to have withheld him as in all probability if he was also to be examined, he too would have supported the prosecution version. In view of the fact that Sher Singh was closely related to him, we think the prosecution was justified in giving up Sher Singh as unnecessary. It is, however, true that Gurbinder Singh stated that he had tried to put off fire with the help of Khes and the same was partially burnt in the effort, as also that the Khes was left behind at the spot when Kuldeep Kaur was moved to the hospital and that Investigating Officer had not found any burnt or partially burnt Khes from the place of occurrence. This minor discrepancy in the prosecution case, in our view, cannot detract from the sworn testimony of so many independent witnesses like the Executive Magistrate and the doctor. The next contention of the learned Defence Counsel that as per Rules 3, 4 and of Chapter XIII Volume III of High Court Rules and Orders, there was no endorsement that the patient had remained conscious throughout when the statement was made shall also cut no ice in view of the fact that PW-3 Manjit Singh Executive Magistrate clearly stated in examination-in-chief that during the period the statement of Kuldeep Kaur was recorded both the doctors remained present and Kuldeep Kaur remained conscious. It may be recalled that immediately before recording the statement of Kuldeep Kaur, Investigating Officer had sought opinion of the Doctor as to whether she was fit to make a statement and, as mentioned above, on application moved on that behalf by him Ex. PE, the doctor had clearly stated that she was fit to make a statement. This part of the statement of PW-3 was not even questioned by the defence in cross-examination. While considering the, last contention of the learned Counsel that as per version of PW-1 Dr. Nirmal Dass there was peeling of skin of both hands and feet of Kuldeep Kaur and therefore, the thumb-impressions available on dying declaration could not have ridges and consequently the thumb- impressions must be of somebody else and not of Kuldeep Kaur suffice it to mention that peeling of skin of both hands and feet of Kuldeep Kaur was found by the doctor at the time when he conducted post-mortem examination on her dead body. As stated above Kuldeep Kaur had died on 27th of March, 1992 whereas she gave dying declaration on 22nd of March, 1992. None of the doctors who were present at the time of recording of dying declaration was questioned with regard to the state of hands of Kuldeep Kaur at that time.

(10) THE prosecution, in our view has led sufficient evidence in this case to bring home the offence against the appellant. Dr. Tarlochan Singh PW-2 and Mohinder Singh PW-7 and also PW-3 Manjit Singh Executive Magistrate are totally dis-interested witnesses and have given consistent account of the way and manner in which dying declaration was recorded. Nothing at all has been brought on records that may detract from their sworn testimony before the Court. In these circumstances, even if we are to doubt the presence of Gurbinder Singh, PW 5, which, of course, while dealing with the matter, we have not done, even then the conviction in the present case could be sustained on proof of dying declaration alone. It is significant to mention here that there was a motive on the part of the appellant to commit the crime and it is noteworthy that Kuldeep Kaur did not involve any one but for her mother-in-law.

(11) IN the defence, the appellant endeavoured to establish that she had come to know about the incident only when Kuldeep Kaur was being taken to hospital in an Ambulance Van of Sewa Samiti. With a view to strengthen this plea, the appellant even examined some witnesses. DW 1 Ram Asra, even though in the examination in chief deposed in tune with the defence of the appellant but in cross-examination he stated that the name of the person who gave the money was indicated as Mandar Singh in receipt Ex. DW 1/c. He further stated that the receipt was not in his hand nor the same was scribed in his presence. DW 2 Tarlok Singh, Driver, Sewa Samiti, Amritsar, even though stated that on March 21, 1992 he had taken Ambulance to Bhagtanwala Gate, where he found one Tarlok. Singh and father-in-law of deceased Kuldeep Kaur and that these persons had taken the deceased to Guru Ram Dass Hospital and on the way they had met mother-in-law of the deceased but in his cross-examination, he stated that he did not know the father-in-law and mother-in-law of the deceased earlier. He admitted that receipt mark A did not indicate any address. Mohinder Singh, DW 3, is the husband of the appellant and he also supported her. However, in cross-examination, he stated that before he reached the house, no other person had reached there as also that he did not know the names of other persons who had followed him to his house. This is totally incompatible with his statement that he had gone to attend a Kirtan which was taking place at a distance of ten feet from his house as also that there were houses of Thakar Singh and Pritam Singh etc. From the reading of statement of DW 4 Tarlok Singh, it can be easily deciphered that he is just trying to help the appellant. It is, thus, a case where the prosecution has proved its case against the appellant beyond reasonable doubt.

(12) IN all fairness to the learned counsel for the appellant, we would like to mention that she has relied upon Jagdish Lal Malhotra v. The State, (1984) 1 Recent Cri R 332 : (1984 Cri LJ NOC 53) (Delhi) and State of Punjab v. Savitri Devi, (1983) 85 Pun LR 763 : (1983 Cri LJ 1093). In Jagdish Lal Malhotras case (supra) a Division Bench of Delhi High Court held that the dying declaration came to be recorded on questioning of the injured by Dr. V. Thukkral though only her replies to questions had been reproduced, and inasmuch as, it was not recorded in the form of questions and answers, it was difficult to find out as to what questions were asked and in what form. In these circumstances, it was further held that the Court was left guessing as to how much was suggested by the examiner and how much was produced by the person making the declaration and as to how it could be said that the declaration represented the true statement of the deceased. In Savitri Devis case (supra) a Full Bench of this Court held, "that the dying declaration as undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny of the closest circumspection of the statement before acting upon it. While great solemnity and sanctity is attached to the words of dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of imagination of the dying person. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailant and that he was making the statement without any influence or rancour. " The learned Counsel for the defence, however, while reading the relevant rules reference of which have been given above clearly stated that the dying declaration could be recorded in the narrative form as well. In so far as the proposition of law enunciated in Savitri Devis case (1983 Cri LJ 1093) (supra) a Full Bench judgement of this Court is concerned, there cannot be any dispute. In our view, however, the dying declaration in the present case is supported by independent witnesses and even if the test as has been mentioned in the Full Bench is applied the dying declaration stands the same test. Further Supreme Court in Ganpat Mahadeo Mane v. State of Maharashtra, 1992 (3) All Cri LR 545 : (1993 Cri LJ 298) held that a dying declaration which was recorded by an Executive Magistrate and was corroborated by medical and circumstantial evidence and the endorsement by the doctor that the patient was in fit condition of giving the statement, the value of such dying declaration was not detracted even if not recorded in questions and answers form. In Suraj Mal v. State of Punjab, AIR 1992 SC 559 [LQ/SC/1991/565] : (1992 Cri LJ 520) where the Medical Officer after supporting the entire prosecution version in his examination-in-chief, in the fag end of his cross-examination stated that he did not know whether the statement recorded by A. S. I. was correct or not and he did not attest the same as he was not satisfied with the correct recording of the statement from Rajbir Singh, still held that since the Medical Officer had not stated that the deceased gave any other name except the name of the appellant as the assailant, nor even a suggestion was made to the Medical Officer or to any other witness that the deceased gave a different name, but the A. S. I. recorded the name of the appellant as the assailant, would not make any difference as the assailant was none other than the brother of the deceased. Therefore, it was far-fetched to suggest or even to imagine that the ASI could have substituted the name of the appellant as the assailant leaving out the name of real assailant.

(13) FOR the reasons recorded above, we do not find any substance in this appeal and dismiss the same.

(14) SO far as Criminal Revision No. 442 of 1994 for enhancement of sentence is concerned. We do not find it to be a rarest of rare cases where the appellant may deserve the extreme penalty of death. That being so, Criminal Revision is also dismissed. Order accordingly.