Punjab-Haryana High Court
Balwinder Singh & Another vs State Of Punjab on 23 July, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CRA No.622-DB of 2009 & 1
CRA No.617-DB of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: July 23, 2013
CRA No.622-DB of 2009
Balwinder Singh & another ...Appellants
Versus
State of Punjab ...Respondent
Present: Mr. Vinod Ghai, Senior Advocate, with
Mr. Sumanjit Singh, Advocate and
Mr. D.S.Pheruman, Advocate, for the appellants.
Mr. Pavit Mattewal, Addl. AG, Punjab,
for the respondent-State.
CRA No.617-DB of 2011
Palwinder Singh ...Appellant
Versus
State of Punjab & others ...Respondents
Present: Mr. T.P.S.Bhatti, Advocate, for the appellant.
Mr. Pavit Mattewal, Addl. AG, Punjab,
for respondent No.1-State.
Mr. Vinod Ghai, Senior Advocate, with
Mr. Sumanjit Singh, Advocate and
Mr. D.S.Pheruman, Advocate, for respondent Nos.2 & 3.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No.622-DB of Kumar Vimal 2009 preferred by Balwinder Singh and Daljeet Singh sons of Faqir 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 2 CRA No.617-DB of 2011 Singh against the judgment of conviction dated 07.07.2009 and order of sentence dated 08.07.2009 passed by the learned Additional Sessions Judge, Ropar, convicting and sentencing them for life imprisonment and to pay a fine of Rs.5000/- each for the offence punishable under Section 302 read with Section 34 IPC as well as to undergo rigorous imprisonment for 6 months for an offence punishable under Section 342 IPC; and Criminal Appeal No.617-DB of 2011 preferred by Palwinder Singh, husband of the deceased Darshan Kuar for claiming capital punishment for the appellants namely Balwinder Singh and Daljeet Singh.
The deceased namely Darshan Kaur wife of Palwinder Singh was dumb. The prosecution case was set in motion on the basis of her statement given to Mr. Harsimran Singh, Executive Magistrate, Chamkaur Sahib on 06.04.2001 on the basis of which FIR Ex.PW-11/A was lodged at about 12.45 PM at P.S. Chamkaur Sahib. The special report was received by the Magistrate at about 2.30 PM on the same day. Darshan Kaur was removed to Post Graduate Institute of Medical Education & Research, where she died on 13.04.2001 at about 00.10 AM.
Another fact, which needs to be mentioned, is that earlier the Investigating Agency furnished a report under Section 173 (8) of the Cr.P.C. on 13.10.2003 for the discharge of the accused-appellants on the ground that in the test identification parade held on 11.04.2001, the deceased Darshan Kuar has not identified the accused. The learned trial Court vide order dated 30.10.2003 rejected the cancellation report and Kumar Vimal made the accused to stand trial for the offence punishable under Section 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 3 CRA No.617-DB of 2011 302, 342 read with Section 34 IPC. Such order was challenged by the appellants before this Court by way of CR.R. No.2250 of 2003, which was allowed on 14.12.2005. However, the said order was set aside by the Hon'ble Supreme Court on 20.10.2008 in Criminal Appeal No.1682 of 2008 titled 'Palwinder Singh Vs. Balwinder Singh & others'. It was thereafter the trial in respect of both the appellants proceeded.
To prove the guilt of the appellants, the prosecution has examined Harsimran Singh, Executive Magistrate as PW-8; Narinder Singh, Reader (Retd.) as PW-3; Palwinder Singh, husband of the deceased, as PW-4; Dr. R.S.Bhatia as PW-10; Dr.Pankaj Mala as PW-9; Gulzar Singh as PW-1 and SI Gurcharan Singh, the Investigating Officer as PW-13 apart from examining the other witnesses of formal nature. After conclusion of the prosecution evidence, all the incriminating circumstances appearing against the appellants were put to them while recording their statements under Section 313 Cr.P.C. They denied the prosecution case in its entirety. They, inter alia, stated that Palwinder Singh, husband of the deceased Darshan Kaur, was a drunkard and on the previous night of the occurrence, a quarrel between Darshan Kaur and her husband took place and that Palwinder Singh had affairs with the sister of Darshan Kaur namely Kulwinder Kaur and there remained quarrel between them due to this reason. They also stated regarding the intention of Palwinder Singh for falsely implicating them in connivance with Ranjit Singh, who was a police officer.
