215 Crle AppealNoe702DB of 2002 2212 9 r9 In the HighCourt ofPunjaband Haryana at Chandigarh Crle AppeaINo 702DB of2002 Date ofDecision June 02 2011 SurjitSingh Appellant 1 versus Q 0 StateofPunjab Co I 0 Respondent Z Coram2 HONBLE MR JUSTICE MMKUMAR 2 HONBLE MR JUSTICE GURDEV SINGH tr 1RS I t Present Mr APS Deol SrAdvocate Z with Mr Vishal RattanLamba Advocate for the appellant CO Mr Suvir SehgalAddl Advocate General Punjab S for the Z RR5t 1To be referredto theReporteror not2 W 2 Whether should be reported in theDigest2 Gurdev Sineh Je The present appealhas been preferredby SurjitSingh againstthe judgmentdated 253 2002 passedby SessionsJudgeFaridkot vide which he was convicted for the offence under Section 302 IPC and was sentence to undergorigorous RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 216 Crl AppealNoe702DB of 2002 222 for life and to pay a fine of 100001 and in default thereoftofurtherundergorigorous for a periodof one year The story in brief is that Reeta Rani deceased was marriedto SurjitSinghaccused and from that wedlock one son and were born who at thetime of occurrence were six years and four yearsold There used to remain constant disputebetweenthe deceased and the accused Slnce the dayof their He used to abuseher 1 r withoutany cause andwhen shehad beenpayinghim in the same coin he 0 C0 usedto beather On 63999 he came back to the house at about 5155 PelTl and drank the water She also demandedwater from him and the C5 I same was givento her After she consumedthat water she Z headacheand startedvomitingIt was onlythereafter that she realisedthat theaccusedhadgiven to her aftermixingthe same C I with water On account of weakness she Iaid on the cot and askedthe l accusedto gettreatment for her He did not care andremarkedthat he had Z already done what he wantedto do andthat in case she was to die thenshe OO should die On 7771999 her mother Devi PW7 cameto her W2 Z houseby chance to enquireabout her health and she disclosed all those CL facts to her lt was onlythereafterthat she was removedto Dr Pirthipal 1 v1 3 Memorial Hospital On 81999she was removedto Civil HospitalKotkapuraDr BKapoor PWl found that it was a case of and the condition of the deceasedwas very serious he referredher to GGS Medical CollegeFaridkot and sent written information Ex PA to thepolicestatlOlle On thereceiptof that information SutjitSinghASI PU10 went to the GGS Medical Collge RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 217 0 Crle AppealNoe702DB of2002 3 1 Faridkot and made Ex PM to the doctor for aboutthe fltnessofthe deceasedto makeher statement She was declared fit to makeher statement by the doctor vide his endorsementEx PMll Thereafterthe ASI recordedher statement Ex PI in which shedisclosed all the above statedfacts The ASl aer makinghis endorsementupon that statement sent the same to thepolicestationand on the basisthereof FIR Ex PQ was recordedunder Section307 IPC againstthe accused 1 C2 He recordedthe statementsof the witnessesunder Section 161 CrP 0 0 The deceaseddied at 630 pm and written information Ex PN to that effect was sent to the policestation The ASI still in the hospital was 0 I when that informationwas conveyed to him He sent his ruqa Ex PK to Z the poIicestation and on the basisthereof a reportwas recordedin the DDR at Srlllo 29 and the offence was convertedfrom 307 IPC to 302 IPC JagjitSinghInspector SHOPW4 came to the Medical College I C andtook from AS1 He prepared theinquest reportEx PO Z lil respectof the deadbodyof the deceasedand sent the same for post 00 mortem examlnation The autopsyon the deadbody was by m7 Z Dr KCAggarwalPWm8 who deferredthe opinionregarding the cause of ll death till the receiptofthe reportofthe Chemical Examiner to whom the e e 4 1 1 Vlscera ofthe deadbodywas sent After the postmortem examinationthe weanngapparels found on the deadbodywere produced beforethe SHO who convertedthoseinto a parceland sealedthe same with his seal JSB and on COIlllngback to the policestatiOll the same with the MHC The Chemical Examiner after examination detectedaluminillm pesticide in the viscera ofthe deceasedand gavehis reportEx RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 218 Crle AppealNoe702DB of2002 14 PH to that effect After the receiptof that report it was opinedbyDr vide his reportEx PHJ1 that the cause of death of the deceasedwas aluminium pesticidepoison which was ante mortem and was sufficient to cause deathin the ordinary courseof nature On ll1999 the SHO went to the placeof occurrence and after the san prepared the roughsite planEx PAA with 1 correct marginal notes The map on scale Ex PE ofthe placeof occurrence was 1 r gotprepared from Gurdial SinghKataria Draftsman PH 5 In the course 0 of the accused was arrestedand