IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.198-DB of 2003 Date of Decision: 24.04.2009 Jaswinder Singh @ Binder Singh and another Appellants Versus State of Punjab Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Dr.Anmol Rattan Sidhu, Senior Advocate with Mr.Nandan Jindal, Advocate for appellant No.1 Mr.R.S.Bains, Advocate for appellant No.2 Mr.D.S.Brar, Deputy Advocate General, Punjab …. Jasbir Singh, J. Appellants Jaswinder Singh @ Binder Singh son of Hazura Singh and Gurpiardass @ Kala son of Budhu Dass have filed this appeal to lay challenge to the judgment and order dated 6.2.2003 vide which they were convicted for commission of an offence under Section 302 read with Section Criminal Appeal No.198-DB of 2003 2 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- each. It was allegation against the appellants that they had caused injuries to Nek Singh son of Tota Singh on 15.5.2001, who died thereafter on 25.5.2001. Case of the prosecution as noticed by the trial Court in paragraph No.2 of its judgment reads thus:- “In his statement dated 20.5.2001, Nek Singh (since deceased) s/o Tota Singh, got recorded with HC Sampuran Singh that on 15.5.01 he had been summoned by Binder Singh son of Hazura Singh of Sunam, who asked him to accompany him to village Namol where Jupa Singh s/o Rania Singh was residing. Binder Singh had complained to the complainant that he engaged Jupa Singh as a servant for one year on the payment of Rs.12000/- lump sum at the assurance and guarantee of the complainant, Nek Singh. However, said servant Jupa Singh had left the work after six months. As per the request of Binder Singh, the complainant Nek Singh reached the house of Binder Singh at about 4 P.M. Binder Singh and the complainant, Nek Singh, went to the house of Kaka Singh, Halwai at Sunam. Kaka Singh was not present there. Binder Singh (accused), thereafter took the complainant to a tent shop, where Kaka Singh along with other persons was present. Binder Singh (accused) along with Kaka Singh (accused) and another person, aged about 30-35 years started taking liquor in the said shop. Criminal Appeal No.198-DB of 2003 3 At about 5 P.M. Binder Singh (accused) along with complainant and Kaka Singh (accused) and the third person went to village Namol. The complainant inquired the where-abouts of Jupa Singh from his house and he was informed that Jupa Singh was working in the fields of Bhan Singh of Namol. Thereafter the complainant along with Binder Singh (accused) and another person went to the fields of Bhan Singh and found Jupa Singh working in the fields. The complainant asked Jupa Singh to return the remaining sum to Binder Singh, whereupon Jupa Singh promised to return the remaining sum to Binder Singh (accused) within twenty days. There-after Binder Singh took the complainant to Longowal. Kaka Singh (accused) and the third person also accompanied the complainant and Binder Singh (accused). At Longowal they met a lady whose name is not known to the complainant, but she was called as Pardhan. There-after the complainant was taken to village Cheema, where also Binder Singh (accused) along with Kaka Singh (accused) and third person started taking liquor in a tent shop. They also offered liquor to the complainant. The complainant became heavily drunk. At about 9 P.M. Binder Singh (accused) along with complainant (Nek Singh), Kaka Singh (accused) and the third person started towards Sunam. When they reached near the turn towards drain bridge, Binder Singh (accused) stopped his scooter and caught hold of the complainant (Nek Singh). Binder Singh (accused) twisted the neck of complainant, Criminal Appeal No.198-DB of 2003 4 whereas Kaka Singh (accused) and the third person twisted the legs and arms of the complainant. All the three persons gave serious internal injuries to the complainant. There-after Binder Singh (accused) left the complainant at his house.” It is further case of the prosecution that on 16.5.2001 when deceased complained of pain, he was taken to a private doctor. Thereafter on 17.5.2001, the deceased was got admitted in Civil Hospital, Sangrur by his son Bhura Singh. It has also come on record that on receipt of intimation, Head Constable Sampuran Singh (PW6) went to Civil Hospital, Sangrur to record statement of the deceased. On 18th and 19th May 2001, doctor on duty, declared the deceased unfit to make his statement, as he was not speaking clearly (Ex.PJ/1). Sampuran Singh (PW6) again moved an application on 20.5.2001 (Ex.PF), whereupon PW7 Dr.Karamjit Singh noted that the deceased was fit to make his statement (Ex.PF/1). Sampuran Singh (PW6) then recorded statement of the deceased as found in earlier part of this order. He made a request to the doctor to give his opinion regarding nature of the injuries. He also recorded DDR No.14 on 20.5.2001 recording therein statement of the deceased (Ex.PH). This witness moved an application (Ex.PQ) before Dr.Sohan Lal Dua on 25.5.2001 with a request that he be intimated as to whether injury No.1 on person of the deceased was dangerous to life or not. On that application following remark was given by the doctor on 25.5.2001:- “As there is no external mark of injury as mentioned in MLR, the injury was