The learned trial Court relied upon the dying declaration and found the appellants guilty of the offences punishable under Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 4 CRA No.617-DB of 2011 Sections 302 & 342 read with Section 34 IPC and sentenced them in the manner mentioned above.
Before this Court, learned counsel for the appellants has vehemently argued that the deceased was dumb and that there is no evidence that PW-8 Harsimran Singh, Thesildar-cum-Executive Magistrate could understand the signal language to record her statement. Her husband PW-4 Palwinder Singh was not stated to be present with Darshan Kaur, who could possibly explain the sign language. It is also argued that there is no prosecution evidence that the appellants were in hospital at the time of recording of her statement by the Executive Magistrate and how she has identified the appellants as the persons, who set her ablaze. Therefore, in the absence of evidence about the disclosure of the identity of the appellants in a manner known to law, the conviction of the appellants is based upon surmises and conjectures. It is also argued that PW-8 Harsimran Singh, Executive Magistrate has not sought opinion of the Doctor regarding fitness of Darshan Kaur to make statement. Therefore, in the absence of any certificate from the Doctor regarding fitness of the patient to make statement, the statement recorded lacks credibility and truthfulness. It is also argued that the Executive Magistrate in his cross-examination has admitted that the statement was recorded by his Reader namely PW-3 Narinder Singh and in his absence. Therefore, such statement, the very basis of the conviction of the appellants, is not proved, which may point towards the guilt of the appellants. It is also argued that neither PW-3 Narinder Singh, who has recorded the statement on the dictation of PW-8 Harsimran Singh, Executive Magistrate nor PW-1 Gulzar Singh, who Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 5 CRA No.617-DB of 2011 was present in the hospital at the time of recording of statement have not stated that how both the appellants were present at the time of recording of such statement, so as to identify them, as the persons, who set Darshan Kaur ablaze.
On the other hand, Mr. Mattewal controverted each of the arguments and has argued that the prosecution has been able to complete the chain of circumstances, which conclusively prove the commission of crime by the appellants. It is argued that in fact the evidence of Palwinder Singh itself is of oral dying declaration of the deceased given to him followed by the dying declaration recorded by the Executive Magistrate.
The statement (Ex.PW3/A) of Darshan Kaur was recorded by PW-8 Harsimran Singh, Executive Magistrate after the Station House Officer, P.S.Chamkaur Sahib sought opinion of the Medical Officer vide Ex.P10/B in respect of fitness of the patient to make statement. PW-10 Dr. R.S.Bhatia on such request has certified that the patient is fit to make statement. The statement (Ex.PW3/A) consisting of two pages was penned by PW-3 Narinder Singh, Reader on the dictation of PW-8 Harsimran Singh in question-answer form and duly signed by PW-10 Dr. R.S.Bhatia. Such statement when translated in English by the learned trial Court reads as under:
Q:- Do this fire caught your before sun rise in the morning?
A:- She moved her head signaling reply.
Q:- Who had set you on fire?
A:- Told by sign language that two persons set her on fire
out of them one kept his beard open and one has a
trimmed beard.
Kumar Vimal
2013.08.08 14:11
I attest to the accuracy and
integrity of this document
Chandigarh
CRA No.622-DB of 2009 & 6
CRA No.617-DB of 2011
Q:- Can you recognize the persons, who had set you on
fire after they are produced before you?
A:- She signaled yes. After being produce the persons in
front of her. She identified Daljeet Singh and
Balwinder Singh sons of Faqir Singh village Dholran by giving a signal.
Q:- How and where were you set on fire?
A:- Told by giving signal that these two persons had set
her on fire after dragging into their bara.