after thereof 0 I challan was put lIl before the Chief Judicial Magistrate who committed C9 thesame to the Court of Sessionon the groundthat offence under Section Z 302 IPC wasexclusively triablebytheCourt ofSession The provisionsof Section 207 CrPC were 0 complied with by thecopiesof the documentssent alongwith I t the policereport and relied upon by the to the accused Z From the perusalof thosedocumentsand afterhearing Public Prosecutor D for the State and the accused in person the learned SessionsJudge 3 Z found sufficient groundsfor that the accused committed Llm offence under Section 302 IPC He was charged Il 3 to which he pleaded not guiltyandclaimedtrial To prove the guiltof the accused examined Dr BKapoorPVl Raj Rani PH Hardev Singh constable PW3 JagjitSinghconstable PW4 Gurdial SinghKataria Deaftsman PW5 JagdishKumar PW6 Rani PH Dr ICKAggarwalPW 8 Harinder SinghASI PW9 SurjitSinghASI PH10 AmaljitSingl RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 219 Crl AppealNoe70249B of 2002 2252 HC PW41 GurdarshanSinghPV12 Dr Manvir GuptaPW13 and JagjitSinghInspectorPWI After the close of the evidence the accused was examinedby the learnedtrial court and his statementwas recordedunder Section 313 CrPC The clrcumstances appearingagainst him in the evidencewere putto him in order to enablehim to explain the same He denied all thosecircumstancesand pleaded that he 1 Ll had goodrelations with his wifieceased and theyhad been living 0 CAO in their house at Thana Singhhusband of the I SlSter of her mother had been her as he wasnot havingood C5 relationswith him He askedthat Thana Singhnot to visit their house Z upon which the deceasedrepliedthathe was her uncle and would continue to visit their house When he madeit clear that he would not allow Thana Singhto come to their house she took the poisonoussubstanceherself I r 1 in anger or as she was of sensitivenature The Z next morninghe noticed that her condition was not goodand took her to fil Dr PirthipalMemorial HospitalKotkapurafor her treatment Her W2 Z condition improvedand she disclosed to the doctor that she took the tl poisonous substance at her OWll The doctor informed thepolice which 1 3 cameto thatplaceand recordedher statement in which shereiteratedthe same stand taken by her before the doctor He called her mother and brotherto that placeand Thana Singhalso came with them All ofthem started with him and took the deceased to Civil Hospital and then to GGS Medical Collegeand HospitalFaridkot without his consent Thereafter all of them in connivance with Suzjit 1 RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 220 Crle AppealNo 702eDBof2002 6 SinghASI concocted a false case and fabricatedthe statement of the deceasedto falsely him The accusedwas called upon to enter on his defencebut he did not produce any evidencein his defence We haveheardleamedcounselfor both the sides It was submittedbyleamedsenior counselfor the accusedthat conviction ofthe accusedcould not havebeenrecordedon thebasisofthe dyingdeclarationwhich was recordedby the Offlcer As 1C per the Rules containedin Chapter 134 of the Rules and Ordersof 0 0 Punjaband HaryanaHighCourt VolumeIII the same was required to be recordedbya Judicial The failed to examinethe C9 I doctorfor provingthat the of thatdyingdeclaration Z the deceasedwas in fit mentalcondition Even the Offlcer has not said that the of that statement she was 0 I conscious and was 111fit mental condition Therefore the trial court committedan illegalitywhile the conviction of the accusedOIl Z er thebasisof thatdyingdeclaration No doubt the alsoproved r on record the oral dyingdeclaration alleged to have been madeby the 7 Z deceasedbefore her mother KaushalyaRani PW but she has not ll glven the exact words as usedbythedeceasedand as such that oral dying 4 5 declarationis not admissible He furthersubmittedthatfrom thestatement ofdoctor Manvir GuptaPH13 it standsprovedthat the deceasedherself had taken aluminium tablets after havinga flghtwith the accused It also stands proved from the evidence producedby the that at the time the dyingdeclarationstatedto have been recorded by the Offlcer the deceased was not in a flt RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 221 6 CrI AppealNo 702DB of 2002 227 42 1 conditionto makethe same as shehad very feeblepulseand such a person cannotbe said to have sufferedsuch a statement He also tried to contend that the celphostabletsemit very pungentsmell and such a substance could not have been consumedbythe deceasedafter having been offered by the accused That also makes the allegeddying declaration to be doubtfuland unworthyof belief He his bythefollowing 1 C lIJaipal v State ofHaryana20031Supreme Court Cases 169 0 0 2IKanchyKomurammave StateofAP 