IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 285 of 2004 Judgment reserved on: 30.6.2011 Date of decision: 01.08.2011. Shashikant …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. Jagdish Vats, Advocate with Mr. Surinder Verma, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. __________________________________________________________ Kuldip Singh, Judge This appeal has been directed against judgment dated 29.6.2004/6.7.2004 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in S.C. Case No. 89- G/VII/03/S.T. No. 74/03 convicting the appellant and co-accused Wazir Chand under Section 304 (II) IPC and sentencing them to undergo rigorous imprisonment for seven years and to pay a fine of ` 50,000/- each, in default of payment of fine, further to undergo simple imprisonment for 2 ½ years. On the realisation of the fine, ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 the same was ordered to be paid as compensation to the legal heirs of deceased. The co-accused Wazir Chand also joined Shashikant in the present appeal as appellant but he died during the pendency of the appeal and the appeal against Wazir Chand has been ordered to be abated vide order dated 8.12.2010. 2. The prosecution case, in brief, is that on 1.6.1999 at about 12.10 P.M. PW-12 S.S.Chamyal the then Sub Divisional Magistrate, Dehra informed the Police Station, Jawalamukhi that a person in a quarrel got injured on 31.5.1999 at Garli and had been brought and referred to CHC, Jawalamukhi. On this, PW-18 Nathu Ram, Inspector, Police Station, Jawalamukhi along with LHC Ramesh Chand went to CHC, Jawalamukhi and obtained the opinion in writing from the Medical Officer whether Hoshiar Singh injured who was admitted in the hospital was fit to make statement. After obtaining the opinion, recorded the statement of Hoshiar Singh. 3. Hoshiar Singh stated that he had been operating as Barber for the last about 14-15 years at Garli Bazar Bus Stand under a mango tree. On 31.5.1999 at about 6.30 p.m. he was at his place of work when accused Shashikant came and took him on the back side of a ‘Khokha’ and enquired from him whether he knew him. Hoshiar Singh told him that he had recognized him. On this accused Shashikant who was wearing military shoes started giving beating to Hoshiar Singh with his shoes and also with his hands. Hoshiar Singh fell down on the ground but accused Shashikant again gave him beatings, as a result of which, Hoshiar 3 Singh received injuries on his back, neck, chest and stomach. Thereafter, accused Wazir Chand, uncle of accused Shashikant and another Hoshiar a tea vendor also came there. Wazir Chand also gave beatings to Hoshiar Singh with his hands. The tea vendor Hoshiar Singh had enmity with injured Hoshiar Singh on account of some past incident. The tea vendor Hoshiar Singh had sent accused Shashikant and Wazir Chand under the influence of liquor to give beatings to injured Hoshiar Singh. 4. The injured continued that he became unconscious and re-gained consciousness in Garli hospital where his sister-in- law PW-3 Rajo Devi and his brother PW-10 Suresh Kumar and his cousin Harbans Lal and aunt PW-15 Ram Piari were present. He came to know that these persons brought him to the hospital. The injured was referred from Garli hospital to Sub Divisional Hospital, Dehra and from Dehra, he was taken to Jawalamukhi hospital. 5. The Investigating Officer did not find that any cognizable offence has been committed. On the basis of statement of injured rapat No. 15 Ex.PW-18/B dated 1.6.1999 was recorded in the roznamcha. On 2.6.1999 injured Hoshiar Singh was referred from CHC, Jawalamukhi to Rajindera Prashad Medical College, Dharamshala where he expired. The postmortem on the dead body of the deceased was performed on 3.6.1999. In the postmortem report Ex.PW-2/C the cause of death was shown septicaemic shock due to peritonitis as a result of traumatic rupture of small intestine. The MLC Ex.PW-1/A of Hoshiar Singh and MLC Ex.PW-1/C dated 31.5.1999 of PW-3 Rajo Devi sister-in-law of 4 deceased Hoshiar Singh were obtained by the Investigating Officer. The injuries in the MLC of Hoshiar Singh were mentioned as grievous with blunt weapon. FIR was registered at Police Station, Jawalamukhi. On completion of investigation, 173 Cr.P.C. report was submitted against accused Shashikant and Wazir Chand for offences punishable under Sections 302, 325, 323, 34 IPC. 6. The accused were charged for the offence punishable under Sections 302, 34 IPC. The accused pleaded not guilty and claimed trial. The prosecution has examined 18 witnesses. The statements of accused were recorded under Section 313 Cr.P.C. They denied the prosecution case and pleaded their innocence. The accused did not lead any evidence in defence. On conclusion of trial, the accused were convicted as noticed above, hence appeal. 