Crl. Appeal No. 194-DBA of 2001. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 194-DBA of 2001. Date of Decision : 27.8.2009. State of Punjab ...... Appellant Versus Mulakh Raj ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. D.S. Brar, DAG Punjab, for the appellant-State. Ms. Tanu Bedi, Advocate, for the respondent. NAWAB SINGH J. This is an appeal filed by the State of Punjab against the judgment dated January 15th, 1998 passed by learned Additional Sessions Judge, Amritsar, whereby above named respondent was acquitted. 2. On March 14th, 1996 at about 6.30 PM, Tarsem Lal (deceased) went from his house but did not return. Next morning, at about 6 AM, Inder Dass-complainant (PW-2) father of Tarsem Lal received information that some one had inflicted injuries to Tarsem Lal and he was lying in the street in front of the house of Dilbagh Singh resident of Sardar Avenue, Amritsar. Thereupon, complainant along with his son Prem Lal (PW-3) and Rano Devi his daughter-in-law reached the spot and noticed him lying in an injured condition. One stone was also lying near Tarsem Lal. Tarsem Lal disclosed that he, Mulakh Raj-respondent and Kewal Kumar had drinks (liquor) together and thereafter consumed bhang Crl. Appeal No. 194-DBA of 2001. 2 (cannabis). Kewal Krishan left for his house. On their way back to their respective houses, scuffle took place between him and Mulakh Raj over distribution of gambling money. Both of them fell down. Mulakh Raj- accused picked up a stone and hit on his head and threw him on the ground. When transport was being arranged to take Tarsem Lal to hospital, he succumbed to his injuries immediately after disclosing the occurrence to the complainant. 3. Inder Dass proceeded to lodge the report to the Police. Girdwar Ram Pal, Inspector (PW-6) met him on the way and recorded his statement (Exhibit PJ). He appended his endorsement (Exhibit PJ/1) and sent the same to the Police Station. On the basis of which, First Information Report (Exhibit PH) was recorded. Inquest (Exhibit PG) was held. Blood stained earth was taken into possession vide recovery memorandum (Exhibit PK). Dead-body of Tarsem Lal was sent for post-mortem examination which was conducted by Dr. Ashok Chanana (PW-1). Rough site plan (Exhibit PM) of the place of occurrence was prepared. 4. On completion of the investigation and other formalities, the accused was sent up for trial. 5. The accused-respondent was charged under Section 304 IPC. He pleaded not guilty and claimed trial. 6. In support of its case, prosecution examined eleven witnesses viz. Dr. Ashok Chanana (PW-1), Inder Dass (PW-2), Prem Lal (PW-3), Krishan Lal (PW-4), Parminder Singh (PW-5), Girdawar Ram Pal, Inspector 9PW-6), Sanjeev Kumar (PW-7), Bhupinder Singh (PW-8), Balkar Singh (PW-9), Rishi Ram (PW-10) and Sohan (PW-11). Crl. Appeal No. 194-DBA of 2001. 3 7. When examined under Section 313 of Code of Criminal Procedure, accused-respondent denied the allegations and pleaded that he has been implicated falsely. 8. In defence evidence, accused-respondent examined Kewal Kumar alias Kela (DW-1) and Hans Raj (DW-2). 9. The entire case hinges on the alleged oral dying declaration made by the deceased to Inder Dass-father and Prem Lal-brother PW-2 and PW-3, respectively. 10. Indeed, an oral dying declaration can form basis of conviction but such a dying declaration has to be trustworthy and free from every blemish and must inspire confidence. Here, in the case on hand, the dying declaration does not appear to be trustworthy and inspires no confidence for the reasons given hereinafter. The spot where Tarsem Lal was lying is a street having number of houses as is depicted in the spot map (Exhibit PM). The information was received by the father of the deceased at 6 AM. There is no evidence as to who was the informer. However, that informer was known to Tarsem Lal and his family and that is why, he came to the house of Tarsem Lal to inform his family members. Why his name was withheld by Inder Dass (PW-2) is a circumstance which creates suspicion. Tarsem Lal was lying in a street in a thickly populated area at 6 AM. By and large, people get up by that time in the month of March. Had Tarsem Lal been alive, he would have disclosed the occurrence to the informer and to the other passersby because in that locality generally people were known to him as he was lying nearby his house. In the medical evidence comprised in the statement of Doctor Ashok Chanana (PW-1) and Crl. Appeal No. 194-DBA of 2001. 4 the Post-Mortem Examination Report (Exhibit PB) 11 injuries on the person of the deceased were found. High quantity of alcohol was detected in the stomach of the deceased as find mentioned in the chemical examination report (Exhibit PE). This shows that deceased was a drunkard. The injuries as find mentioned in the PMR could not be the result of only hitting by a stone on the head of the deceased and by throwing on the ground. This part of the evidence falsifies the oral dying declaration made by the deceased to the witnesses. According to the witnesses, the deceased told them that occurrence took place at 2 AM, meaning thereby that he was lying in the street for four hours but breathed his last immediately after making his dying declaration to his brother and father as if he was waiting for them. The matter does not rest here. There is variance in the statements of the two witnesses with regard to the exact words allegedly used by the deceased. According to Inder Dass (PW-2), the deceased had stated that on the way, the deceased and Mulakh Raj had a quarrel, Mulakh Raj lifted a stone and hit on the head of the deceased and inflicted injuries also while Prem Lal (PW-3) deposed that deceased informed that he only hit him on his head with a stone. He did not utter even a word that the deceased also informed him that Mulakh Raj had given number of injuries to him. The reproduction of the exact words of the oral declaration in cases where prosecution relies solely on dying declaration is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration. 11. In view of this, this Court unhesitatingly holds that the oral dying declaration allegedly made by the deceased does not pass the test Crl. Appeal No. 194-DBA of 2001. 5 of judicial scrutiny. Even where two views are possible, the view taken by the trial Court while acquitting the accused is required to be upheld. 12. In view of what has been stated above, the impugned judgment does not suffer from any infirmity and is, therefore, upheld. Resultantly, the appeal being devoid of merit is dismissed. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 27.8.2009. SN