1995Supp41SCC 118 I 31StateOfPunjab vo Sita Devi 199631RCR 1minall320 C5 I On the other hand it was submittedbylearned Statecounsel Z that thereis no of law that thedyingdeclarationbeforesame can be relied upon must be recordedbya Judicial MagistrateIt hasbeen 0 provedby the prosecutionthat the Officer madeefforts to I get the statement of the deceasedrecorded from the Executive Z andwhen he foundthat no such CO was available he to recordthe same after the S Z of the doctor the fltnessof the deceasedto make the Om statement No doubt the doctorhas not been examinedfor provingthat 1 0 but the endorsement of that doctor was provedby the Offlcer and the same was never by the accused The oraI dyingdeclarationmadebythedeceasedbefore her motheris also admissible111 evidence and that corroboratesthe dying declarationmade by her before the Offlcer Dr Manvir GuptaPW3 never reducedinto writingthe allegedstatementof the RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document P 222 Crle AppealNo 702DB of2002 8 deceasedmade before him and the records provedby that witness are totallysilent about themaking of such a statement Thereforeno reliance can be placed on that oral statement alleged to havebeenmade by the deceased It stands provedfrom the evidencethat the deceasedwhile in fit stateof mind madethedyingdeclaration ExPI before the Offlcer That dyingdeclarationinspires full confldence as the deceased who was justat the verge of death m r would have statedthe truthand onlythe truth A personunder eminent 0 C danger of deathwill not go to his Lord bya lie on the lips The trial court did not commit any illegalitywhile the conviction of the C5 accusedon the basisof that dyingdeclarationwhich standscorroborated Z by the other evidence producedon the record He his submissionsbythefollowing r llKulwant Singhand others VS State of Punjab 200419 I Supreme Court Cases 257 Z 21VidhyaDevi and another VS State of Haryana 200419 QO 4 Supreme Court Cases 476 we Z 31DayalSinghVSe State Of Maharashtra 2007112 supreme 11 Court Cases 452 J 4IShamShankar Kankaria VSe State of Maharashtra 2006113 Supreme Court Cases 165 51Darshna Devi ve State ofPunjal39531RCR4imina11646 Can it be said that onlya dyingdeclarationmade before the JudiciaI 1S admissiblein evidenceand not a dyingdeclaration madebeforethe policeofficiall Officer2 As per Rule 20f RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 223 Crl AppealNoe 702DB of2002 229 1 1 Chapter13A of the HighCourt Rules and Orders VolumeaIII where a personwhose evidence is essentialto the of a criminal charge or to theproper of the alleged cnme lS ln dangerof dying before the enquiry or the trial of the case commences his statement if possiblebe gotrecordedby a Judicial When the policeofflcer concemed with the of the case or the Medical Officer upon such person that such personis in the 1 l dangerof dyingbefore the case 1Sputin Court he may be applyto the 0 0 Chief Judicial Magistrate and in his absenceto the senior most Judicial I present at the for recordingthe dying C5 I declaration That Rule came up for consideration 111Sita Devis case Z Supral It was observedas under 2 U We fail to understandwhyno attempt madeto get the was C I statement of the deceasedKrishna Devi recordedin terms of L2 the aforesaid rule when considerabletime was available Z betweentheburning incidentand thedateof deat 93 Cll In that case thedeceasedwas admittedin thehospital at about 7 t Z l l 15 an and the police offlcer reached the hospitaland made Qm to the doctor for him at about 200 pm Before G 5 attempts were madeby thepoliceto record the statement ofthe deceased the Executive on duty had alreadyrecorded his dying declaration lt was lIl the light of those facts that the above said observations were made It was held by Honble the SupremeCourt in Kulwant Singhscase supral that it is not essentialthat a dyingdeclaration RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 224 Crle AppealNoe7024OBof2002 2210 1 shouldbe madeonlybeforea Section32 ofthe EvidenceAct 1872 nowherestates that the dyingdeclarationmustbe recordedin the ofthe or lIl otherwords any statement which has not been recorded before the cannot be treated to be a dying declaration That of law was reiteratedin DayalSinghscase supralbythe ApexCourt Therefore it cannot be laid down as a rule of law that only the dyingdeclarationmade before the or the r Judicial is admissiblein evidence The above said rule does 0 0 not laydown provision of law and is onlydirectory in nature I It upon the facts andcircumstancesof each case as to what is the 0 I effect ofthat rule Z It is now well settledthat even a dyingdeclarationrecordedby apoliceofflcial is admissiblein evidence In VidhyaDevis case lpral r thestatement of the deceasedwas