7. I have heard Mr. Jagdish Vats, learned counsel for the appellant Shashikant and Ms. Ruma Kaushik, Addl. A.G. and Mr. J.S.Rana, Assistant Advocate General for the respondent. It has been submitted on behalf of the appellant that learned Additional Sessions Judge has misconstrued and misinterpreted the evidence on record more particularly Ex.PW-10/C alleged dying declaration of the deceased. The occurrence allegedly took place on 31.5.1999 but FIR Ex.PW-18/C was registered on 3.6.1999. There is no explanation for delay in lodging the FIR. The learned Additional Sessions Judge has erred in convicting and sentencing the appellant under Section 304(II) IPC. On behalf of the respondent, it has been submitted that the prosecution has proved 5 the case against the appellant. The dying declaration Ex.PW-10/C and other material on record has fully proved the case of the prosecution. The learned Additional Sessions Judge has rightly appreciated the material on record in convicting and sentencing the accused Shashikant. A prayer has been made for dismissal of the appeal. 8. PW-1 Dr. Jatinder has stated that in the year 1999 he was posted as Medical Officer in Civil Hospital, Garli. On 31.5.1999 at about 8.00 p.m. on the application Ex.PW-1/B of the police, he examined injured and issued MLC Ex.PW-1/A. The patient at the time of examination was not co-operative, not well oriented. He was not fit for putting signatures. The injuries mentioned in MLC Ex.PW-1/A are possible with fist and kick blows. On the same day he examined Rajo Devi and on the application of police Ex.PW-1/D, he issued MLC Ex.PW-1/C. The injuries shown in MLC Ex.PW-1/C are possible by slap. In cross-examination he has stated that he referred the patient to Sub Divisional Hospital, Dehra for investigation and treatment. The injuries shown in MLC Ex.PW-1/A can be suffered due to fall from a height. Similarly, injuries shown in MLC Ex.PW-1/C can be caused by fall. 9. PW-2 Dr. Suresh Sankhayan, Professor and Head Department of Forensic Medicine, Dr. Rajindera Prasad Medical College, Tanda has stated that police moved an application Ex. PW-2/A alongwith inquest papers Ex.PW-2/B for postmortem of deceased Hoshiar Singh. He conducted postmortem of deceased at 11.15 a.m. on 3.6.1999. The victim died at Zonal Hospital, 6 Dharamshala on 2.6.1999 at about 2.30 p.m. He issued postmortem report Ex.PW-2/C and gave opinion that death took place due to septicaemic shock due to peritonitis as a result of traumatic rupture of small intestine. He gave opinion on separate paper Ex.PW-2/D. In cross-examination, he has stated that some of the injuries which he mentioned in the postmortem report externally could have been sustained due to fall but not the injuries responsible for the cause of death. 10. PW-3 Rajo Devi did not support the prosecution. She was declared hostile. She was cross-examined by the Prosecutor. In cross-examination, she has stated that she enquired from Hoshiar Singh who said about the scuffle but did not disclose the name with whom he had conflict. She denied that Shashikant and Wazir Chand gave beatings to deceased with fist and kick blows. PW-4 Satish Kumar, Radiographer has proved X-ray Ex.PW-4/A, X-ray report Ex.PW-4/B. PW-5 Hoshiar Singh has stated that he did not witness anything. He was declared hostile and was cross- examined by the Prosecutor. In cross-examination, he denied that on 31.5.1999 Shashikant and Wazir Chand gave beatings to Hoshiar Singh in his presence with kick and fist blows. PW-6 Dhani Ram has stated that when he visited the spot Hoshiar Singh was lying unconscious. He does not know who inflicted the injuries to him. He was declared hostile and was cross-examined by the Prosecutor. In cross-examination, he has denied that on 31.5.1999 at about 6.30 p.m. accused gave beating to Hoshiar Singh deceased with fist and kick blows. PW-7 Atul Kumar has stated that 7 he did not witness anything. He was declared hostile and was cross-examined by the Prosecutor. He denied that Shashikant gave beatings to his uncle Hoshiar Singh with kick and fist blows. PW-8 Santosh Kumari has stated that she does not know anything of the case. She was declared hostile and cross-examined. In cross- examination, nothing useful to the prosecution has been extracted. 