Q:- Do you had been set fire by pouring kerosene oil?
A:- Told by signaling no.
Q:- By using what you have been set on fire?
A:- She told by signal that fire is caused by throwing
sarkanda and turi after using a match stick
Q:- Do the clothes worn by you burnt due to fire?
A:- She signaled yes by moving her head.
Q:- Do anyone tried or committed rape you before setting
you ablaze?
A:- She signaled no.
Q:- Did you raised any noise when you were set ablaze?
A:- She signaled yes.
Q:- Did anyone came when you raised noise?
A:- She told no by giving sign.
Q:- Do these people restricted you from doing anything?
A:- She replied by signaling that they used to stop her
from answering nature's call near their bara.
Q:- Do these people quarreled or teased you before?
A:- She signaled no.
While stepping into witness box on 13.02.2009, PW-3 Narinder Singh, Reader deposed that on 06.04.2001, Harsimran Singh, Executive Magistrate took him to the Civil Hospital, Ropar for recording the statement of an injured lady. During conversation, Darshan Kaur made them understand through signals and he recorded the statement of Darshan Kaur on the instructions of Naib Tehsildar, Chamkaur Sahib, who had conversation with Darshan Kuar with signals. In his cross-examination, he stated that he himself and Naib Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 7 CRA No.617-DB of 2011 Tehsildar remained present in the room of Darshan Kaur in the hospital for about two hours. He did not remember whether there was any other patient in the room of Darshan Kaur. He stated that he did not know that if husband or any other relative or any other private person were present during the recording of statement of Darshan Kaur. It took 1½ hours to complete her statement. He stated that one or two persons came inside the room of Darshan Kaur for her identification, but he did not know their names. He denied the suggestion that the statement Ex.PW3/A was fabricated in connivance with Palwinder Singh, husband of Darshan Kaur and one Ranjit Singh, a Police Officer.
A perusal of the testimony of PW-3 Narinder Singh shows that no cross-examination was conducted that Darshan Kaur could not communicate with signals or that he or the Naib Tehsildar could not understand the language of signals. The lengthy cross-examination does not create any doubt on the veracity of the statement made by him.
PW-10 Dr. R.S.Bhatia in his examination-in-chief has tendered into evidence affidavit Ex.PW10/C. He also proved the endorsement Ex.PW10/B to the effect that the patient was fit to make statement. He deposed that after about two hours, SHO again came to his room, where he was examining the bed head tickets of patients and secured his signatures on the writing, which the SHO told him that it was the statement of Darshan Kaur. He deposed that Darshan Kaur had not made any statement in his presence. In his cross-examination, PW- 10 Dr. R.S.Bhatia stated that no identification of any assailant was got done from Darshan Kaur in his presence at that time. The said witness Kumar Vimal has stated that he declared the patient fit to make statement at about 9.30 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 8 CRA No.617-DB of 2011 AM, when SHO, P.S.Chamkaur Sahib came to the hospital and after giving fitness certificate, he started examining other patients. We find that even if the Doctor was not present during the process of recording of the statement, it will not affect the truthfulness of the statement being recorded by PW-3 Narinder Singh as dictated by the Executive Magistrate.
The argument that PW-8 Harsimran Singh has not taken the opinion of the Doctor regarding the fitness of Darshan Kaur to make statement is wholly unwarranted. The Station House Officer has taken opinion of the Doctor at 9.30 AM soon thereafter the Executive Magistrate has recorded the statement of Darshan Kaur. There is no cross-examination either on PW-3 Narinder Singh, Reader or on PW-8 Harsimran Singh that the patient was not conscious to make statement. In fact, PW-3 Narinder Singh, Reader has categorically deposed that she was communicating with signal language. Dying declaration Ex.PW3/A is proved to be recorded in fit mental state by PW-3 Narinder Singh, Reader. Therefore, the argument that the Executive Magistrate has not taken opinion of the Doctor about the fitness of the patient is untenable.
