Allahabad High Court
Pradeep Kumar S/O Chhote Singh Alias ... vs State on 31 March, 2004
Author: U.S. Tripathi
Bench: U.S. Tripathi, M. Chaudhary
JUDGMENT U.S. Tripathi, J.
1. This appeal has been preferred against the judgment and order dated 4.5.1982, passed by VII Addl. Sessions Judge, Mainpuri in Sessions Trial No. 465 of 1980, convicting the appellant under Section 302 read with Section 34 I.P.C. and sentencing him to imprisonment for life.
2. The prosecution story briefly stated was that litigations regarding property were going on between the families of Dhirendra Pal Singh deceased and appellant Pradeep on account of which there was enmity between the parties.
3. On the evening of 21.6.1980 Dhirendra Pal deceased along with his wife Smt. Suman Chauhan (PW1) had gone to market for purchasing. Thereafter he along with his wife was returning to his house situate near Bhanwat crossing in Mainpuri City on a rickshaw. At the railway crossing rickshaw was left and deceased and his wife were proceeding on road on foot. Smt. Suman Chauhan (PW1) was few steps behind the deceased. Appellant Pradeep was standing with a gun on western partari of the road, in front of shop of Virendra Carpenter along with his two associates. A red coloured motor cycle was parked there. When the deceased reached near the appellant he told him that he would deal with him. Saying it the appellant fired from his gun on the deceased. The associates of the appellant also fired from their respective country made pistols. Sustaining injuries the deceased fell down. 4-5 persons including Arvind Singh (PW2), present near the spot came there. The appellant and his associates made their escape good by riding on the motor cycle.
4. Smt. Suman Chauhan (PW1) arranged a rickshaw and with the help of her son and brother in law brought Dhirendra Pal to District Hospital, Mainpuri, where he was medically examined at 7.30 p.m. by Dr. Pradeep Kumar (PW7), who found following injuries on his person.
(1) Gun shot wound of entrance 3.5 x 3 x 10 cm. (further depth not probed, abdominal cavity deep.) on right side 2 cm below and outer side. Margins lacerated and inverted. Advised X-ray of abdomen and hip joint. Bleeding present.
(2) Gun shot wound of entrance 0.5 x 0.5 cm x depth not probed, 11 cm above the left nipple at 12 O'clock position. Bleeding present. Advised X-ray of chest.
(3) Gun shot wound of exit with everted margins 1 x 1 cm x not probed on back of left upper arm, 7 cm below from top of shoulder.
(4) Multiple abrasion in an area 8.5 cm x 4 cm on left side face just lateral to nose
5. General condition was very low. Patient was admitted for treatment. Detailed examination not done. Pulse was pulse less and patient was in shock.
6. Injuries 1, 2 and 3 were kept under observation, caused by fire arm, No. 4 by friction and all injuries were fresh in duration.
7. Smt. Suman Chauhan (PW1) prepared report of the occurrence at the hospital and lodged the same at P.S. Kotwali at 7.45 p.m. On the basis of written report Head Constable Bhagwan Swarup (PW5) prepared check report, made an endorsement of the same in the G.D. report and registered a case against the appellant and two unknown persons under Section 307 I.P.C.
8. After admission of the deceased in the hospital, the Magistrate was called to record his dying declaration. Brij Mohal Mittal (PW4) the then Tehsildar reached the hospital at 7.50 p.m. and after getting certified the mental fitness of the deceased from Dr. Pradeep Kumar (PW7) recorded dying declaration of the deceased (Ext. Ka-5).
9. The investigation of the case was taken up by Tilak Ram Verma (PW8) who came to District Hospital and interrogated the deceased and Suman Chauhan (PW1).
10. The deceased was referred to Medical College, Agra. He was being taken to Agra in a truck but died in the way. His dead body was then brought to District Hospital, Mainpuri.
11. The information regarding death of Dhirendra Pal deceased was received at P.S. Kotwali at 10.40 p.m. on the basis of which case was altered under Section 302 I.P.C.