11. PW-9 Dr. B.S.Rana has stated that the police moved an application Ex.PW-9/A on 1.6.1999 for medical examination of Hoshiar Singh. The police also asked for fitness of patient for making statement. He gave his opinion that Hoshiar Singh was fit to make statement and for MLC. He also opined that there was no clinical signs and symptoms which label the injuries as dangerous to life but final opinion would be given by the attending Medical Officer, Civil Hospital, Garli after investigation. He gave opinion on application Ex.PW-9/A. The patient was admitted and lateron referred to Dharamshala. The injuries on the person examined were possible with fist and kick blows. 12. In cross-examination PW-9 has stated that he did not prepare MLC of the patient. The observations that the injuries could be sustained by giving fist blows are based upon his memory. He had not recorded the clinical examination of the questions put by him to the patient as he was fit to make the statement or not. The statement of patient was recorded in his presence and was attested by him. It is nowhere written that the statement was read over to the patient and the same was accepted by him to be correct and only thereafter he signed the statement. The statement was 8 recorded in question answer form, then said he was asked question and thereafter the patient narrated the incident. The statement was given by the patient in local dialect and it was written by the police personnel in Hindi and not verbatim in the words/language of the patient. 13. PW-10 Suresh Kumar is the brother of the deceased. He is not an eye witness to the incident. He has stated that the police recorded the statement of his brother in the presence of doctor at Jawalaji hospital. He made a statement that he was beaten by Shashikant and Wazir Chand with fist and kick blows. The police recovered ‘Fauji’ shoes from the shelf of the house of the accused and packed and sealed them and he signed recovery memo Ex.PW-10/B. The shoes in the parcel are not the same which were taken by the police from the house of the accused. He identified the signatures of deceased on statement Ex.PW-10/C. In cross-examination, he has stated that his brother on being asked repeatedly by him informed that tea stall owner Hoshiar Singh had not given any beatings to him nor was he present at the spot. 14. PW-11 Rajinder Singh, ASI has proved application Ex.PW-2/A which he moved for postmortem of the deceased. He filled up inquest paper Ex.PW-2/B. PW-12 S.S.Chamyal has stated that on 1.6.1999 he was posted as Sub Divisional Magistrate, Dehra. In routine he might have informed the police of Police Station, Jawalamukhi for contacting the injured at Jawalamukhi hospital who was sent from Dehra. PW-13 Satish Kumar, Photographer has proved photographs Ex.PW-13/1 to Ex.PW-13/4 9 and negatives Ex.PW-13/5 to Ex.PW-13/8. PW-14 Dhian Singh did not support the prosecution and he was declared hostile, but in cross-examination, he stated nothing for the benefit of the prosecution. 15. PW-15 Ram Piari did not support the prosecution, she was declared hostile and cross-examined by the Prosecutor. In cross-examination, she denied that she made statement to the police that Atul told that Shashikant and Wazir Chand had killed Hoshiar Chand. PW-16 Braham Dass has stated that boots and socks of Hoshiar Singh were taken into possession by the police vide Ex.PW-10/C. PW-17 Amrit Lal, Photographer has proved the photographs of the dead body Ex.PW-17/A to Ex.PW-17/C, negatives Ex.PW-17/D to Ex.PW-17/F. 16. PW-18 Nathu Ram, Inspector is the Investigating Officer. He has stated that on 1.6.1999 at about 12. 