The statement in examination-in-chief of PW-8 Harsimran Singh, Executive Magistrate was recorded on 27.02.2009, whereas the cross-examination was conducted on 09.03.2009 i.e. after the conclusion of the evidence of PW-3 Narinder Singh on 13.02.2009. In examination-in-chief, the statement of PW-8 Harsimran Singh is categorical that Darshan Kuar was dumb and could not speak, but she used to hear and to make understand her feelings through gestures. Kumar Vimal Therefore, he examined her and she also replied through gestures and 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 9 CRA No.617-DB of 2011 then he used to dictate to his Reader. He deposed that being dumb, she explained the occurrence through gestures. However, during cross- examination he stated that when he reached hospital, his Reader and SHO, Chamkaur Sahib were already present there and that SHO told him that the statement of Darshan Kaur has already been got recorded by his Reader. He satisfied himself from his Reader. He proved his signatures on statement Ex.PW3/A, which was recorded by his Reader prior to his arrival there. The somersault in the cross-examination of PW-8 Harsimran Singh, Executive Magistrate made the prosecution agency to move an application for his re-examination. Such application was allowed on 28.04.2009. The witness was served for 08.05.2009, but he expressed his inability to appear as a witness on 08.05.2009 as he was discharging duty as Assistant Electoral Registration Officer, Sardulgarh, as the counting had to take place on 16.05.2009 and requested for a date after 16.05.2009. Thereafter, fresh summons were issued for 19.05.2009, but the said witness failed to appear on the said date as well. However, the learned Public Prosecutor closed the prosecution evidence on the said date.
The learned trial Court vide impugned judgment ordered initiation of proceedings under Section 344 of the Code of Criminal Procedure. Such proceedings have been dropped vide order dated 10.09.2010 by the learned Additional Sessions Judge. The counsel for the appellants has produced such order, which is taken on record as "Ex.C". The stand of the witness in such proceedings is that he has not given the statement in question deliberately or with mala-fide intention and that there is no affect of his statement upon the prosecution case, as Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 10 CRA No.617-DB of 2011 the trial Court had convicted the accused for life imprisonment for the offence under Section 302 IPC. He denied any connivance with the accused and submitted that minor discrepancies are bound to occur and that his statement was minimal on the administration of justice. It was also stated that PW-5 Tehal Singh, PW-6 Kulwant Singh and PW-7 Balbir Singh have not supported the prosecution case and two of them are the real brothers of the deceased. The learned trial Court observed that the witness has not denied the factum of recording of the statement of the deceased and the discrepancy can occur due to passage of time and human memory faded with the passage of time and that there can be irregularity at the time of recording of dying declaration, but it cannot be said that he made a false statement.
Though this Court is not sitting in appeal over the order dated 10.09.2010 passed by the Additional Sessions Judge dropping the proceedings against the witness, but we are pained to find that not only the stand of the witness was incorrect, but the learned trial Court has erred in law and proceeded to pass an order without verification of the facts. None of the witnesses i.e. PW-5 Tehal Singh, PW-6 Kulwant Singh and PW-7 Balbir Singh are the real brothers of the deceased. PW-5 Tehal Singh is the brother of Palwinder Singh, husband of the deceased. The other two are not related to the deceased in any manner. The cavalier manner in which the order was passed shows sincerity and commitment to find truth. We say no more at this stage.
PW-13 SI Gurcharan Singh, the Investigating Officer, in his cross-examination stated that Naib Tehsildar accompanied with his Kumar Vimal Reader reached Civil Hospital at 10.30 AM. Such is the statement of 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 11 CRA No.617-DB of 2011 PW-3 Narinder Singh, when he stated in his statement that on 06.04.2001, he was taken to Civil Hospital, Ropar by Harsimran Singh, Naib Tehsildar-cum-Executive Magistrate, later examined as PW-8. Therefore, the statement in the cross-examination by PW-8 Harsimran Singh that the statement was recorded by his Reader prior to his reaching at hospital is palpably wrong and dishonest, more so when no cross-examination was conducted either on PW-3 Narinder Singh, Reader, prior to the recording of statement of PW-8 Harsimran Singh that the Executive Magistrate came later and signed the statement nor PW-13 SI Gurcharan Singh, who was examined later on. Therefore, one line in the cross-examination of PW-8 Harsimran Singh is not sufficient to discard the truthfulness of the statement of Darshan Kaur recorded by PW-3 Narinder Singh, Reader on the dictation of PW-8 Harsimran Singh.
