IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 413-DB of 1999 Date of Decision: 28th May, 2008 Om Parkash … Appellant Versus State of Haryana. … Respondent CORAM : HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, HON’BLE MR. JUSTICE S.D. ANAND. Present : Ms. Kamalpreet Kaur, Advocate, as Amicus Curiae, for the appellant. Mr. S.S. Pattar, Sr. Deputy Advocate General, Haryana, for the respondent. S.D. Anand, J. The appellant was convicted by the learned Trial Judge on a charge of committing the murder of his own wife by setting her afire. The entire prosecution presentation against the appellant – accused revolves around dying declaration (Ex.PD) which Mst. Nirmala Devi made to PW4 – Sh. Roop Singh, Sub Divisional Magistrate, Rewari, on 24.07.1998. PW14 – ASI Siri Krishan (then posted at Police Station, City Rewari), who had gone over to the General Hospital, Rewari, on receipt of a ruqqa at about 10.30 P.M. about the hospitalization of Mst. Nirmala Devi over there. On reaching there, he filed an application (Ex.PG) Crl. Appeal No. 413-DB of 1999 whereupon the Medical Officer attending upon the patient opined (vide Ex.PG/1) that Mst. Nirmala Devi was fit to make a statement. He, therefore, made a telephonic request to PW4 – Sh. Roop Singh to come over for recording the dying declaration of Mst. Nirmala Devi who had sustained burns. PW5 – Dr. M.K. Garg, Medical Officer, Civil Hospital, Rewari, owned up certification Ex.PG/1 declaring Mst. Nirmala Devi to be fit to make a statement. He also testified that dying declaration Ex.PD of Mst. Nirmala Devi was recorded by PW4 – Roop Singh in his presence and her thumb impression was obtained thereupon. The other PWs gave testimony which pertained to the different facets of the process of investigation. The learned Trial Judge placed implicit reliance upon dying declaration Ex.PD and recorded the impugned finding of conviction. The plea of innocence, put-forth by the appellant, was negatived. The learned counsel, appearing on behalf of the appellant as Amicus Curiae, argues that the Trial Court was not justified in placing implicit reliance upon the dying declaration which had not been corroborated by any other substantive evidence. The plea raised in the context is that the deceased having sustained 70% burns, could just not have been in a position to make a statement before the Sub Divisional Magistrate. The entire prosecution presentation, the argument proceeds, was a fabrication and a make-believe affair. We find the view advocated on behalf of the appellant to 2 Crl. Appeal No. 413-DB of 1999 be plainly without merit. As per the law of the land, statutory and also interpreted, a dying declaration is entitled to a fairly high evidentiary value because a person in the immediate danger of going to the Lord would not state an untrue fact. Concededly, there could be cases where the Court may find the dying declaration to be unreliable. The conceivable eventualities in that behalf are not required to be enumerated over here. The present is, in any case, not a case where we would like to discard the dying declaration. As would be apparent from the record, PW4 – Sh. Roop Singh testified on oath that he made general queries from Mst. Nimala Devi (about her fitness to make a statement) and proceeded to record her statement Ex.PD only thereafter. It is also in his testimony that the Medical Officer attending upon her (and who had given the opinion that she was fit to make a statement) remained present throughout. The role attributed was owned by PW5 – Dr.M.K.Garg. Both these PWs are responsible public servants and they performed the attributed role in the discharge of their official duty. There is not even a feeble suggestion that there was any reason on account whereof they may have been privy to the fabrication of that dying declaration. In fact, both of them were subjected to grueling cross-examination. The only suggestion put to PW4 – Sh. Roop Singh was that he “obliged the police by signing Ex.PD at your residence”. As against it, the suggestion put to Dr. M.K. Garg (PW5) was that he “obliged the police for your opinion Ex.PG/1 and that Nirmala was not fit to make a statement”. They denied the suggestions in the relevant behalf. The file 3 Crl. Appeal No. 413-DB of 1999 indicates that the suggestions