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Judgment
Jasbir Singh, J.—Appellants were tried, convicted and sentenced u/s 302 read with Section 34 IPC for committing murder of Shugan
Chand, by putting him on fire. Appellant No. 1 is the son, Appellant No. 3 is the wife and Appellant No. 4 is the daughter-in-law of the deceased.
Appellant No. 2 is brother-in-law of Appellant No. 1.
Primary evidence against the Appellants is in the shape of dying declaration (Ex. PF), allegedly made by the deceased to ASI Faquir Chand
(PW-10), the investigating officer. The alleged witnesses to the occurrence had turned hostile at the time of trial.
Briefly, it was case of the prosecution that on 22.8.1995, between 11 and 12 p.m., the deceased was put on fire by the Appellants. He raised
an alarm, which attracted his another son, namely, Suresh and his wife Shamo (PW-1). Rup Chand, brother of the deceased and his sons Om
Parkash and Mohinder, also came there. They saw the Appellants-accused running away from the spot. The deceased was brought to the hospital
by Rup Chand, where he was medico-legally examined by Dr. Ramesh Kumar (PW-11) at about 12.45 a.m. on 23.8.1995. Above said witness
also sent Ruqa/intimation (Ex. PN) to the police, on receipt of which, the investigating officer (PW-10) came to the hospital, moved an application
Ex. PM, requesting the doctor to give opinion as to whether the deceased was fit to make a statement or not. On getting positive opinion from the
doctor, the investigating officer proceeded to record statement of the deceased (Ex. PF). On conclusion thereof, it was attested by Dr. Ramesh
Kumar (PW-11). On the basis of statement made by the deceased (Ex. PF), formal FIR was recorded against the Appellants u/s 307/34 IPC. Sh.
Shugan Chand succumbed to his injuries at about 12.00 p.m. on 23.8.1995. Thereafter, the FIR was converted to u/s 302/34 IPC.
After recording of the FIR, investigation was conducted by Faquir Chand (PW-10), who inspected the spot, prepared a rough site plan (Ex.
PO) and took plastic container and one half burnt shirt from the spot in his custody. The inquest report was prepared by Inspector Kishan Chand.
Dr. J.P. Sethi, (PW-2) conducted the postmortem examination of the dead body of Shugan Chand.
On completion of investigation, final report, u/s 173 Code of Criminal Procedure was put in Court, for trial. The Appellants were charge
sheeted for commission of offence u/s 302/34 IPC. They pleaded not guilty and claimed trial.
To prove its case, the prosecution produced as many as 12 witnesses and also brought on record various documents. On conclusion of
prosecution''s evidence, statements of the Appellants were recorded u/s 313 Code of Criminal Procedure They denied all the allegations of
prosecution and showed innocence. However, they led no evidence in defence. The trial Court, on appraisal of evidence, held then guilty,
convicted and sentenced them vide judgment under challenge. Hence, this appeal.
In this case, the prosecution has failed to bring on record the eye-witness account of the alleged occurrence. One of the eye-witnesses had
turned hostile and others were left out, as having been won over by the Appellants. Perusal of the judgment, under challenge, reveals that the
Appellants were convicted primarily by relying upon alleged statement Ex. PF made by the deceased on 22.8.1995. Even when cross-examining
the witness, who had turned hostile, the prosecution has failed to yield anything in its favour.
In view of facts mentioned above, counsel for the Appellants have primarily raised their arguments against alleged statement Ex. PF, made by
the deceased, mode and manner of its recording by the investigating officer. It was further stated that the investigating officer has failed to adopt the
proper procedure when alleged statement of the deceased was recorded and also during investigating proceedings.
Sh. S.S. Dinarpur, Advocate, counsel for Appellant Nos. 1, 2 and 4, by making reference to the statement of PW-11, Dr. Ramesh Kumar,
contents of the inquest report and statement made by Dr. J.P. Sethi (PW-2), argued that when deceased was brought to the hospital, his condition
was such that he was not in a fit state of mind to make any statement. Upper portion of his body was completely burnt and doctors detected burns
on his body to the extent of 90%. He was put under sedatives and was not in a position to make any statement, as alleged by the prosecution.