declared grievous and now patient is still Criminal Appeal No.198-DB of 2003 5 suffering from quadurphing. The injury is being dangerous to life stands.” As per case of the prosecution Nek Singh died in the hospital on 25.5.2001. On receipt of intimation, FIR No.192 under Section 302/34 IPC was registered against the appellants in police station Sunam on 25.5.2001. Inquest report on the dead body was prepared and it was sent for the post- mortem examination, which was conducted by Dr.Sanjiv Jindal (PW9) on 26.5.2001. Regarding injury to the deceased, he has made the following observations:- “On dissection of spinal cord at cervical spine- spinal cord was lacerated and edematious alongwith laceration of meniges anteriorly at level of C3-C4 and C5 vertebra. Haematoma at level of C3, C4, and C5 present anteriorly. No fracture of any vertebra was seen. Walls, ribs and cartilages were normal, pleurae congested, larynx and trachea vomitus material present.” As per opinion of this witness, cause of death was due to spinal cord cervical injury and its associated complications. The injury was found ante-mortem in nature and was sufficient to cause death in this case in ordinary course of nature. In his cross-examination, this witness has stated that no external mark of injury was found on person of the deceased. It was further stated that injury could be the result of accidental fall on the ground. On completion of investigation, final report was put in Court for trial. The appellants were charge sheeted to which they pleaded not guilty Criminal Appeal No.198-DB of 2003 6 and claimed trial. Prosecution produced nine witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the appellants-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, claimed innocence and false implication. In their statements, they specifically averred as under:- “The PWs have deposed falsely. The alleged statement of Nek Singh was fabricated by the police in connivance with his relatives, because the relatives of Nek Singh were having suspicion against us that Nek Singh used to take liquor with us and he had an accidental fall under the influence of liquor and due to that they were demanding money from us and on our refusal falsely involved in this case.” The trial Court on appraisal of evidence on record, convicted and sentenced the appellants as found mentioned in earlier part of this order. Counsel for the appellants, by making reference to the statements made by PW2 to PW5 and medical evidence on record, argued that it was a case of no evidence against the appellants. It was averred that statement made by the deceased (Ex.PG) was not reliable. It was fabricated by Sampuran Singh (PW6). It was further stated that the above said statement was not made in the presence of the doctor or any other witness. The doctor has not opined that the deceased was in a fit state of mind to make that statement. The deceased was not under eminent danger of death as such that statement cannot be treated as a dying declaration. There was no Criminal Appeal No.198-DB of 2003 7 external injury to the deceased and also there was no fracture of the spinal cord. Counsel further stated that there was no motive to cause injuries to the deceased. In the alternative, it was argued that something may have happened under the influence of liquor. There was no intention on the part of the appellants to kill the deceased. It was prayed that judgment and order under challenge be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by the State counsel. By making reference to the statements made by the deceased and Sampuran Singh (PW6), who had recorded the same, it was argued that the prosecution was successful in bringing home guilt of the appellants-accused, as such, judgment and order passed against them was justified. With the help rendered by counsel for both the parties, we have gone through the contents of the paper book. PW2 Ajaib Singh was cited as an eye witness. During trial he has failed to support case of the prosecution and was declared hostile. PW3 and PW4 are the sons and PW5 is the daughter of the deceased. They also did not support case of the prosecution and were declared hostile. In their statements, they rather made an attempt to support the appellants-accused by stating that their father received injuries due to fall in their house, when he was under the influence of liquor. Close examination of statements made by the above said witnesses reveal that they appear to have been won over by the defence. It appears that sons and daughter have failed their father and they have deposed in favour of the appellants-accused for reasons best known to them. PW3, PW4 and PW5, in their signed statements, which are attached with the Criminal Appeal No.198-DB of 2003 8 inquest report, have specifically alleged that their father was criminally assaulted by the appellants. In Court they have taken a summersault and deposed to the contrary. They belong to weaker section of the society. Under the circumstances, anything can be inferred. The trial Court has passed judgment of conviction, primarily on the basis of statement made by the deceased (Ex.PG), deposition made by Head Constable Sampuran Singh (PW6) and medical evidence