12. The I.O. visited the spot, inspected place of occurrence, prepared site plan and recovered blood from the spot.
13. Inquest of the dead body of deceased was conducted on 22.6.80 by P.L. Gupta who sealed the dead body and sent for post mortem.
14. Autopsy on the dead body of deceased was conducted on 22.6.80 by Dr. J.B. Gupta (PW3) who found following ante mortem injuries on the person of deceased :-
(1) Gun shot wound of entrance 1 x 1 cm x muscle deep over left side chest 11 cm above the nipple at 12 O'clock position. Margins inverted. On dissection its direction was just towards injury No. 2.
(2) Gun shot wound of exit 1.3 cm x 1.3 cm x bone deep over the post surface of left arm below the top of shoulder. Margins everted. Underneath bone fractured. On dissection its direction was found oblique towards injury No. 1.
(3) Gun shot wound of entrance 4 cm x 4 cm x cavity deep over right side of abdomen lower part, 4 cm below and lateral to anterior superior iliac spine. Underneath bone fractured. Margins inverted.
(4) Multiple abrasion in an area of 5 x 4 cm over left side of face 2 cm below the left eye varying in size from 1 x 0.2 x 0.2 x 0.2.
(5) Gun shot wound of exit 1 cm x 1 cm x muscle deep over left side of back, 3 cm lateral to mid line of sacrum.
(6) One gun shot wound of exit 1 x 1 cm x muscle deep over left side of back 1 cm below and medial to injury No. 5.
(7) Nodular swell 1 x 1 cm over lower part of back, 1 cm left to joint of hip.
15. One wad piece of card board and two large pellets were recovered from injury No. 3 and two large pellets were recovered from injury No. 7.
16. Cause of death was shock and hemorrhage due to injuries described above.
17. The appellant was arrested on 22.6.80 at 7 a.m. near Pokhana Railway Station and a red coloured motor cycle bearing registration No. DEX 1868 was recovered from his possession. The I.O. completed remaining investigation and challaned the appellant.
18. Cognizance of the case was taken by the Magistrate who committed the case to the court of Sessions.
19. The appellant was charged under Section 302/34 I.P.C. He pleaded not guilty and contended his false implication due to enmity.
20. The prosecution in support of its case examined Smt. Suman Chauhan (PW1) and Arvind Singh (PW2) as witnesses of fact besides Dr. J.B. Gupta (PW3), Brij Mohan Mittal (PW4), Bhagwan Swarup Head Constable (PW5). A.P. Singh Sub Inspector (PW6). Dr. Pradeep Kumar (PW7), Tilak Ram Verma I.O. (PW8) and filed affidavit of Constable Abdul Aziz (PW9) as formal witnesses.
21. The learned Sessions Judge on considering the evidence of prosecution and dying declaration of deceased held that the prosecution had succeeded in proving the guilt of the appellant. With these findings he convicted and sentenced the appellant as mentioned above.
22. The appellant has challenged his conviction and sentence in this appeal.
23. We have heard Sri V.P. Srivastava, learned counsel for the appellant, learned AGA for the respondent and Sri Ramji Saxena for complainant and have gone through the evidence on record.
24. The death of Dhirendra Pal Singh, deceased on account of gun shot injuries is not disputed. According to prosecution 3-4 fire arm injuries were caused on the deceased. The medical evidence of Dr. J.B. Gupta (PW3) established the existence of two gun shot wounds of entrance, three gun shot wounds of exist, multiple abrasion and nodular swell on different parts of the body of the deceased, which resulted into his death. As such the death and cause of death of deceased is established.
25. The date, time and place of occurrence is also not seriously disputed. The prosecution alleged that the fatal injuries on the deceased were caused on 21.6.1980 at about 7.00 p.m. near Bhanwat Chauraha towards south of Railway crossing. The ocular witness Smt. Suman Chauhan (PW1) and Arvind Singh (PW2) have stated that the occurrence took place on the said date time and at said place. The report of the occurrence was lodged by Smt. Suman Chauhan at 7.45 p.m. Prior to lodging of the report the deceased was brought to District Hospital, Mainpuri in a rickshaw, where he was medically examined at 7.30 p.m. The manner in which the deceased was brought to the hospital and report was lodged, established the date and time of occurrence. The I.O. visited the spot on the same night and found blood on the spot. A suggestion was given to Smt. Suman Chauhan (PW1) on behalf of appellant that the deceased was returning to his house alone on his motor cycle and was murdered some where else. She denied the above suggestion and there is no evidence on record to show that the deceased was assaulted at some other place.