Counsel further argued that the doctor has not made any endorsement that the deceased was conscious, in a fit state of mind to make the statement
and further that when the alleged statement was being recorded, doctor has no where stated that he remained present and the deceased remained
conscious and fit throughout. He further argued that as the dying declaration has not been recorded as per rules laid down by this Court, the same
was liable to be rejected. Shri Dinarpur also tried to persuade us that to know about condition of health of the deceased, the Court has powers to
look beyond the opinion given by a doctor, to arrive at a conclusion as to whether the deceased was fit to make the statement or not. He further
argued that in view of health condition of the deceased, who had extensive burns on his body, it was not possible for him to put thumb impression
on the alleged statement, as has been stated by the investigating officer. The prosecution has failed to give any explanation as to why despite
opportunity available, no attempt was made to get statement of the deceased recorded before a Magistrate. He further stated that the prosecution
has failed to bring on record any evidence with regard to motive, to commit the crime. By referring to the contents of FIR, wherein it is mentioned
that intimation, regarding alleged crime was received at 11.00 a.m. on 22.8.1995, Shri Dinarpur argued that the investigating officer had made an
attempt to ante time the FIR. He prayed that the appeal be allowed and judgment under challenge be set aside.
Mrs. Vandana Malhotra, Advocate appearing for Respondent No. 3 by making reference to the statement Ex. PF, argued that there was no
motive with Appellant No. 3 to commit the offence, who happens to be wife of the deceased. By relying upon those very arguments, as were
raised by Shri Dinarpur, she argued that so called dying declaration was surrounded by suspicious circumstances and the Court below has erred in
relying upon the same. She prayed that the appeal be accepted and the impugned judgment be set aside.
In reply, Shri P.S. Sullar, DAG Haryana, appearing for the Respondent has contradicted the arguments raised by counsel for the Appellants.
He further stated that there is no rule, which necessitate that the dying declaration be recorded by the Magistrate alone. By stating that even oral
dying declaration can be relied upon he supported the judgment passed by the trial Court. He further argued that in view of certificate (Ex. PM/2),
given by the doctor (PW-11), with regard to condition of health of the deceased, it cannot be said that the deceased was not fit to make the
statement, as argued by counsel for the Appellants. He further submitted that due to disinheritance of Appellant No. 1, from his property by the
deceased, there was motive with him to commit the crime. Others, in connivance with him, have facilitated the same. He prayed that the appeal
having no substance be dismissed.
In the present case, there exists no corroboration to the dying declaration (Ex. PF), made by the deceased. Alleged eye-witness had turned
hostile. It is true that if the dying declaration is trustworthy, conviction can be based upon the same without any further corroboration. In the case in
hand, author of the dying declaration is no more. Authenticity of his statement cannot be put to test by the process of cross-examination. In view of
above said facts, the Court is supposed to look into contents of the statement, mode and manner of its recording, health of the maker, in a very
minute manner.
Their Lordships of the Hon''ble Supreme Court in Smt. Laxmi Vs. Om Prakash and Others, , while dealing with importance of dying
declaration, during trial, has observed thus:
The law is well settled, dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if
found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding
conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and
appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of
evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration,
with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given
case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or
circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying
declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction.
Now, we will analyse the evidence on record keeping in view the parameters, as enunciated in the judgment, mentioned above.
As per case of the prosecution, after receipt of burn injuries, the deceased was admitted in the hospital, where PW-11 Dr. Ramesh Kumar
attended him at about 12.45 a.m. He sent the intimation, which attracted PW-10, the investigating officer to the hospital, who made an application
(Ex. PM) with a request that he be intimated as to whether the patient is fit to make a statement or not, whereupon Dr. Ramesh Kumar made the
following note on that application:
Patient is fit to give statement (Ex. PM-1)
Perusal of above said two documents, indicates that neither the investigating officer has mentioned any time in his application nor the same was
given by the doctor. The investigating officer thereafter, recorded statement of the deceased (Ex. PF), which reads thus:
It is stated that my elder son is in the habit of committing theft. Who has been disowned/dispossessed for the last 2/3 years. At about 11/12 p.m.
