State Of Punjab vs Raj Kumar & Ors

2. Background facts as projected by prosecution in a nutshell are as follows:

Tehsildar Lakhbir Slngh Kahlon (PW.6) was accordingly deputed to do the needful. He too went to the hospital and after getting the opinion of Dr. Kulwar Singh (PW.4) that Sunita was fit to make a statement recorded the same (Exh. PL) at 6.00 PM on March 13, 1996. Sunita died on March 14, 1996. On the completion of the investigation, the accused were charged for offence punishable under Section 302/34 IPC and as they pleaded not guilty, were brought to trial.

Prosecution examined witnesses to establish the accusations. Primarily reference was made to the evidence of PWs 5 and 7 (Ashok Kumar and Chaman Lal respectively) to whom she had made oral dying declarations about 10.30 a.m. 3 on March 13, 1996. Lakhbir Singh (PW-6) had recorded the dying declaration. Similarly, Harjinder Singh, ASI (PW-8) the Investigating Officer had recorded the dying declaration (Exh.PM/2) and Dr. Sanjiv Kumar (PW-9) had opined that the deceased was in a fit condition to make statement which had been recorded by PWs 6 and 8. Appellant No.1 pleaded alibi. He further stated that he had taken the deceased to the hospital in injured condition. Two witnesses were examined to prove the aforesaid stands. The trial Court observed that the dying declaration (Exh.PL and PM/2) made to ASI Harjinder Singh and Lakhbir Singh clearly proved the prosecution case beyond doubt. It also observed that it appears that last three lines of the statement Exh.PM/2 excluded Raj Kumar and Piara Singh from any wrong doing. It was clear from the subsequent statement (Ex.PL) that she had reiterated the facts already mentioned in the earlier statement (Exh.PM/2) and again there was manipulation in the statement Exh.PM/2). The trial Court relied on oral dying declaration made to PWs 5 and 7 at 10.30 a.m. on 13.5.1996. Referring to the evidence of the doctor and PW-8 it was observed that the deceased was in 4 a conscious and fit state of mind to make the dying declaration. Referring to the fact that the FIR had been lodged promptly, conviction was recorded.

4. This is a case where the basis of conviction of the accused by the trial Court was the dying declarations. The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that 6 the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

7. Considering the principles set out above and the factual scenario, it is crystal clear that the prosecution has been able to establish the accusations so far as respondent No.2 is concerned. But the question is whether it is a case under Section 302 IPC. According to us the factual scenario shows that a case at hand would be covered by Section 304 Part II IPC. Custodial sentence of 6 years would meet the ends of justice. The sentence has been imposed considering the age of the respondent No.2. He shall surrender to custody forthwith to serve the remainder of sentence. Appeal stands dismissed vis-`-vis other respondents.

8. The appeal is allowed to the aforesaid extent. 11 ...............................J. (Dr. ARIJIT PASAYAT) ...............................J. (G.S. SINGHVI) New Delhi, August 11, 2008 12