Criminal Appeal No. 798-SB of 1996 1 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 798-SB of 1996 Date of Decision : 22.05.2009 Ramesh son of Kishan Chand aged 30 years r/o Kansala P.S. Sanpla at present tenant of Ram Chander, Milk Vendor Saini Sonepat. ...Appellant Versus The State of Haryana ....Respondent Criminal Appeal No. 818-SB of 1996 Date of Decision : 22.05.2009 Shanti wife of Girdhari Lal, aged 65 years, r/o H. No. 10/54, Dhobi Katra Purani Sabzi Mandi, Sonepat. ...Appellant Versus State of Haryana ....Respondent Criminal Appeal No. 828-SB of 1996 Date of Decision : 22.05.2009 Ram Kumar son of Baleshwar Dayal, r/o H. No. 5/911, Dhobi Katra, Purani Sabzi Mandi, Sonepat. ...Appellant Versus State of Haryana ....Respondent Criminal Appeal No. 798-SB of 1996 2 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Anhul Singh, Advocate, for the appellant, in Criminal Appeal No. 798-SB of 1996. Mr. G.K. Khanna, Advocate, for the appellant, in Criminal Appeal No. 818-SB of 1996. Mr. Roopak Bansal, Advocate, for the appellant, in Criminal Appeal No. 828-SB of 1996. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent – State. * * * * SHAM SUNDER, J. This judgement shall dispose of Criminal Appeal No. 798- SB of 1996, filed by Ramesh, Criminal Appeal No. 818-SB of 1996, filed by Shanti, and Criminal Appeal No. 828-SB of 1996, filed by Ram Kumar, appellants, against the judgement of conviction, and the order of sentence dated 26.11.96, rendered by the Court of Additional Sessions Judge, Sonepat, vide which, it convicted the accused (now appellants), for the offence, punishable under Section 304 part II of the Indian Penal Code, and sentenced them, to undergo rigorous imprisonment, for a period of seven years each, whereas, it acquitted Vina, accused, for the said offence. 2. The facts, in brief, are that, on 28.02.95, Rakesh, deceased, Criminal Appeal No. 798-SB of 1996 3 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 was rushed to General Hospital Sonepat, with 85 per cent burn injuries, where he was medico-legally examined at 10.15 p.m. by Dr. R. N. Tehlan, prosecution witness, who found superficial to deep burns all over his body except the left leg and foot, right foot, lower leg and a portion of the back. The burns injuries were found to have been caused by fire within the probable duration of six hours vide medico-legal report PA. After medico-legal examination of Rakesh deceased, Dr. R.N. Tehlan sent intimation vide PB, to Incharge Police Post General Hospital, Sonepat about his arrival, in the hospital, with burn injuries. 3. On receipt of a telephonic message at about 10.30 p.m. from the Police Post General Hospital, Sonepat, Assistant Sub Inspector Rameshwar Dutt, prosecution witness, went there alongwith Constables Dharambir and Sher Singh. He moved an application PC before Dr. R.N. Tehlan, seeking his opinion, as to whether, Rakesh was fit to make statement or not. The said doctor declared him fit to make statement at 11.00 p.m. vide PC/1. 4. Thereafter, Assistant Sub Inspector Rameshwar Dutt recorded statement of Rakesh deceased PE, wherein, he stated that he was working as a hawker in Sector-14, Sonepat, for selling vegetables and was married to accused Vina, from whom, he had a son and a daughter. He further stated that on the last Sunday Vina, accused, went to her mother's house without informing him, and she was doing so earlier also. He further stated that, on that Sunday, he had brought his son Yogesh, from the house of his mother-in-law Shanti, accused, but Criminal Appeal No. 798-SB of 1996 4 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 Vina, did not accompany him. She had left his infant daughter at his house on 27.02.95. He further stated that on the date of incident i.e. on 28.02.95 at about 8.00 p.m. Vina and Shanti, accused, came to his house alongwith Ramesh and Ram Kumar, accused, and they asked him to accompany them. He further stated that when he refused to go with them, Shanti, Ram Kumar and Ramesh, accused, grappled with him and then Ram Kumar and Ramesh, accused, caught his hands, whereas Shanti accused, poured kerosene, from a bottle, which was lying at his house, on his clothes. When he tried to run, Ramesh accused, gave a burning match stick to Shanti, accused, who threw the same upon his clothes which caught fire. He further stated that when he rushed outside, the people extinguished the fire, whereas, Shanti, Ram Kumar and Ramesh, accused, decamped from the spot. He further stated that he did not know as to who had brought him to the hospital. He thumb marked the said statement after admitting the contents of the same to be correct. 