mid- night when I was sleeping, I was made to get up by Ramesh and his brother-in- law Sham Lal, who is resident of Talakaur. My mouth was
gagged (pressed), with his hand by Sham Lal, Sunita wife of Ramesh has sprinkled kerosene oil upon me and Ram Katori, mother of Ramesh, sent
me on fire. After setting me on fire, Ramesh Shama, Sunit and Ram Katori ran away, Suresh my younger son and his wife Shamo extinguished the
fire by throwing water on me. I raised alarm. On hearing alarm, my brother Roop Chand and his sons Om Parkash and Mohinder lifted me and
admitted in Civil Hospital. I have got recorded my statement without any pressure. I have stated so, whatsoever napped (happened ?) with me.
LTI Sugan Chand.
Thereafter, the investigating officer has recorded the proceedings, which came to an end at 2.00 a.m. on 23.8.1995. Perusal of document
indicates that it bears two thumb impressions of the deceased, out of which the one, which is not very clear has been attested by the doctor,
however, the doctor has not given any certificate at the end that when the statement was recorded, he remained present and the patient remained
conscious throughout. Certificate in that regard (Ex. PM-2), was given on 22.9.1995. With regard to existence of two thumb impressions on the
dying declaration, the investigating officer (PW-10) has stated that as the thumb of the deceased was burnt, his first impression was not proper so
he got the second thumb impression. Perusal of the thumb shows that the first one, which was attested by the doctor, is not very clear but in the
second ridges are very clear. It is not case of the prosecution that the second thumb impression was of the right hand thumb. If thumb was burnt, it
is very difficult to believe that when impression was put on the second time, it would give clear impression, as is apparent from the dying
declaration/statement.
Above said facts cast a doubt in the mind of the Court with regard to fitness of the deceased to make a statement. As per established law,
doctor''s certificate is not a gospel truth. If the circumstances so require the Court, to know authenticity of the statement, can look into the
attending circumstances. For the said purpose, the Court can embark upon its own independent scrutiny of the evidence on record. Whether such
scrutiny is necessary, it depends upon the facts of the case. It is requirement of the law that an uncorroborated dying declaration has to pass the
complete test of scrutiny, as such, it is necessary for us to look into evidence on record.
Individuals may, but the circumstances will not tell lie. PW-11 Dr. Ramesh Kumar, in his testimony before the Court, has admitted that when
Shugan Chand was admitted in the hospital, his general condition was very poor, he was conscious, however, his pulse and blood pressure was
not recordable. On account of his critical condition, he was referred to the PGI, Chandigarh. Burns were to the extent of 90%. This witness has
further admitted that generally, it is a practice to obtain thumb impression/signatures of a patient on medico-legal report. But in the present case,
signatures/thumb impression of the deceased was not obtained as his condition was very poor. This witness has further admitted that the deceased
was crying with pain and he gave medicines to the patient to minimize the same. It was further admitted that effect of the sedatives remains for 3 to
4 hours. Similarly, Dr. J.P. Sethi (PW-2) has stated that there were burns all over the body of the deceased except thighs, pubic region, legs,
which were having partial burns. Body was blackened due to charring and soot particles. Burns were of 2nd to 3rd degree in nature. This witness
has also admitted that usually sedatives are given to a burn patient to control the pain.
Facts mentioned above, create a doubt in the mind of the Court with regard to fitness of the deceased to make the statement. It has also come
in the testimony of PW-11 that when deceased was admitted in the hospital, he had not given any history as to how he has received the injuries. If
admittedly, sedatives were given, the medicines might have caused drowsiness and it cannot be reasonably except that the patient would remain fit
to make any statement, especially when his condition was very serious.