The statement Ex.PW3/A is corroborated by the testimony of PW-4 Palwinder Singh, who deposed that he married Darshan Kaur in the year 1984 and that in the year 1987, she suffered an attack of paralysis and due to that attack she became dumb. On 06.04.2001, he saw that his wife Darshan Kaur came from outside and she was suffering burn injuries and the clothes which she was wearing were also burnt due to fire. She took him outside the house and when they reached near the haveli of Faqir Singh, one lady namely Bhago met them. He asked her (Bhago) that had she seen any person there, as his wife had suffered burn injuries. Said Bhago told him that as she came out from her house, Darshan Kaur had caught hold her, as a result of which she got frightened and returned to her own house. Thereafter, his wife took Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 12 CRA No.617-DB of 2011 him into a room where she suffered burn injuries. He deposed that he lost his balance and started weeping there. He deposed that his wife Darshan Kaur told him that she was set on fire by the sons of Faqir Singh namely Daljeet Singh and Balwinder Singh and that she had made him understand this fact with the gestures. Thereafter, with the help of 2/3 persons, he took Darshan Kaur to Chamkaur Sahib Hospital for treatment. In the hospital, Daljeet Singh, Balwinder Singh as well as Tehsildar also reached there, where her statement was recorded by the Tehsildar. There is no cross-examination conducted in respect of presence or the absence of the accused in hospital on 06.04.2001. In cross-examination, he stated that the Station House Officer, Chamkaur Sahib showed the grass to Darshan Kaur and asked her if she was set ablaze with the said grass and she replied in affirmative by signal. It was the Station House Officer, who himself brought grass for showing it to Darshan Kaur. He further stated that he was sent by the Doctor to bring medicine and he did not know when the Reader of the Tehsildar arrived in the hospital. He stated that after recording of statement, he took Darshan Kaur to PGI, where she remained up till 13.04.2001.
The dying declaration Ex.PW3/A written by PW-3 Narinder Singh, Reader is proved to have been given by Darshan Kaur in conscious state of mind. Such dying declaration is trustworthy and reliable. There is another earlier oral dying declaration given by the deceased Darshan Kaur to her husband PW-4 Palwinder Singh. Such oral dying declaration given to PW-4 Palwinder Singh is corroborated by the dying declaration Ex.PW3/A, mentioned above. Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 13 CRA No.617-DB of 2011 A perusal of the statement of PW-4 Palwinder Singh, husband of the deceased shows that Darshan Kaur told him that she was set on fire by the sons of Faqir Singh namely Daljeet Singh and Balwinder Singh and that she had made him understand this fact with the gestures. Such is the first statement in respect of incident in question and, thus, is the first dying declaration. The dying declaration, if reliable and trustworthy, can be oral as well. Reference may be made to Parbin Ali & another Vs. State of Assam (2013) 2 SCC 81, wherein it has been held to the following effect:
"13. Before we proceed to scrutinise the legal acceptability of the oral dying declaration, we think it seemly to refer to certain decisions in regard to the admissibility and evidentiary value of a dying declaration. In Khushal Rao v. State of Bombay AIR 1958 SC 22, Kusa v. State of Orissa (1980) 2 SCC 207 and in Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182 (SCC p. 183, para 4) it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence.
14. In Ranjit Singh v. State of Punjab (2006) 13 SCC 130, it has been held that: (SCC p. 134, para 13) "13. ...conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence."
