IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.840-DB of 1997 Date of decision: 03.04. 2007 Suresh -----Appellant. Vs. The State of Haryana -----Respondent. AND Criminal Appeal No.27-DB of 1998 Date of decision: 03.04. 2007 Sat Narain and another -----Appellants. Vs. The State of Haryana -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE H.S. BHALLA Present: Mr. N.K. Sanghi, Advocate for appellants in Crl.A.27-DB- 98 Mr. Rajbir Sehrawat, Advocate for appellant in Crl.A.840-DB-94. Mr. J.S. Toor, Addl. A.G., Haryana for the respondent. ----- Adarsh Kumar Goel, J. This order will dispose of Criminal Appeal No.840-DB of 1997 filed by Suresh and Criminal Appeal No.27-DB of 1998 filed by Sat Narain and Suresh. Criminal Appeal No.840-DB of 1997 The appellants Sat Narain and Suresh challenge their conviction and sentence under Section 302/34 IPC. They stand sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- each, in default to undergo further RI for three years under Sections 302/34 IPC. Suresh, appellant has filed Criminal Appeal No.840-DB of 1997 as well as Criminal Appeal No.27-DB of 1998. His name has been added by mistake. His name from the Criminal Appeal No.27-DB of 1998 is directed to be deleted. Case of the prosecution is that the deceased, Sat Pal son of Duli Chand was carrying on the business of dairy at Gohana. He was living there with his wife and children. The accused Sat Narain and Suresh were on visiting terms with him. Sat Narain developed illicit relations with his wife about one year prior to the occurrence. On 13.4.1994, Sat Narain and Suresh visited the house of the deceased and asked him to accompany them to Matlauda. He went with them by sitting on the motorcycle, driven by Sat Narain. He was sitting in between the Sat Narain and Suresh. From Matlauda, they were returning to Israna. When they reached at Nain, in the forest, at about 11.30-12.00 mid-night, Sat Narain stopped the motorcycle on the pretext of answering the call of nature. As soon as the deceased got down, Sat Narain and Suresh gave injuries to him with sharp-edged weapons, knife and Chhaini in stomach, chest, arms, hands and feet. He raised alarm, but nobody came to his rescue. Thereafter, both of them sprinkled kerosene oil and set him on fire and escaped on the motorcycle. When he was crying on the road, a police van came. They got him admitted to the hospital. This statement was recorded 2 Criminal Appeal No.840-DB of 1997 as Exh.PK by Randhir Singh, SI (PW-14) in the presence of Dr. P.K. Gandhi (PW-6) at 4.50 A.M. in the hospital at Panipat. Randhir Singh had reached the hospital on receiving the message from SHO, Israna, who got the information from PW-2 Gurdial Singh, Welfare Inspector , District Police Office, Panipat. PW-2 Gurdial Singh was on patrol duty and was going towards P.S. Israna at 1.15 A.M. in the night. He heard the cries of the deceased and stopped the gypsy. He found the victim having incised wounds with knife and also burns. He put him in the gypsy and took him to the hospital via Police Station, Israna. The deceased told him about the incident of assault by the accused Sat Narain and Suresh. PW-2 halted at P.S. Israna and sent a V.T. message to P.S. Matlauda recorded by PW-1 HC Jai Narain at 3.10 A.M (Exh.PX) asking the I.O. to come to the hospital at Panipat. Randhir Singh (PW-14) after receiving message through the Police Station, Israna, reached the Civil Hospital, Panipat and made application (Exh.PJ) to seek the opinion of the doctor about Sat Pal being fit to make statement. The doctor made endorsement (Exh.PJ/1) that the injured was fit to make a statement. Thereupon, statement Exh.PK was recorded at 4.50 A.M., which was attested by Dr. P.K. Gandhi (PW-6), on which, FIR (Exh.PK/3) was registered. He then went to the place of occurrence and on the way, at Bus Stop, Matlauda, he received a V.T. message through Constable Karan Singh at 7.50 A.M. that Sat Pal had died. He then added offence under Section 302 IPC. He went to the hospital, prepared inquest report, gave an application for post-mortem examination and again went to the place of occurrence. He arranged a Photographer, who 3 Criminal Appeal No.840-DB of 1997 prepared rough site-plan, lifted bloodstained earth, burnt piece of collar of the shirt, half of a glass bottle smelling petrol and recorded the statements of witnesses under Section 161 Cr.P.C. During investigation, Sat Narain, accused made a disclosure-statement and got recovered letters (Exh.PVand Exh.PV1) and finger prints of Sat Narain and Suresh were taken before the Court. After completing the investigation, the accused were challaned. Prosecution in support of its case, examined Dr. S.C. Pahwa (PW-1), Inspector Gurdial Singh (PW-2), Ramesh Kumar, Photographer (PW-3), Jai Bhagwan, Photographer (PW-4), Ram Chander, Patwari (PW-5), Dr. P.K. Gandhi, (PW-6), Constable