5. The aforesaid statement PE, made by the deceased, was forwarded by Assistant Sub Inspector Rameshwar Dutt for the registration of a case under Section 307 read with Section 34 of the Indian Penal Code, through constable Sher Singh, on 28.2.1995 itself at 11.55 p.m. on the basis whereof, formal first information report bearing No.43 dated 01.03.95 was recorded at Police Station Sadar Sonepat, under Section 307 read with Section 34 of the Indian Penal Code, at 12.30 a.m. by Sub Inspector Man Singh, copy whereof is PE/2. Criminal Appeal No. 798-SB of 1996 5 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 6. Assistant Sub Inspector Rameshwar Dutt, went to the place of occurrence on 01.03.95 and prepared the rough site plan PF. 7. Subsequently, the condition of Rakesh deceased having turned precarious, he was shifted to Maulana Azad Medical College, New Delhi where he died on 03.03.95 at 9.30 p.m. Inquest proceedings were conducted by Ram Surat Singh, Sub Inspector, Delhi Police, prosecution witness, on 04.03.95, vide PH. Then the dead-body was forwarded for the post-mortem examination. 8. The post-mortem examination, on the dead body of Rakesh Kumar, was conducted by Dr. Yoginder Singh Bansal, prosecution witness, in Maulana Azad Medical College and Hospital, New Delhi on 04.03.95 at 11.45 a.m. The doctor found that the probable time that might have expired between the death and examination of the deceased was around 4 hours and it was a case of burn injuries. Infected dermo epidermo burn injuries were found present over whole of the body except the forehead, pubic region, front of left lower limb, below the level of left knee, right foot and back of left leg. Extent of the aforesaid injuries was around 85 to 90 per cent. The burn injuries were found to be ante-mortem, in nature, and having been received within the probable duration of three days. According to Dr. Yoginder Singh Bansal, the death, in this case, was due to septicemia consequent upon infected burns. PG is the report of the post-mortem examination of the deceased. 9. During the course of inquest proceedings, in the hospital at Criminal Appeal No. 798-SB of 1996 6 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 Delhi, Nand Lal and Smt. Sheela Wanti, prosecution witnesses, came out with eye witness account of the incident, wherein, they alleged that they were also present in the house when the accused had set their son Rakesh on fire. After the death of Rakesh, deceased, the case was converted into one under Section 302 of the Indian Penal Code. The accused were arrested. After the completion of investigation, they were challaned. 10. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 302 read with Section 34 of the Indian Penal Code, was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. 11. The prosecution, in support of its case examined Dr. R.N. Tehlan (PW1), Nand Lal (PW2), Sheelawanti (PW3), Constable Inderpal (PW4), Assistant Sub Inspector Rameshwar Dutt (PW5), Dr. Yoginder Singh (PW6), and Sub Inspector Ram Surat Singh (PW7). Thereafter, the Public Prosecutor for the State closed the prosecution evidence. 12. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Shanti, accused, in her Criminal Appeal No. 798-SB of 1996 7 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 statement, under Section 313 of the Code of Criminal Procedure, stated that on 28.02.95 her co-accused Vina was taken from her house by Krishan Lal who is the brother in-law of the deceased and one more gentleman. She further stated that she then took her co-accused Ram Kumar from her neighbourhood and went to the house of deceased in Sector 14, Sonepat where nobody was found available. She further stated that the deceased had set himself ablaze and had been taken to the hospital. It was further stated by her that thereafter, they reached the hospital, where several persons including her co-accused Vina were found present. She further stated that Vina told her, at that time, that the deceased had set himself ablaze. 13. Ram Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, took up the same plea, as was taken up by Shanti, accused, in her statement, under Section 313 of the Code of Criminal Procedure. 