Another circumstance, which cast a doubt with regard to the recording of the dying declaration is that the same was not recorded by a
Magistrate, despite ample opportunity available in that regard. No doubt, as per law, dying declaration recorded by a police officer can be relied
upon by a Court. There is no clear mandate of law that the police officer cannot record a dying declaration. However, in cases where the
statement has been recorded by a magistrate, it indicates towards its authenticity. If any magistrate is available, it is desirable that he be summoned
and the statement be recorded in his presence. In the present case, the prosecution has failed to observe this safeguard when deceased''s statement
was recorded. In the Ruqa/intimation (Ex. PN), the doctor has specifically made a request to the officer concerned to make necessary
arrangement, for recording statement, by a duty magistrate. No attempt was made in that regard. In his statement, the investigating officer has
stated that after getting opinion from the doctor, he had gone to the house of a magistrate, which was situated nearby. The officer was not
available. He returned within 7 to 8 minutes and then recorded statements of the deceased. This statement of the investigating officer was negatived
by the doctor PW-1 when he stated that after coming to the hospital, the investigating officer had not gone out. Be that as it may, it is an admitted
fact that recording of the statement came to an end at about 2.00 a.m. on 23.8.1995. Death occurred at about 12.00 p.m. on 23.8.1995 i.e. after
more than ten hours. It is not case of the prosecution that after making his statement, the deceased had gone in coma and further that no magistrate
was available during course of the day, to record his statement. Despite opportunity available, no attempt has been made to summon the officer to
record statement of the deceased.
Volume 3 Chapter 13-A of the Rules and Orders of Punjab and Haryana High Court deals with dying declaration and process of recording
the same. Rule 2 clearly states that if possible, dying declaration be got recorded by a judicial magistrate. Rule 3 envisages that before a dying
declaration is recorded, the judicial magistrate shall satisfy himself that the declarant is in a fit condition to make that statement. Rule 7 lays down
that if possible, the officer recording dying declaration, shall get it attested from one or more out of the persons, who happens to be present at that
time. Rule 5 provides that the statement be read over to the declarant and in token of its correctness, his thumb impression/signatures be obtained
thereon.
In the present case, we feel that there is non-compliance to many of the rules, as referred to above. Besides Dr. Ramesh Kumar (PW-11),
Rup Chand and his son Om Parkash were also available at the spot. The investigating officer made no attempt to get their signatures on the alleged
statement made by the deceased. Once, it has come on record that the thumb of the deceased was burnt, (which fact is also apparent after looking
at the first thumb impression put on the dying declaration), then how clear second thumb impression has appeared on the statement, is a mystery.
Extensive burns were found on the upper portion of the body due to which it was not expected that the thumb will give clear impression as has
been shown in the dying declaration.
The investigating officer has not deposed that the statement was read over to the deceased and he accepted the same to be correct.
Motive
It is case of the prosecution that the deceased had disinherited Appellant No. 1 from his property, on account of that he had killed him. Though
the motive is not very important in criminal cases, however, where specific stand has been taken by the prosecution, it is supposed to produce
some evidence, during trial, with regard to the motive also. In the present case, in that regard, no evidence was brought on record. When, under
what circumstances, the deceased had disinherited the Appellant No. 1 from his property, is not clear on record. In the alternative, even as per
dying declaration motive lies only with Appellant No. 1. In that case, it is very surprising as to how and why Appellant No. 3, who is wife of the
deceased, would participate in the crime. There is no evidence that she was having strained relations with the deceased. Admittedly, she was
residing in the same house in which the deceased was living. If that is so, it is unbelievable that she will think of harming her husband. It appears that
an attempt has been made to involve all members of the family. Such like situation does not find favour with their Lordships of the Supreme Court
in Muneer Khan v. State of M.P., 2002(2) RCR(Cri) 458 (SC).
In view of facts mentioned above, the Court is not convinced with regard to authenticity of the alleged statement (Ex. PF) made by the
deceased. As per information supplied to us by the State counsel at the time of arguments, during trial and pendency of this appeal, Appellant No.
1 had undergone sentence more than seven years and seven months, Appellant No. 2 had undergone sentence more than four years and eight
months, Appellant No. 3 had undergone sentence more than five years and one month and Appellant No. 4 had undergone sentence more than
two years and two months.
As has been discussed above, counsel for the Appellants are successful in casting a doubt, with regard to recording of the dying declaration
(Ex. PF). The Court is not convinced with regard to authenticity of the statement in question. If the dying declaration is ignored there exists no
other evidence against the Appellants, on the basis of which, their conviction can be sustained.
In view of facts mentioned above, the Appellants are entitled to get benefit of doubt. Accordingly, the appeal is accepted and consequently, the
judgment and the order, under challenge, are set aside.