aforementioned were not pursued any further on behalf of the appellant. We find no reasons to disbelieve the testimony of PW4 – Sh. Roop Singh and PW5 – Dr. M.K. Garg. The credit of both of whom could not be shaken or impeached in the course of the lengthy cross-examination. As would be apparent from a perusal of dying declaration Ex.PD, Mst. Nirmala Devi made a categorical accusation that she had been belaboured and, then, set afire by the appellant as he suspected that she had illicit relations with former’s elder brother Ashok. Ex.PD is not open to any other interpretation except that Mst. Nirmala Devi had squarely blamed him for the impugned occurrence. For facility of reference, the translated version of Ex.PD is reproduced as under:- “Stated that I am a resident of Chhota Talab area which is near Police Station Sadar. Today at 8.00 A.M. myself and my husband were alone. My brother-in-law has gone to the market. My father-in-law had gone to tea shop. My husband said to me that I was of bad character and that I had illicit relations with Jaith (elder brother of husband) Ashok. I denied and said that it was false. On this he gave slaps and fist blows to me and sprinkled/poured kerosene oil upon and set it on fire. He put me on fire and at that time he had closed the gates of both sides. My husband Om Parkash put me on fire, opened doors and ran away. I made noise`Bachao Bachao’. Paunit and my Nanad (sister of 4 Crl. Appeal No. 413-DB of 1999 husband) Raj came, poured water upon me and extinguished fire. They both took me/brought me to hospital in ricksha. I have been burnt by me husband Om Parkash and no other person of family/home is having any involvement/fault. My husband did it with an intention to kill me.” The plea of alibi raised by the appellant is not supported by any corroborating evidence. In the course of the statement under Section 313 Cr.P.C., he raised a plea that he was away to Delhi on the relevant date to present some gifts to his sister on the Teej festival. As per the plea, he returned from Delhi on the morning of 25.07.1998 when he was informed by his neighbour Pawan Kumar, his sister Raj and other family members that Mst. Nirmala Devi had died as her clothes caught accidental fire when she was cooking food. For the reasons best known to him, the appellant did not produce his neighbour Pawan Kumar, his sister Raj and any other member of the family to corroborate his plea in the relevant behalf. Those persons were the best circumstanced to cement his plea of alibi. For buttressing it, he too could have entered the witness box, in his own discretion, to indicate his whereabouts on the relevant date and at the relevant point of time. The complete want of evidence in that behalf justifies the drawal of an inference that the plea of alibi does not stand proved. We affirm the reliance placed by the learned Trial Judge upon the dying declaration to hold the appellant accountable for having murdered his wife Mst. Nirmala Devi by setting her afire. In 5 Crl. Appeal No. 413-DB of 1999 the course of dying declaration, Mst. Nirmala Devi made things very clear about the other residents of that house. She averred that her brother-in-law had gone to the market and her father-in-law had gone to tea shop. Her Nanad and her husband were available in the house and they, on hearing the alarm raised by her, came over and extinguished the fire by pouring water upon her. Thereafter, they took her to the hospital in ricksha. If Mst. Nirmala Devi had any venom against her in-laws, she could have attributed some incriminating role to other members of her in-law’s family as well. However, she exonerated all other except her husband i.e. the appellant before this Court. Apart therefrom, she was equally categorical in indicating that her husband shut both the doors of the room where she was set afire. In the light of the foregoing discussion, it is clear that the finding recorded by the learned Trial Judge in the context of fixture of accountability of the appellant in having murdered his wife cannot be faulted on any valid score. We affirm the correctness of the line of reasoning adopted by the learned Trial Court. The appeal shall stand dismissed. ( S.D. Anand ) Judge May 28, 2008 ( Adarsh Kumar Goel ) vkd Judge Note: Whether to be referred to Reporter : Yes/No 6