00 p.m. He received telephonic message from Sub Divisional Magistrate, Dehra that quarrel had taken place at Garli and the injured had been admitted. This was reduced into writing vide rapat No. 11 dated 1.6.1999 in roznamcha, copy Ex.PW-18/A. He proceeded to Sub Divisional Hospital, Jawalamukhi alongwith C. Ramesh Chand. The application was given to doctor for his opinion. The doctor gave his opinion that Hoshiar Singh was in a fit position to make statement. He recorded the statement Ex.PW-10/C of Hoshiar Singh which was attested by the Medical Officer, who was on duty on that day. He also made rapat No. 15 Ex.PW-18/B in roznamcha regarding recording statement of Hoshiar Singh, thereupon FIR 10 Ex.PW-18/C was registered on 3.6.1999. On 2.6.1999 he received wireless message that Hoshiar Singh had expired. This message was reduced into writing vide Ex.PW-18/B. He prepared site plan Ex.PW-18/B. Pair of shoes of accused is Ex.P-4. In cross- examination, he has stated that there were 10-12 persons on the spot. He did not enquire about the treatment given to deceased. He did not ask the doctor who was present to record the statement of injured. He denied that statement of Hoshiar Singh was recorded in questions. He recorded the statement of Hoshiar Singh in Hindi and recorded the statement in same writing verbatim. The prosecution had given up Dr. R.K.Sharma, being formal witness. The appellant in his statement under Section 313 Cr.P.C. denied the prosecution case. 17. Ex.PW-1/A is the MLC of Hoshiar Singh. He was examined on 31.5.1999 at 8.00 p.m. Ex.PW-2/C is the postmortem report of the deceased, Ex.PW-2/D is separate opinion given by PW-2. Ex.PW-9/A is the application dated 1.6.1999 submitted to doctor. The doctor at about 1.40 p.m. on 1.6.1999 on Ex.PW-9/A has recorded that Hoshiar Singh was fit to give statement. There were no clinical signs and symptoms which label the injuries dangerous to life but final opinion would be given by the attending Medical Officer of Civil Hospital, Garli after investigation. The MLC would be prepared by the Medical Officer, who attended the patient first at Civil Hospital, Garli. 18. Ex.PW-10/C is the statement of deceased under Section 154 Cr.P.C. in which he has stated that Shashi Pal 11 (Shashikant) gave him beatings with his hands and ‘Fauji’ shoes. He was laid on the ground. He sustained injuries on the left side of his back in addition to injuries on his neck, chest and stomach, he felt internal pain. Wazir Singh was also there, tea vendor Hoshiar Singh also came there. Wazir Singh also gave him beatings with his hands. Shashi Pal and Wazir Singh after taking liquor at the instance of Hoshiar Singh tea vendor had given him beatings. The statement Ex.PW-10/C was recorded at 2.05 p.m. on 1.6.1999. 19. Ex.PW-18/A is the copy of rapat No. 11 dated 1.6.1999 recorded at 12.10 p.m. on the basis of telephonic information given by unknown person that Hoshiar Singh had been given beatings. The names of persons who gave beatings to Hoshiar Singh have not been mentioned in Ex.PW-18/A. PW-18 in his statement in the Court has stated that rapat No.11 was recorded on the information given by Sub Divisional Magistrate. 20. Ex.PW-18/B is the copy of rapat No. 15 dated 1.6.1999 recorded at 2.30 p.m. by PW-18 Inspector Nathu Ram. In Ex.PW-18/B reference of recording of statement of Hoshiar Singh has been given. Ex.PW-18/D is the copy of rapat No. 19 of roznamcha recorded at 3.15 p.m. that Hoshiar Singh had expired. Ex.PW-18/E is the spot map showing point ‘A’ location of two Kiosks of Mohinder Singh where the deceased was given beatings. 21. The learned counsel for the appellant has submitted that no alleged eye witness has supported the prosecution case. The prosecution case hinges entirely on Ex.PW-10/C statement under Section 154 Cr.P.C. which has been considered 12 as dying declaration of the deceased by the Court below. It has been submitted that in absence of Ex.PW-10/C there is no primary evidence regarding the occurrence. The Court below has erred in treating Ex.PW-10/C as dying declaration of deceased Hoshiar Singh and convicting appellant. He has submitted that Ex.PW-10/C does not inspire confidence. 