Criminal Revision No.21 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.21 of 2009 Date of decision : 4.11.2009 Rajesh .....Petitioner Versus State of Haryana and others ...Respondents **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Akshay Jain, Advocate for the petitioner. Mr. S.S.Patter, Senior Deputy Advocate General, Haryana Mr. Ashwani Gaur, Advocate for respondent no.2. S. D. ANAND, J. The order under challenge, at the hands of petitioner- complainant is dated 11.12.2008, vide which the learned Trial Judge declined to order for summoning of Ashok Kumar (father-in-law of the deceased lady) to face trial under Sections 498 and 304-B IPC. In support of the order, the learned Trial Court drew sustenance from the fact that Ex. P-1 ( i.e. the application which notified the offence to the police and, on the basis whereof, FIR came to be registered) did not attribute any specific role to Ashok Kumar aforementioned. It is also noticed by the learned Trial Judge in the context that even in the course of her statement under Section 164 Cr.P.C. (recorded on 29.12.2007, the deceased lady had attributed the main role only to her mother-in-law and there was only a passing reference therein Criminal Revision No.21 of 2009 -2- **** that her father-in-law also used to side with his wife at times. Yet another factor which weighed with the learned Trial Judge was that though Rajesh PW-1 whose statement (forms the foundational premise of the plea to summon Ashok Kumar) entered the witness box on 27.11.2008, the application under Section 319 Cr.P.C. recorded the typed date of the application as 6.6.2008. Learned Trial Judge drew an inference therefrom that Rajesh Kumar had already made up his mind to attribute the role to Ashok Kumar. Learned counsel, appearing on behalf of the petitioner- complainant, argued that the learned Trial Judge could not have adjudicated upon the validity or otherwise of dying declaration dated 29.12.2007 and he ought to have relied upon whatever role was attributed to Ashok Kumar and ordered his summoning to face the trial. The plea raised thereby is that the value to be attached to the relevant part of the dying declaration could be adjudicated upon at the time of final arguments by the learned Trial Court. The plea was contested by the learned counsel for the respondents who argued that though the provisions of Section 319 Cr.P.C. confer a power of wide amplitude upon the Court, but the exercise thereof has to be resorted to sparingly and the Court, before a person is summoned to face trial, must satisfy itself that there was strong possibility of his conviction. Reliance, in support, was placed on Lal Suraj @ Suraj Singh and another Vs. State of Jharkhand 2009(1) R.C.R. (Criminal) 504. I have given my careful consideration to the point under adjudication. It is apparent from a perusal of Ex. P1 that no specific role, at Criminal Revision No.21 of 2009 -3- **** all had been attributed to Ashok Kumar. The same applies to dying declaration dated 29.12.2007 which the deceased had made before a Judicial Magistrate. In the course thereof, the essential incriminating role had been attributed only to the mother-in-law. The only averment relatable to Ashok Kumar was that he used to, at times, side with his wife. If one peruses the whole of the dying declaration recorded by the learned Judicial Magistrate, one would find that entire incriminating role is attributed to the mother-in-law only. This inference would be apparent from a perusal of the translated dying declaration which reads as under:- I got married about six months ago. My mother-in-law is in the habit of picking up quarrel with me in the context of dowry demand. My father-in-law would also join her at times. If my husband would intervene, she would threaten him. Last evening I had been to the kitchen on the upper floor to fetch a cleaning cloth. A candle burning in the kitchen fell down. Kerosene oil lying in the kitchen caught fire and I got burnt. My husband was available at that time and my mother-in-law was away to fetch milk. My father-in-law was sitting outside the house. My husband came over and got me admitted to a hospital. I caught fire on account of candle having fallen. My mother-in-law harasses and belabours me on account of demand of dowry. I had brought the facts to the notice of my parents who once came over and persuaded her(to be reasonable) but she again conducted herself in that manner only. The position that, thus, emerges is that there is a dying declaration recorded by a Judicial Magistrate and, as against it, there is Criminal Revision No.21 of 2009 -4- **** also a dying declaration recorded by a Police Officer. The former dying declaration had been recorded after obtaining the medical certification about the fitness of the declarant to make it. As against it, the latter dying declaration was recorded without there being any certification about the fitness or otherwise of declarant to make it and there also is no averment that any effort had been made by the Police Officer recording it to obtain the presence of a Judicial Magistrate to record it and there also is no averment that the circumstances did not admit of any endeavour to obtain the presence of a Judicial Magistrate. Interestingly enough though, the Police Officer who recorded the subsequent dying declaration is the same who had obtained the presence of a Judicial Magistrate and got the earlier dying declaration recorded. In that view of things, the first dying declaration which did not attribute any specific role to Ashok Kumar may have to be accorded priority in the matter of consideration against the latter dying declaration. In the light of the fact that the above quoted dying declaration came to be recorded on 29.12.2007 by a Judicial Magistrate and there was no specific role attributed to the father-in-law during the course of Ex. P1, the recording of incriminating dying declaration by a Police Officer on 31.1.2008 is not likely to carry any legal value to warrant conviction. Insofar as ASI Ram Niwas (who had allegedly recorded the dying declaration dated 31.1.2008) is concerned, he was examined before the Trial Court on 18.4.2009. It was he only who had got the earlier statement under Section 164 Cr.P.C. recorded by requisitioning the services of a Judicial Magistrate to the hospital. Insofar as the dying declaration dated 31.1.2008 is concerned, all that this witness stated in his examination-in- chief was that he recorded that statement on 31.1.2008 (“I recorded the Criminal Revision No.21 of 2009 -5- **** statement of Hem Lata injured on 31.1.2008.”) He did not obtain any medical opinion about fitness or otherwise of declarant from any Medical Officer. It is not in his statement that there was no time for him to secure the services of a Judicial Magistrate for recording of that statement. Though, it is not to suggest that a Police Officer is not competent to record a dying declaration, at the same time the validity or otherwise thereof is to be appreciated in the light of the circumstances of the case. In the case before this Court, there are circumstances to point out that it would be difficult to place reliance upon the subsequent dying declaration. In the light of fore-going discussion, I find that learned Trial Court has exercised its discretion in a legal, proper and judicious manner and impugned order does not call for any interference. Dismissed. November 04, 2008 (S. D. ANAND) Pka JUDGE Note: Whether to be referred to Reporter: Yes/No Criminal Revision No.21 of 2009 -6- ****