Saroj (PW-7), Constable Sat Pal (PW-8), Ram Singh, Fingerprint Expert (PW-9), Head Constable Jai Bhagwan (PW-10), Head Constable Jai Narain (PW-11), Om Parkash (PW-12), Partap Singh (PW-13), Sub Inspector Randhir Singh (PW-14) and Sub Inspector Raj Singh (PW-15). PW-1 Dr. S.C. Pahwa conducted the post-mortem examination on 14.4.1994 at 12.15 P.M. on the dead body of the deceased. According to him, death was due to multiple injuries, injuries to vital organs i.e. left lung leading to massive haemorrhage and shock associated with shock due to extensive burns of various degrees. All the injuries and burns were ante mortem in nature and were sufficient to cause death in ordinary course of nature. The time between injury and death was within few hours and between death and post-mortem was between 6 hours and 10 minutes. 4 Criminal Appeal No.840-DB of 1997 Dr. P.K. Gandhi (PW-6) examined the deceased on 14.4.1994 at 2.30 A.M.. The patient was conscious. B.P. could not be recorded. Pulse was 84 per minute. He had burns on upper part of chest, middle and upper part of right and left arm, front and back of neck, face and skull, upper part of left and right side of back, lower part of back on left side, right and left fore-arm and hands. Seizing of scalp hair, eyebrow and axillary hair was present. Red line was present in between burnt and healthy area. There was bleeching of skin. Peeling of skin with blister formation present on the body. There was smell of kerosene present and was referred to Surgeon for opinion. He had thirteen injures. Exh.PH was the MLR. He gave opinion at 4.15 A.M. that the patient was fit to make statement. His statement was recorded by ASI Randhir Singh in his presence. The patient died at 6.05 A.M. He sent writing (Exh.P2) to the Police Post, Panipat at 6.10 A.M. Therein, he mentioned that the patient had been brought and got admitted by Gurdial Singh, Inspector, Welfare. In the MLR, he had mentioned that the patient was brought by Constable Sultan Singh. According to Gurdial singh (PW-2), Sultan Singh was accompanying him. PW-3 Ramesh Kumar is a Photographer who took the photographs; PW-4 Jai Bhagwan is also a Photographer; PW-5 Ram Chander, Patwari prepared scaled site plan; PW-7 Constable Saroj was a witness to the disclosure-statement made by Murti Devi; PW-8 Constable Sat Pal was a witness to the disclosure-statement made by Sat Narain. PW-9 Ram Singh, Finger Print Expert proved the finger prints of Sat Narain on half glass bottle recovered from the place of 5 Criminal Appeal No.840-DB of 1997 occurrence; PW-10 HC Jai Bhagwan had taken specimen thumb and fingers impression of Suresh; PW-11 HC Jai Narain (No.82) had received V.T. message at P.S. Matlauda on 14.4.1994 at 3.10 A.M. and recorded daily diary report No.27 (Exh.PX); PW-12 Om Parkash, brother of the deceased proved letters (Exh.PV and PV1) written by Murti Devi. He deposed that she had gone astray, but he was not aware of her relationship with any other person. He was declared hostile; PW-13 Partap Singh is another brother of the deceased, who was a witness to the disclosure-statement made by Sat Narain. PW- 14 Randhir Singh recorded the dying declaration (Exh.PK); PW-15 SI Raj Singh received message at 5.30 A.M. on 14.4.1994 from Gurdial Singh, Inspector Welfare to round up Sat Narain, Suresh and Murti. He arrested Sat Narain and Suresh on 19.4.1994 at 7.30 P.M. He interrogated them on 20.4.1994 and recorded disclosure-statement, Exh.PAA of Sat Narain and Exh PCC of Suresh. He recorded further disclosure-statement of Sat Narain on 21.4.1994 (Exh.PN). He effected recoveries at the instance of Sat Narain and Suresh. Learned trial Court after considering the evidence on record, acquitted Murti Devi while convicting Sat Narain and Suresh. The trial Court observed that the dying declaration made by the deceased to Inspector Gurdial Singh (PW-2) was fully proved. The dying declaration was confirmed by message received by HC Jai Narain (PW11) and report No.27 was recorded by Om Parkash in daily diary register at P.S. Matlauda at 3.30 A.M. His presence was also mentioned in the medico-legal report and is also proved by Dr. P.K. Gandhi (PW-6). As per entry No.28 in the Register, recorded by Jai 6 Criminal Appeal No.840-DB of 1997 Narain (PW-11), names of the accused were mentioned. According to Raj Singh (PW-15), he left the police station for rounding up the accused at 5.30 A.M. Dying declaration made orally before Gurdial Singh at about 2 A.M. was corroborated by dying declaration recorded by Randhir Singh (PW-14) at 4.50 A.M. The injured had been taken to the hospital and given the treatment. Mere receiving of 90% burns was no ground to infer that he injured could not have made the dying declaration, as held in Padmaben Shamalbhai Patel v. State of Gujarat 1991(1) Recent Criminal Reports 487, Mafabhai Nagarbhai