recordedby a policeofficer while in fit t0 stateof mind and the same was signedby the deceased It was held that Z the made to such a statement was not sustainable In Dayal ClO Singhscase supral the statementof the deceasedrecordedby a Head W2 Z Constable was not discardedmerelyon the groundthat the same was Il 1 recordedby such a policeofcial In State of MadhyaPradesh VSe W 3 Vishweshsar Kol 2011 21RCR11 256 the trial court observedthat dyingdeclarationto be more reliable and plausibleoughtto be recorded by a It was held by the Honble ApexCourt that if the Clrcumstances did not make that possibleand a dyingdeclarationwas recordedby a policeofflcer and was found to be credible therewasno law or practicethat it could not be relied upon Therefore the dying RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 225 Crl AppealNo 702DB of 2002 2211 1 declaration Ex PI beingrelied upon by the cannot be discarded merelyon the groundthat the same was recorded by the Offlcer and no attempt was madeto get the statementof the deceasedrecordedfrom some or Judicial However the reliabilityand credibility ofthe same is to be assessedbythis Court It was statedby SurjitSinghASI PWO that on 871999 on the receiptof the medical ruqa Ex PA he went to the GGS Medical 1 Collegeand HospitalFaridkot and made applicationEx PM for 0 enquiringabout the fltnessof Reeta Rani to make her statement Dr 0 I Sudhir Sharma declared her fit to make her statement by making C5 I endorsementEx PMll He searchedfor SDM Executive and Z DTO for recording thedyingdeclarationof ReetaRani but theywere not found presentat Faridkot Therefore he recordedthe statement of Reeta Rani which was read over to her andsheputher after I the same to be correct which was attestedbyhim The doctorremained Z presentduringthe recordingof that statement and she ao remainedflt to makethatstatement 3 Z It is well established of law that beforereliance Qm Call be placedupon the statement of the deceasedas dyingdeclaration it r V 5 1 must be convincinglyprovedon the record that she was 111flt mental condition and conscious while making that statement It was held by Honble the SupremeCourt in KanchyKomurammas case supral as under The failureofthe to establishthatthedeceased before shemade thedyingdeclarationWas 111propermental RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 226 Crle AppealNo 702DB of2002 1222 l condition to make the dyingdeclarationdetracts from the of the dyingdeclarationand it would not be safeto relyupon lt That the dyingdeclarationhasbeen recordedby a Judicial by itself is not a proofof truthflllnessof the dyingdeclarationwhich 111order to eam hasstill to passthetest of scrutinyofthe court It was also held as underl 1 There are certain which must be observedby a 0 0 Magistrate when to record a dyingdeclaration The I Magistrate before thedyingdeclarationmust C5 I himself that the deceased1S ln a propermentalstateto make Z the statement He must record that satisfaction before the dyingdeclaration He must also obtain the r 4 opinionof the doctor if one 1S available about the fltnessof l0 the patientto make a statement and the must Z provethat opinionat thetrial in themanner known to law iD Admittedlyin thepresentcase thedoctor who opinedabout m3 Z the fitnessof the deceasedto makeher statement was not examined It Qm r was admittedby SurjitSinghASI PH O duringhis cross examination 1 31 that the doctor who was presentduringthe recording of the statement of the deceased refused to givecertificateregarding the fltnessthoughhe had askedhim to givesuch an opinionThe doctor had alreadydeclared the deceasedflt to makeher statementbymakingendorsementEx PMll That endorsementwas dulyprovedby the ASI and his statementto that effect was never duringhis cross examination The non RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 227 7 Crle AppealNo 702DB of 2002 13 0 1 challenge bythe accusedamounts to ofthat partofthe statement to be correct In Kanchi Komurammas case supral no witness was examinedto provethe certificateofthe doctor but in thepresentcase that certificatewas dulyprovedby this ASI and there 1S no to the same When he exhibitedthat certiflcate the same was never to by the accused It is pertinent to note that ASI speciflcallystatedthat the of thestatementof the deceasedsheremainedft 1 C to make her statement and that the contents of that statement were read 0 overto her She admittedthoseto be correct and her 0 I Even that partof his statement was not duringthe C3 cross examlnatlOlle This statement made by the ASI flrmlyestablishes that the deceasedwas ln a flt state of mind to make her statement and Z 2 therecording of thatstatement was in fit mentalcondition In C 41 thesecircumstancesthe of the certificateof the doctoror