14. Ramesh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that the deceased owed him some amount, on account of fruit and vegetables, and he had gone to his house to demand the same. He further stated that, at that time, there was an altercation between the deceased and his brother-in-law Kishan Lal. He further stated that there was a dispute over the retention of the house between them. He further stated that the deceased was refusing to vacate the house and Kishan Lal was asking him to vacate the same. He further stated that Kishan Lal then gave a slap to the deceased Criminal Appeal No. 798-SB of 1996 8 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 whereupon he (deceased) set himself ablaze. He further stated that thereafter they extinguished the fire and took the deceased to Satya Nursing Home, from where they took him to General Hospital, Sonepat. He further stated that Vina had accompanied the deceased at that time. 15. Veena, accused (since acquitted), in her statement, under Section 313 of the Code of Criminal Procedure, stated that on the date of incident Kishan Lal, brother-in-law of her husband, had come to their house and he had an altercation with her husband as he was asking him to vacate the house. During altercation Kishan Lal gave a slap to her husband. Consequent upon the same he set himself ablaze. She further stated that she, Kishan Lal, and her co-accused Ramesh, who were living in their neighbourhood, extinguished the fire and rushed the deceased to the hospital. It was further stated by her that the Police fabrciated the case against them. The accused did not lead any evidence in their defence. 16. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused (now appellants), but acquitted Vina, accused, as stated above. 17. Feeling aggrieved, the aforesaid appeals, were filed by the appellants. 18. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. Criminal Appeal No. 798-SB of 1996 9 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 19. The Counsel for the appellants, submitted that the dying declaration, in the case, was not recorded in accordance with the High Court Rules and Orders. It was further submitted that the deceased when he was injured could not be said to be in a fit state of mind to make any dying declaration. It was further submitted that it was not known, as to why Assistant Sub Inspector Rameshwar Dutt, recorded the alleged dying declaration of the deceased, when the services of a Judicial Magistrate 1st Class, could be availed of, on account of his presence in the District Courts, as the deceased was admitted in Civil Hospital, Sonepat. It was further submitted that even no doctor remained present throughout, when the alleged dying declaration of the deceased was recorded. It was further submitted that the dying declaration allegedly recorded by the Assistant Sub-Inspector, could not be relied upon, for the purpose of recording conviction and awarding sentence. 20. On the other hand, the Counsel for the respondent submitted that since the condition of the injured was precarious, the Assistant Sub Inspector, recorded his dying declaration, after obtaining the opinion of the doctor that he was fit to make statement. He further submitted that there is no provision of law, that a dying declaration recorded by a Police Official, cannot be relied upon, to record conviction and award sentence. It was further submitted that the dying declaration which is found to be voluntary, having been made in sound state of mind by the deceased, even if, recorded by a Police Official can Criminal Appeal No. 798-SB of 1996 10 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 solely form the basis of recording conviction and no corroboration to the same is required. It was further submitted that the trial Court, was right, in recording conviction, and awarding sentence to the accused (now appellants). 