In this context, we may also notice the judgment in Nanhau Ram v. State of M.P. 1988 SCC (Cri.) 342 wherein it has been stated that normally, the court, in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 14 CRA No.617-DB of 2011
15. While dealing with the evidence of the declarant's mind, the Constitution Bench in Laxman v. State of Maharashtra (2002) 6 SCC 710, has laid down thus: (SCC pp. 713-14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."
xxx xxx xxx
17. Regard being had to the aforesaid principles, we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman Vs. State of Maharashtra (2002) 6 SCC Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 15 CRA No.617-DB of 2011 710 by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two-Judge Bench decision in Prakash v. State of M.P. (1992) 4 SCC 225 wherein it has been held as follows: (SCC p. 234, para 11) "11. ...In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."
18. It is worthy to note that in the aforesaid case this Court had laid down that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration.
xxx xxx xxx
21. ...In this backdrop, it can safely be concluded that the deceased was in a conscious state and in a position to speak. Thus, it is difficult to accept that the wife, the father-in-law and other close relatives would implicate the appellant-accused by attributing the oral dying declaration to the deceased. That apart, in the absence of any real discrepancy or material contradiction or omission and additionally non-cross-examination of the doctor in this regard makes the dying declaration absolutely credible and the conviction based on the same really cannot be faulted."
In view of the above, we find that Darshan Kaur has made oral dying declaration to her husband PW-4 Palwinder Singh. The Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 16 CRA No.617-DB of 2011 understanding of signal language by her husband PW-4 Palwinder Singh is not in question. The statement of PW-4 Palwinder Singh in Court in respect of the statement made by Darshan Kaur to him is trustworthy, reliable and supported by other circumstances on record more particularly, the dying declaration recorded by PW-3 Narinder Singh at the instance of PW-8 Harsimran Singh.
The truthfulness of the dying declaration Ex.PW3/A can be examined from another angle as well. Even if, PW-8 Harsimran Singh has not recorded the statement, but PW-3 Narinder Singh has categorically admitted that he recorded the statement of Darshan Kaur on 06.04.2001. Such statement recorded by PW-3 Narinder Singh is again a dying declaration, which can be taken into consideration. It is not necessary that dying declaration has to be recorded by an Executive Magistrate or a Judicial Magistrate.
PW-5 Tehal Singh, brother of Palwinder Singh, husband of the deceased, was declared hostile, when he stated that he did not know how she was set ablaze. In his cross-examination by the counsel for the accused, he stated that he saw Darshan Kaur coming out of the kitchen and having burn injuries and that the place of occurrence i.e. bara is adjacent to his house. PW-6 Kulwant Singh and PW-7 Balbir Singh are the residents of the same village, who disowned their previous statements made to the Police.
The place of occurrence i.e. bara of the accused is not in dispute though it is the stand of the appellants that none is residing in the bara. Though the report under Section 173(8) was based upon test Kumar Vimal 2013.08.08 14:11 I attest to the accuracy and integrity of this document Chandigarh CRA No.622-DB of 2009 & 17 CRA No.617-DB of 2011 identification parade held on 11.04.2001, but no evidence has come on record either by the prosecution or by the defence in respect of any such statement recorded. Neither any witness of the fitness of the deceased nor the person, who recorded such statement has been examined. In the absence of any evidence of test identification parade held on 11.04.2001, we find that the dying declaration made firstly to Palwinder Singh and then recorded by PW-3 Narinder Singh on the dictation of PW-8 Harsimran Singh, Executive Magistrate is trustworthy, reliable and sufficient to affirm the findings of guilt recorded by the learned trial Court.
Now coming to the appeal filed by Palwinder Singh claiming capital punishment for the appellants, we do not find any merit in the said appeal, as the learned counsel for the appellant could not raise any meaningful argument in respect of his plea of awarding capital punishment. It is not a case where punishment of life imprisonment deserves to be enhanced to death. There is no grave circumstance to award such punishment nor it is a rarest of rare case warranting such punishment.
Consequently, we do not find any merit in both the appeals. The same are accordingly dismissed.
(HEMANT GUPTA)
JUDGE
July 23, 2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.08.08 14:11
I attest to the accuracy and
integrity of this document
Chandigarh