on record. It is true that no mark of external injury was found on person of the deceased and further that there was no fracture of the spinal cord. The case of the prosecution was that neck of the deceased was twisted by the appellants. We feel that, in such a situation, external injury may not appear on body of the deceased. Whereas to the contrary, if it was a case of fall, as propagated by the defence, the deceased was bound to get some external injury. Dr.Sanjiv Jindal (PW9), at the time of post-mortem examination, found serious injury to the spinal cord of the deceased, which he found was sufficient to cause death in ordinary course of nature. As per opinion of this witness, above said injury and its associated complications were the cause of death in this case. Now we are to analyse whether reliance of the trial Court on the statement made by the deceased (Ex.PG) was justified or not. Section 32 of the Indian Evidence Act, 1872 reads thus:- “32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of Criminal Appeal No.198-DB of 2003 9 the case, appears to the Court unreasonable, are themselves relevant facts in the following cases - (1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. xxx xxx xxx xxx” In this case, statement of the deceased Nek Singh was recorded on 20.5.2001, on the basis of which Daily Diary Report was recorded in the police station and after his death, on 25.5.2001, FIR No.192 was registered against the appellants. In his statement (Ex.PG) deceased Nek Singh had given narration of the circumstances under which he went to the appellants, was taken from one place to another and then injuries were caused to him after serving liquor. He has specifically stated that appellant No.1 twisted his neck and appellant No.2 twisted his arms with the help of third unknown person and then gave internal injuries to him on his body. It has also come on record that on 16.5.2001, Nek Singh complained of pain and was taken to a private hospital and on 17.5.2001, he was shifted to Civil Hospital at Sangrur for treatment. For two days, he was not fit to make the statement. On 20.5.2001, he was declared fit to make the statement by the doctor on duty and thereafter, his statement (Ex.PG) was recorded by Head Constable Criminal Appeal No.198-DB of 2003 10 Sampuran Singh (PW6). We feel that statement of the deceased, if inspires confidence, can be relied upon and taken as a relevant circumstance with regard to cause of his/her death. There is nothing on record that Nek Singh was tutored by anybody at any time. There is no evidence before us that when his statement was recorded, any of his relations was available. The defence has tried to assail his statement by stating that Head Constable Sampuran Singh (PW6) had obtained thumb impression of the deceased on blank papers. This plea is liable to be rejected. Head Constable Sampuran Singh (PW6) is a government official, he has no enmity with the appellants. He was not related to the deceased. Under these circumstances, it cannot be expected that he will try to fabricate and forge evidence against the appellants to frame them in a false case. Dr.Karamjit Singh (PW7) has categorically stated that on an application moved, he has declared Nek Singh fit to make statement on 20.5.2001. PW6 Sampuran Singh has also stated that after getting certificate from the doctor, he has recorded statement of the deceased. We feel that an official of the rank of a Head Constable will not dare to get signatures of a patient, on blank papers, in the presence of doctors and other staff. Their Lordships of the Supreme Court in Smt. Laxmi v. Om Parkash and others, 2001(3) RCR (Criminal) 358, have discussed the importance of dying declaration during trial and observed as under: “The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on 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 Criminal Appeal No.198-DB of 2003 11 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 safe basis for conviction.” We have noticed in earlier part of the judgment that the deceased Nek Singh was declared fit to make the statement. In his long deposition, he has given vivid description as to how and for what purpose, he was summoned by the appellant No1. to his house. He reached there and thereafter he was taken to different places on a scooter. He has further stated that as to how the appellants consumed liquor and also served it to him. The deceased has given clear description of the injury caused to him by the Criminal Appeal No.198-DB of 2003 12 appellants. His statement does not indicate that he was deposing falsely with a view to get any benefit. Merely because his statement was not recorded by a magistrate, it cannot be discarded. Their Lordships of the Hon’ble Supreme Court in Balbir Singh and another v. State of Punjab, (2006) 12 Supreme Court Cases 283, have specifically stated that manner or form in which dying declaration is to be recorded is not very material, whether it is made in a prescribed manner or in form of question answers, it also does not matter if the statement is voluntary and not tutored. In the present case, we are convinced that the statement was made by the deceased voluntarily and as such trial Court’s reliance