21. Coming to the submission of the Counsel for the appellants, that the dying declaration PE recorded by the Assistant Sub Inspector, could not be acted upon, it may be stated here, that there is no provision of law, that the dying declaration, recorded by a Police Official, even if, found to be voluntary, and truthful, cannot be acted upon for the purpose of bringing home the guilt to the accused. In State of U.P. Vs. Ameer Ali 1996(2) RCC 688 (SC), it was held by the Apex Court, that if a dying declaration is found truthful, the same is sufficient to base a conviction, without any further corroboration. In that case, the dying declaration was recorded by the Investigating Officer. Since the dying declaration was found to be truthful and voluntary, it was relied upon upto the Apex Court, and conviction of the accused, was maintained. In Betal Singh Vs. State of M.P. 1996(2) RCR (Crl.) 403, the dying declaration of the deceased had been recorded by the Investigating Officer. The same was found to be truthful and voluntary. In those circumstances, reliance was placed thereon upto the Apex Court and conviction of the accused was recorded. So the mere fact that the dying declaration PE, was recorded by Assistant Sub Inspector Rameshwar Dutt, PW5, in itself, was not sufficient to discard the same. The submission of the Counsel for the Criminal Appeal No. 798-SB of 1996 11 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 appellants, in this regard, being without merit, must fail, and the same stands rejected. 22. The Counsel for the appellants, however, placed reliance on Rangaiah Vs. State of Karnataka, 2009(1), RCR (Criminal) 923, in support of their contention that the dying declaration recorded by Assistant Sub Inspector Rameshwar Dutt, could not be relied upon, to record conviction. The facts of Rangaiah's case (supra), are clearly distinguishable, from the facts of the instant case. In that case, the dying declaration was recorded by the Investigating Officer. The doctor who gave the fitness certificate that the injured who, later on, died was fit to make statement, was not examined. In those circumstances, it was held that the dying declaration recorded by the Police Official could not be relied upon. In the instant case, Dr. R.N. Tehlan, who gave the opinion PC/1, on the application PC, moved by Rameshwar Dutt, Assistant Sub Inspector, that Rakesh son of Nand Lal, was fit to make statement, was examined as PW1. The facts of the aforesaid case, being distinguishable, from the facts of the instant case, no help, can be drawn by the Counsel for the appellants, therefrom. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 23. Now coming to the contention, as to why the services of a Judicial Magistrate 1st Class, were not requisitioned, it may be stated here, that when the injured (now deceased) was got admitted in the hospital, he was having 80 per cent burns. On receipt of the chit, from Criminal Appeal No. 798-SB of 1996 12 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 the hospital, Rameshwar Dutt, Assistant Sub Inspector, reached there and after obtaining the opinion of the doctor PC/1, on the application PC, that the injured was fit to make statement, he considered it to be his bounden duty to record the statement of Rakesh, as his condition was very precarious. It was, under these circumstances, that the services of the Judicial Magistrate 1st Class, could not be requisitioned on 28.02.95. It is evident that P1 application was moved on 01.03.95, when Rakesh was admitted in a hospital at Delhi for recording his statement. Vide endorsement P1/1, the injured was declared unfit to make statement. Thereafter, on 03.03.95, the opinion of the doctor, in the hospital at Delhi, was sought, as to whether, the injured was fit to make statement. The doctor declared him unfit vide P1/2 to make statement. After the statement of the injured was recorded by Rameshwar Dutt, on 28.02.95, his condition deteriorated and he became unfit to make statement, as per the aforesaid certificates of the doctors. No doubt, the injured died on 03.03.95, but since he remained unfit, after recording his dying declaration by Rameshwar Dutt, Assistant Sub Inspector, on 28.02.95, his second dying declaration could not be got recorded from a Judicial Magistrate 1st Class. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 24. The dying declaration exhibit PE, recorded by Rameshwar Dutt, Assistant Sub Inspector, PW5, is fully reliable. Rameshwar Dutt, Assistant Sub Inspector, had no motive, whatsoever, to falsely Criminal Appeal No. 798-SB of 1996 13 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 implicate the accused. By the time, he recorded the dying declaration, even the names of the accused were not known to the family members of the deceased, as Nand Lal, and Sheela Wanti, parents of the deceased came on the scene, for the first time, on 04.03.95. The dying declaration PE, of the deceased, was wholly untutored. Truth sits on the lips of a dying man. A person on the verge of death is most unlikely to make an untrue statement, unless