26. Learned counsel for the appellant further contended that the I.O. had not shown in the site plan from which place he collected the blood. In the site plan the place from which the blood was taken is not shown but the I.O. had shown the place of assault with letter 'X' on the road in front of the shop of Virendra Carpenter. In the recovery memo Ext. Ka-2 the I.O. had mentioned that the blood stained concrete was taken into possession from the road in front of shop of Virendra Badhai. As such the place of taking blood is mentioned in the recovery memo and its omission in the site plan does not rule out the place of occurrence.
27. Learned counsel for the appellant further contended that in his dying declaration Ext. Ka-5, the deceased had mentioned difference place of occurrence i.e. in front of his house at Bhanwat crossing but the ocular witnesses Smt. Suman Chauhan (PW1) and Arvind Singh (PW2) have stated that the occurrence took place near Bhanwat Chauraha On the road in front of shop of Virendra Carpenter. He also pointed out that according to site plan kothi of Dhirendra Pal Singh deceased is situate on Power House Road towards west of Bhanwat crossing and, therefore, the place of occurrence is contradicted by dying declaration. Having considered the evidence of above ocular witnesses, site plan and evidence of I.O. as well as dying declaration we find that there is no material difference in the place of occurrence as the place of occurrence in the dying declaration is given in general form. Bhanwat Chauraha is undisputedly situated towards south east of the house of deceased after two houses and the entire area is commonly known as Bhanwat Chauraha which is near the house of deceased. Therefore, there is no material difference in the place of occurrence and it is established that the occurrence took place near Bhanwat Chauraha in front of the house of Virendra Carpenter.
28. The prosecution has relied on ocular testimony of Smt. Suman Chauhan (PW1) and Arvind Singh (PW2) as well as two dying declarations, the first recorded by Tehsildar Magistrate (Ext Ka-5) and the second by Investigating Officer under Section 161 Cr.PC. Learned counsel for the appellant contended that the presence of Smt. Suman Chauhan (PW1) on the spot is doubtful; that Arvind Singh (PW2) is resident of another village. He claimed that he was residing with his brother in a tented room, but he could not name the landlady and the house in which he was residing was not shown by the I.O. in the site plan. That he witnessed the occurrence from a considerable distance and was not in a position to observe the incident, therefore, his presence is also doubtful. That no independent witness was examined and a false explanation was offered that the nearby shops were closed. He further contended that the dying declaration recorded by Tehsildar is not reliable as it was not signed by the deceased. That prior to recording of the dying declaration injection of pathidine was administered to the deceased and, therefore, he was not in a fit mental condition to give dying declaration and that the dying declaration was manipulated.
29. The ocular evidence adduced by the prosecution consists of evidence of Smt. Suman Chauhan (PW1) and Arvind Singh (PW2). Smt. Suman Chauhan (PW1) stated that on 21.6.1980 at about 7.00 p.m. she was returning to her house from market along with her husband Dhirendra Pal Singh deceased. When she along with her husband reached at the Railway crossing both proceeded on foot towards her house. She was 5-6 paces behind her husband. She saw the appellant Pradeep and his two associates standing in front of the shop of Virendra Badhai. A red coloured motor cycle was also parked there. Appellant Pradeep was having gun in his hand. When her husband reached in front of the shop of Virendra Badhai, the appellant told that he would deal with him. Saying it he fired gun shot on the deceased. His two associates also fired on the deceased with country made pistols. Her husband sustaining injuries fell down. 4-5 persons present there including Ram Sevak, Narendra Singh, Yogendra Pal Singh, Ummed Singh and Arvind Singh (PW2) came to spot. The appellant and his associates fled away on the motor cycle towards Bhanwat Chauraha. She arranged a rickshaw and with the help of persons present there got the deceased seated on the rickshaw and took him to hospital. Her elder son Praveen Chauhan and brother in law Yogendra Pal also accompanied her to the hospital. She admitted her husband in the hospital. Thereafter she prepared a report and went to police station Kotwali along with her brother in law and lodged the report there. Thereafter she returned back to the hospital where she was interrogated by the I.O. Tehsildar also came to the hospital and recorded statement of her husband. On the advice of doctor she was taking the deceased to Agra in a truck for further treatment but he died in the way at about 10.00 p.m. Then she returned back along with the dead body of deceased to the hospital.