upon it was justified. Deposition made by his sons and daughter PW3 to PW5 that the deceased received injuries in an accidental fall in the house, is belied, when we look at the intimation sent by the doctor to the police station wherein he has specifically stated that it was a medico legal case. If it was a case of accidental fall, the doctor was not expected to send intimation to the police. Doctor might have sent that intimation either at the asking of the deceased or his relations. The relation witnesses appear to have succumbed under pressure. If police had recorded a wrong version, it was for them to take action immediately at that time. It is nobody’s case that after 20.5.2001 till the time of his death, the deceased was not in his senses. If he had given a wrong statement, he could have been persuaded to change it. Their Lordships of the Supreme Court in Sher Singh and another v. State of Punjab, (2008) 4 Supreme Court Cases 265, has opined that “acceptability of a dying declaration is greater because the declaration is Criminal Appeal No.198-DB of 2003 13 made in extremity when the party is at the verge of death. One rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of dying declaration.” It was further observed that the Courts are required to analyse the dying declaration in a careful manner as the accused has no power to cross-examine the maker of the statement and if the statement is truthful, the same can be relied upon to convict an accused. Minor technicalities with regard to opinion of the doctor etc. are to be ignored. In Bijoy Das v. State of West Bengal, (2008) 4 Supreme Court Cases 511, their lordships of the Supreme Court has opined that there was no reason as to why the doctor or the other witnesses should make a false statement about the dying declaration especially when there is no allegation of enmity between the accused and those witnesses (Para 10). Similarly, in the case of Narain Singh v. State of Haryana, AIR 2004 Supreme Court 1616, after discussing the entire case law on the subject, it was opined that ‘if a dying declaration is found to be reliable, then there is no need of any corroboration by any witness and conviction can be sustained on its basis alone. Merely because statement of the deceased was not recorded before a Magistrate is no ground to discard the dying declaration made by the deceased’. Their Lordships of the Supreme Court in Pores Yadav and others v. State of Bihar , (1999) 2 Supreme Court Cases 126 and in Mange Ram and another v. State, Delhi Administration, 1998 Supreme Court Cases (Criminal) 909, has justified reliance of the Courts below on dying Criminal Appeal No.198-DB of 2003 14 declaration made by the deceased to the Investigating Officer, as it was found to be reliable and trust-worthy. Same is the situation in the present case. We are convinced that statement made by the deceased (Ex.PG) was truthful. Their Lordships of the Hon’ble Supreme Court in Ravi and another v. State of Tamil Nadu, (2004) 10 SCC 776, has mandated that ‘if declaration is found to be truthful the same alone can form basis of conviction of an accused and it does not require any further corroboration whatsoever in law.’ To the same effect is the opinion of their Lordships of the Hon’ble Supreme Court in Muthu Kutty and another v. State by Inspector of Police, Tamil Nadu (2005) 9 SCC 113. Lengthy cross examination of PW6 Head Constable Sampuran Singh has failed to shatter his testimony. He is not an interested witness. He is a public servant who has stood test of the pressure without succumbing before it, unlike the sons and daughter of the deceased. This witness has specifically denied a suggestion that he had got affixed thumb impression of the deceased on blank papers and that the deceased was not fit to make the statement. It appears that this witness has deposed the truth. In view of above, we can safely say that death has occurred on account of injury received by the deceased at the hands of the appellants. Now it is to be seen whether offence committed by the appellants would fall within the purview of Section 302 IPC or any other criminal provision of law. Criminal Appeal No.198-DB of 2003 15 It is apparent from the records that the appellants and the deceased remained together throughout the day. Appellants also served liquor to the deceased. It is only allegation against them that at about 9.00 PM on 15.5.2001 they had twisted neck and hands of the deceased. Thereafter they left him in his house. Sequence of events indicates that may be under the influence of the liquor or on account of some altercation, above said injury was caused to the deceased by the appellants. As per facts mentioned above we feel that offence committed by them would fall under the purview of Section 304 Part-II IPC. In view of findings given above, we partly allow this appeal, set aside conviction of the appellants under Section 302 IPC, however, we convict them for commission of an offence under Section 304 Part-II read with Section 34 IPC. Both are sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- each. In default of non-payment, they shall further undergo imprisonment for one year. (Jasbir Singh) Judge 24.04.2009 (Jora Singh) gk Judge