prompted or tutored by his friends. No doubt, Nand Lal, PW2, in his cross-examination stated that he talked to the deceased in the hospital. The mere fact that Nand Lal, talked to the deceased in the hospital, in itself, was not sufficient that he tutored him to make the dying declaration, in the manner, it was made by him. The surety of immediate death, is the best guarantee of truthfulness of the statement made by a dying person, regarding the circumstances, leading to his death. In PE Rakesh, in clear-cut terms, stated that at about 8.00 PM, on 28.02.95, his mother-in-law Shanti, Vina, his wife, Ramesh, who was residing near the house of his mother-in-law and Ram Kumar, whose house was situated on the back side of the house of his mother-in-law, came to his house. He further stated, in this dying declaration, that they told him that he should accompany them. He further stated that he refused to accompany them. It was further stated by him, that thereafter, Shanti, his wife Vina, Ram Kumar and Ramesh grappled with him. It was further stated by him, in the dying declaration, that Ram Kumar, and Ramesh, then held his hands, whereas Shanti, his mother-in-law poured the kerosene oil from Criminal Appeal No. 798-SB of 1996 14 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 the bottle, lying in his house. It was further stated by him, that when he tried to run away, Ramesh, after lighting the matchstick gave it to Shanti, his mother-in-law, who threw the same on him, as a result whereof, his clothes caught fire. In that condition, he ran out of the house, and the people who were passing by, extinguished the flames of fire. It was further stated by him, that his mother-in-law, Ram Kumar, and Ramesh, then fled from the spot. He further stated that he did not know, as to who took him, to the hospital. As stated above, the dying declaration was recorded by Rameshwar Dutt, Assistant Sub Inspector, after obtaining the certificate of fitness, from the doctor. There was no reason, on the part of Rakesh, to falsely implicate the accused, in this case. He had no ill-will, grudge or enmity against them. Had they not participated, in setting him ablaze, as per the roles assigned to them, by him (Rakesh), he would not have named them. In Khushal Rao Vs. State of Bombay AIR 1958, (SC), 22(1), it was held by the Apex Court, that Section 32(1) of the Evidence Act, attaches a special sanctity to a dying declaration, and unless the same is shown to be unreliable, it could not be disbelieved. It was further held that although a dying declaration has to be closely scrutinized, but once the Court comes to the conclusion that it is true, no question of corroboration arises. Similar principle of law, was laid down, in Harbans Singh and another Vs. The State of Punjab, AIR 1962 (SC), 439(1), State of U.P. Vs. Ram Sagar Yadav, AIR 1985 (SC) 416, and State of Rajasthan Vs. Kishore, 1996, Criminal Law Journal, 203 (SC). Since Criminal Appeal No. 798-SB of 1996 15 Criminal Appeal No. 818-SB of 1996 Criminal Appeal No. 828-SB of 1996 the dying declaration PE was proved to be truthful and voluntary and not tutored, and was duly corroborated by the medical evidence, as such, the same was sufficient to record conviction and award sentence. The trial Court, was right, in relying upon the dying declaration PE, to come to the conclusion, that the accused committed the offence, punishable under Section 304 part II of the Indian Penal Code. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 25. Coming to the presence of Nand Lal, PW2, and Sheela Wanti, PW3, parents of the deceased, at the time of occurrence, it may be stated here, that they were not present, at that time, but were later on, introduced as witnesses, to provide genuineness to the case of the prosecution. As is evident from record, the parents of the deceased, for the first time, came with their version, after four days of the occurrence. No doubt, Nand Lal, PW2, and Sheela Wanti, PW3, stated that the incident of setting the deceased ablaze by the accused had taken place in their presence. However, their evidence, does not inspire confidence. They stated that after the accused had run away from the scene, they rushed Rakesh to General Hospital, Sonepat. However, the medico-legal report exhibit PA, falsified their evidence, in this regard. Their names did not appear in the medico-legal report, as the persons, who brought Rakesh, to the hospital. On the other hand, Ramesh