30. Arvind Singh (PW2) stated that on the date of occurrence at about 6.45 p.m. he was standing at Bhanwat Chauraha. At that time he was residing in Ahata of Ram Chandra along with his elder brother. He saw that Dhirendra Pal Singh was coming from city side. His wife was also behind him. When they after crossing Railway crossing, reached in front of shop of Virendra Badhai, appellant Pradeep along with his two associates was standing in front of shop of Virendra Badhai. Appellant Pradeep was having gun and his associates were having country made pistols. A red coloured motor cycle was parked near them. Observing the deceased the appellant Pradeep exhorted that he would settle with him and saying it he fired on him with his gun. His associates fired on him with country made pistols. Sustaining injuries Dhirendra Pal Singh deceased fell down. Ho and other persons raised alarm and when he reached near the deceased the appellant and his associates fled away on the motor cycle. He and other persons got seated the deceased in a rickshaw. The son of deceased also came there. Dhirendra Pal Singh deceased was taken to hospital by his son, brother and wife. The I.O. had visited the spot in the night and called him. The I.O. had collected blood stained concrete from the spot in his presence and he had signed recovery memo Ext. Ka-2.
31. Smt. Suman Chauhan (PW2) admittedly is wile of deceased. She claimed that on the date of occurrence she had gone along with her husband to the market for making certain purchases. She also clarified that she had purchased one Saree and one frock and after making purchases she was returning to her house along with her husband on a rickshaw. The rickshaw was left at Railway crossing. Thereafter she and her husbands were proceeding on foot towards their house. She also clarified that the occurrence had taken place at about 7.00 p.m. when there was sufficient light. She denied the suggestion of the appellant that her husband had gone alone on a motor cycle and the occurrence took place while he was returning to his house. As mentioned above the place of occurrence has been established by the presence of blood on the spot. Smt. Suman Chauhan has given plausible explanation for her presence on the spot. The house of witness was near the Railway crossing and therefore, it was natural that the rickshaw was left at Railway crossing and she was proceeding along with her husband on foot. She was cross examined at great length but her testimony could not be shaken. She had brought the deceased to the District Hospital, Mainpuri. No doubt in the injury report Ext. Ka-21 it is mentioned that the injured Dhirendra Pal Singh was brought by his son Praveen Chauhan, but Smt. Suman Chauhan had stated that her elder son Praveen Chauhan had also accompanied her to the hospital. It is common practice to mention the name of only one person in the hospital records and not all the persons who accompanied the deceased. The evidence of Head Constable Bhagwan Swarup (PW5) proved that Smt. Suman Chauhan (PW1) had handed over the written report Ext. Ka-1 at police station Kotwali on the evening of occurrence at 7.45 p.m. The above evidence corroborated the evidence of Smt. Suman Chauhan regarding her presence on the spot.
32. No doubt Smt. Suman Chauhan is close relative of the deceased but it is no ground to discard her testimony. She had withstood the searching cross examination and her testimony remained unshaken.