Raval v. The State of Gujarat 1992(2) Recent Criminal Reports 505 and Smt. Chandrawati and others v. The State 1996 Crl.LJ 975. Recovery of bottle having finger prints of Sat Narain, was a corroborating circumstance. Wrist watch (Exh.P15) was also recovered at the instances of the accused, which was identified by Partap Singh (PW-13). Failure of the prosecution to prove the motive was of no consequence. We have heard learned counsel for the parties and perused the record. Learned counsel for the appellants submitted that conviction of the appellants on the basis of dying declaration was not justified in absence of the same having been recorded by the Executive Magistrate when there was ample time to call a Magistrate. It was further submitted that the dying declaration was not genuine as the injured was not in a position to make a statement. His blood pressure not being recordable, he must have been in a condition of shock and not mentally fit to make the statement. Certificate of the 7 Criminal Appeal No.840-DB of 1997 doctor did not refer to the mental condition of the patient. The dying declaration was not in question and answer form and not in exact words and language of the victim. Reliance has been placed on judgments of the Hon’ble Supreme Court in Uka Ram v. State of Rajasthan 2001(2) RCR (Criminal) 416, Ramilaben Hasmukhbhai Khristi and another v. State of Gujarat 2002(3) RCR (Criminal) 786 and Satish Kumar v. State of Punjab 2003(1) All India Criminal Law Reporter 76 and judgment of Karnataka High Court in State of Karnataka v. Shivalingappa 2001(4) RCR (Criminal) 237. Learned counsel for the State supported the conviction and sentence of the appellant. The question which falls for consideration is whether the dying declaration made orally before PW-2 Gurdial Singh and the dying declaration recorded by PW-14 Randhir Singh at 4.50 A.M. (Exh.PK) in the presence of Dr. P.K. Gandhi (PW-6) can be the basis for conviction of the appellant. We are of the view that it can be. The occurrence took place at midnight and PW-2 Gurdial Singh, Inspector, happened to be on patrol duty at 1.15 A.M. He heard the cries of the victim. He stopped the gypsy and took the victim to the hospital at 2.30 A.M. On the way, he sent a V.T. message from P.S. Israna to P.S. Matlauda received and recorded as Exh.PX at 3.10 A.M. Immediately, thereafter, PW-14 Randhir Singh reached the hospital and after taking the opinion of the doctor, recorded the dying declaration at 4.50 A.M. The patient died after about one hour thereafter at 6.05 A.M. 8 Criminal Appeal No.840-DB of 1997 The question is whether there was time to call for the Magistrate and whether the patient was in a fit condition to make a statement, as claimed by PW-6 Dr. P.K. Gandhi. The patient was definitely serious having received burn injuries as well as incised wounds. According to Dr. P.K. Gandhi, the dying declaration was recorded by Randhir Singh in his presence and the injured had replied the questions put to him in his presence. The patient was conscious at that time. He denied that the patient was not in fit condition to give statement. The injuries on the person of the deceased were described as under:- Patient was conscious. B.P. could not be recorded. Pulse 84 per minute. 1. Patient was having burns from 1st to to 3rd degree on upper part of chest, middle and upper part of right and left arm, front and back of neck, face and skull, upper part of left and right side of back, lower part of back on left side, right and left fore-arm and hands. Seizing of scalp hair, eyebrow and axillary hair was present. Red line was present in between burnt and healthy area. There was smell of kerosene present and was referred to Surgeon for opinion. 2. An incised wound 4 cm x 1 cm x 0.4 on the anterior aspect of left arm, 10 cm from the shoulder joint. Both the ends were tapping and margins were clean cut. Clotted blood was present and was referred to Surgeon for opinion. 3. An incised wound 5 cm x 1 cm x bone deep on the left arm, 6 cm from injury No.2. Clotted blood was present and referred to surgeon for opinion. 4. Multiple incised wound varying in size and shape from 4 cm x 1 cm x bone deep to 6 cm x 1 cm x bone 9 Criminal Appeal No.840-DB of 1997 deep on the left fore-arm and left palm. Both the ends were tapping. Margins were clean cut. Wounds were 11 in number and clotted blood was present. Referred to surgeon for opinion. 5. An incised wound 4 cm x 1 cm x. 4 cm on the lateral aspect of right arm 10 cm from the elbow joint Margins were cleancut and clotted blood was present and referred to Surgeon for opinion. 6. An incised wound 3 cm x 1 cm x .4 cm on the posterior aspect of right fore-arm, 8 cm from the elbow joint. Margins were clearcut and there was clotted blood was present & referred to surgeon for opinion. 