I t his refusal to givesuch certiflcate ln no way detractsthe and Z credibility ofthe statement ofthe deceased Even from therecordsofthe Co hospital it cannot be concludedthat shewasnot in a flt mental m Z to makethatstatement tl The proved on record that the visceraof the dead 04 2 bodyof the deceasedwas sent to the Chemical Examiner who reported thatAluminium was detectedtherein After thereceiptof that 1 reportEx PH lt was opinedby Dr AlAggarwal PH who conductedpost mortem on the dead bodyof the deceasedthat lIl his opinionthe cause of deathwas aluminum poison It is in the statement of the deceased Ex PI that when her husbandcameto the RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 228 71 Crle AppealNo 702DB of2002 14 I7 house sheaskedhim to bringdrinking water for her and aftershetook the water So offered by the accused she headache and started vomitingand thereafter came to know that she had been administered in that water In Jaipalscase lpral so cited bythe leamed defencecounsel the Honble Supreme Court took into considerationthe t toxicologyregardingAluminium as explainedin Modis Medical and ToxicologyThe relevantportionthereof 1S 1 as under 0 Aluminium is available in the form of C white tablets When thesetabletsare takenout of the sealed C5 l container they come ln contact with mOlSture Z and the chemicalreactiontakesplace gas PH3 which is the actlve ingredient of ALP This gas 1S 0 highlytoxic and kills all insectsandthuspreserves I r the stored grains When these tablets are swallowed the Z chemical reaction is accelerated by the presence of CQ acid lIl the stomach and within minutes 7 Z gas and spreads lnto the whole body Qm The gas is highlytoxic and almost every organ but J 1 maximal 1S caused to heart and lungs Sudden cardiovascular collapseis the halImark of acute polsonlng Patientscome with fast thready or arterialpulses unrecordable oi Iow blood pressure and icyecoldskin Somehow these patientsremain conscious till the end and 4 continue to pass unne despiteunrecordableblood pressure RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 229 CrleAppealNoe702DB of2002 2215 S Vomitingis a featureassociatedwith epigastric bumingsensatlOOe The patients will be smelling likelfrom their breathand vomitus Manyof them will die within a few hours Those who survive for some time will show elevatedjugularvenous may developtender and still later adult distress 1 renal shutdown and 111a very few cases tOX1Chepatic jaundiceFurther ALP on account of its very 0 pungent smell which can drive out all inmatesfrom the house 0 I if left open9 can not betaken 0 I In that case the death of the deceasedhas taken place on Z account of aluminium celphos9In view of the nature of that 14 poison and on the basis of evidence producedby the r e it was held by Honble the Supreme Coun that it cannotbe I 3 concludedpositivelythat aluminium was administered to the Z deceased If onlythe tablet givenby the accused to the deceasedwas D celphosit 1S not likely that the deceased would have consumed lt 7 Z inasmuch as the pungentsmell of the celphoswould have alerted the deceasedand certainlyshewould not haveconsumedthat tablet 1 W 1 In thepresent case it is not the case that it was the tablet of celphositself which was so givento the deceased It was the poisonmixed in the water which was givento the deceasedby the accused atler sheaskedfor water After drinkingthat water the deceased survived fortwo daysand that was possibleonlyif the quantity of the pOlSOll ln the water was small That mightnot havegivensuch a smell RADHIKA 2014.12.10 14: 14 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 230 Crle AppealNo 702DB of 2002 1622 so as to cautlOIlthe deceasedto entertaina doubt that hadbeen mixed in the water The argumentSO raised by the learned defence counselfor the accused hasnot appealed us The has also provedoral dyingdeclarationmade bythedeceasedbefore hermotherKaushlaya Rani PW7 Shestatedthat shehad gone to her daughter at about 1000 am and at that time she was lyingon the bed in condition She told that her husbandhas 1 given mixed with the water and on takingthe sameshe started 0 vomitingand that she had not been got medicallyexamined by her 0 I husband It was only thereafter that she took her to Dr Pirthipal 0 Memorial Hospital Z There is no rule of law that oral dyingdeclaration is not 2 admissible 111evidence It was held by Honble the Supreme Court in Darshna Devis case supralthat the conviction Call be based on oral I t dyingdeclaration The only of law is that the exact words of Z that oral dyingdeclarationmust be provedbythewitnesses CO In the presentcase Rani PW7 has in fact used 7 Z the actual words used by the deceased That oral dyingdeclaration is 11 admissiblein evidence and the