22. The Supreme Court in Atbir vs. Government of NCT of Delhi (2010) 9 SCC 1 has analysed the principle governing the dying declaration as follows:- “(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make 13 a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” 23. The Supreme Court in Dalip Singh and others vs. State of Punjab AIR 1979 SC 1173 has held as follows:- “……We may also add that although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub- section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor. As observed by this court in Munnu Raja v. State of Madhya Pradesh (1976) 2 SCR 764: (AIR 1976 SC 2199) the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.” 24. The Supreme Court in Panchdeo Singh vs. State of Bihar (2002) 1 SCC 577 has held that dying declaration must inspire confidence of the court in case of any infirmity court should look for corroboration. In the event however of there being some infirmity, however, negligible it be, the court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however, it is otherwise, question of requirement of 14 a corroboration would not arise: dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. 25. The Supreme Court in Kajal Sen and others vs. State of Assam (2002) 2 SCC 551 has not accepted the dying declaration of the deceased made in Bengali language which was translated by PW-10 Dr. Debabrata Singh in English and explained the dying declaration by translating it in Bengali to deceased. He admitted that he was knowing Bengali, he first heard the entire statement of deceased Piklu in Bengali and keeping the same in memory, he wrote down the dying declaration in English. He admitted that he has not mentioned so in the dying declaration. The Supreme Court in J. Ramulu vs. State of Andhra Pradesh (2009) 16 SCC 432 has held that suspicion is not substituted by proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which conviction may not be rested on the basis thereof. 26. On behalf of the respondent P.V. Radhakrishna vs. State of Karnataka 2003 Cri. L.J. 3717 (SC) has been relied in support of the submission that in the case in hand dying declaration Ex.PW-10/C has been proved and conviction has been rightly based on the basis of Ex.PW-10/C. The Supreme Court has also held in the said judgment that the court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. Once the Court is satisfied 15 that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. In Chirra Shivraj vs. State of Andhra Pradesh 2011 (1) Crimes 92 (SC) it has been held that a dying declaration which has been found to be voluntary and truthful and which is free from any doubt can be the sole basis for convicting the accused. 27. The respondent has also relied Sanjay Kumar vs. State of H.P. Latest HLJ 2007 (HP) 551 where statement under Section 154 Cr.P.C. was considered as dying declaration. It has been submitted that the trial Court has rightly considered Ex.PW-10/C as dying declaration and convicted the appellant inasmuch as Ex.PW-10/C fully proves the guilt of the accused. 28. No eye witness has supported the prosecution case. The learned Additional Sessions Judge has mainly relied Ex. PW-10/C in convicting the appellant. Ex.PW-10/C was recorded under Section 154 Cr.P.C. by PW-18 Nathu Ram, Inspector in the hospital. PW-10 Suresh Kumar brother of the deceased has proved the signatures of deceased on statement Ex.PW-10/C. He has not proved the contents of Ex.PW-10/C. PW-10 has stated that police recorded the statement of his brother in the presence of doctor. In the statement Ex.PW-10/C, it has been stated that Shashipal (Shashikant) gave beatings with his hands and ‘Fauji’ boots, Wazir Chand also gave beatings with hands. In Ex.PW-10/C fist and kick blows have been attributed to Shashipal (Shashikant) and beatings with hands to Wazir Chand. 16 29. PW-10 Suresh Kumar has also stated that the deceased made a statement that he was beaten by Shashikant and Wazir Chand with fist and kick blows. PW-10 has not stated that deceased had stated that fist and kick blows were given by Shashikant and Wazir Chand gave beatings with hands. PW-9 in his examination-in-chief has not stated that statement Ex.PW-10/C was recorded by PW-18 in his presence or he attested the statement Ex.PW-10/C. PW-9 has stated that