7. An incised wound 3 cm x 1 cm x depth not measured on the left side of chest, 20 cm from the axilla. Margins were cleanout and clotted blood was present & referred to surgeon for opinion. 8. An incised wound 4 cm x 1 cm depth not measured on the left side of the back 32 cm from the tip of shoulder. Margins were clean cut. Clotted blood was present and was referred to surgeon for opinion. 9. An incised wound 3 cmx1cmx depth not measured on the back side of abdomen, 8 cm from the umblicous. Both the ends were tapping and margins were cleancut. Clotted blood was present and referred to surgeon for opinion. 10. An incised wound 4cmx1cmx depth not measured 8 cm from the umblicous on upper part. Margins were cleancut. Clotted blood was present and was referred to surgeon for opinion. 11. An incised wound 2 cmx1cmx depth not measured on the right side of chest, 4 cm below the nipple, margins were clean cut and clotted blood was present. Referred to surgeon for opinion. 10 Criminal Appeal No.840-DB of 1997 12. An incised wound 4cmx2cmx depth not measured on the later side of abdomen, 24cm from the axilla, margins were clean cut. Both the ends were tapping, clotted blood was present and referred to surgeon for opinion. 13. Two incised wounds 4cm x 1cm x bone deep and 3cmx5cmx bone deep on the lateral aspect of right knee joint. Margins were clean cut and was referred to surgeon for opinion. Injuries No.1 to 13 were kept under observation and were caused within 24 hours. Injury No.1 was extensive burns, while injuries No.2 to 13 were the result of sharp weapon.” The names of the accused had been figured out from the statement of the injured and were available with the I.O. Raj Singh (PW-15) by 5.30 A.M. According to Raj Singh, he had received the message that the present accused persons had committed the offence. PW-2 Gurdial Singh also deposed that the names of the accused persons had been disclosed. In these circumstances, the dying declaration made orally before PW-2 Gurdial Singh and which was also recorded by PW-14 Randhir Singh in the presence of Dr. P.K. Gandhi (PW-6) was a genuine dying declaration and could be relied upon as truthful with regard to involvement of the appellants. It may be worthwhile to refer to the law laid down by the Hon’ble Supreme Court on the point. In Laxmi v. Om Prakash AIR 2001 SC 2383 it was observed:- 11 Criminal Appeal No.840-DB of 1997 “1. …….The law is well settled: dying declaration is admissible in evidence. The admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming a safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand, if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.” 12 Criminal Appeal No.840-DB of 1997 “20. We have already noted hereinabove that at 9 a.m., before the statement Exhibit PW 21-A was recorded by Ramesh Chand, SI the patient had reached under the care of Dr I.N. Tiwari who had kept her on heavy sedation on account of 85% deep burns and dehydration while her condition was constantly deteriorating. Dr B.N. Reddy, PW 12 opined that the neck, mouth and lips of the deceased were burnt. The records of the Burns Ward show that the hands of the injured were also burnt and the skin of the hands had peeled off. In such a condition of the injured we have grave doubts, as the trial court has also expressed, if the injured could have made a detailed statement to Ramesh Chand, SI and could have put her signature on the same……” “29. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by an investigating officer has been discouraged and this Court has urged the investigating officers to avail the services of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer, later on relied on as dying declaration.” Similar is the law laid down in Arvind Singh v. State of Bihar AIR 2001 SC 2124 (paras 15 and 16). In Ramilaben Hasmukhbhai Khristi v. State of Gujarat AIR 2002 SC 2996, it was observed:- 13 Criminal Appeal No.840-DB of 1997 “28. Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.” A doubt had been raised and the matter was referred to the Constitution Bench in Laxman v. State of Maharashtra AIR 2002 SC 2973. The Constitution Bench vide order dated 27.8.2002, in Laxman (supra) observed as under:- “For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of Andhra Pradesh, 1999 (7) SCC 695 to the effect that “in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration” has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect 14 Criminal Appeal No.840-DB of 1997 that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of Andhra Pradesh, 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat, 1999 (9) SCC 562 case.” In K. Ramachandra Reddy v. Public Prosecutor AIR 1976 SC 1994: (1976 Cri LJ 1548) it was observed: “The dying declaration is undoubtedly admissible under Section 32 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 and the closest circumspection to the statement before