33. Smt. Suman Chauhan (PW1) further stated that shots were fired on her husband from right side. She denied the suggestion that shots were fired on the deceased from back side. She also stated that first shot was fired on the deceased from a distance of 4-5 paces. Dr. J.B. Gupta (PW3) stated that there was no blackening and scorching around the gun shot wounds and therefore, shots were fired from the distance of about four feet. He also stated that seat of injury No. 1 and 3 suggested that shots were fired on the deceased from right side. The above evidence of Smt. Suman Chauhan and Dr. J.B. Gupta tally with the spot situation as the deceased was proceeding towards south, and the assailants were standing towards his right side in front of shop of Virendra Badhai. Therefore, the injuries were caused from right side of the deceased.
34. The occurrence allegedly took place at about 7.00 p.m. in the month of June. At that time there was sufficient light. Therefore, Smt. Suman Chauhan was in a position to recognize the appellant who was known to her from before. In this way the evidence of Smt. Suman Chauhan finds corroboration from medical evidence, F.I.R. and other circumstances of the case. Therefore, her testimony is clear, cogent and trustworthy.
35. Regarding Arvind Singh (PW2) it was contended that his presence on the pot is doubtful as he was resident of village Chatreha, P.S. Kurra, which was at a distance of about ten miles from Mainpuri city. But the witness clarified in his cross examination that he was studying at Gwalior and his school was closed and therefore he had come to his brother. His brother Ashok Kumar was residing in the house of one Misra near Bhanwat crossing and was residing with him. He also clarified that his brother was residing in the said house prior to six months of the occurrence as he was doing Thekedari in Canal Department. However, he admitted that Indra Pal Singh was brother in law of appellant Pradeep but he denied that his brother was partner of Ummed Singh in a diesel and kerosene oil shop. He showed his ignorance about any transaction between Ummed Singh and Indra Pal Singh. There is nothing in the cross examination of the witness to show that he had any motive to depose falsely against the appellant.
36. It is true that the house in which the witness was residing was not shown in the site plan, but he stated that he was residing in Ram Chandra Ahata. Rasta of Ram Chandra Ahata is shown in the site plan which is towards east of Bhanwat road. Thus it is established that Ahata of Ram Chandra is situate near the place of occurrence. Thus in all probabilities the witness was present near Bhanwat Chauraha in the evening.
37. It was contended that Arvind Sigh (PW2) was not knowing the name of land lady of his brother and therefore he was not residing with his brother. The witness had no concern with the land lady and therefore on this ground his residence near Bhanwat crossing and presence on the spot can not be doubled. The name of witness finds place in the F.I.R. He was interrogated by the I.O. in the night of occurrence and had attested the recovery memo regarding collection of blood stained and simple concrete from the spot. His evidence is also corroborated by the medical evidence and F.I.R. In this way we find nothing in the cross examination of the witness to doubt his presence on the spot. He had no ground to depose falsely. Therefore, the evidence of Arvind Singh (PW2) is also trustworthy.
38. Besides the above ocular testimony the prosecution has relied on dying declaration of the deceased Ext. Ka-5 recorded by Shri. Brij Mohan Mittal (PW4), then Tehsildar. Shri Mittal (PW4) stated that he was called to District Hospital for recording dying declaration. He recorded the statement of Dhirendra Pal Singh deceased at 7.50 p.m. which was Ext. Ka-5. He further stated that above statement was in his handwriting and was signed by him. He further stated that before recording statement he had satisfied that the patient was in a fit mental condition to give statement. He also obtained certificate of doctor about mental condition. Dr. Pradeep Kumar (PW7) stated that the Tehsildar was called for recording dying declaration of injured Dhirendra Pal Singh and he had made endorsement to this effect in accidental register. He also proved the certificate about mental condition of the deceased on the dying declaration and stated that at the time of recording of dying declaration the patient was in a fit mental condition to give ' the statement.
39. Learned counsel for the appellant challenged the reliability of dying declaration Ext.Ka-5 on the following grounds :-
1. It was not signed by the deceased.
2. In the bed head ticket of the deceased it was mentioned that at the time of admission he was unconscious, pulse was not palpable and B.P. not recordable.
3. Pathidine injection was provided at the time of admission and therefore patient was not in a fit mental condition due to sedation.
4. Place of occurrence was shifted in dying declaration.
40. Reliance was placed on the decisions of Apex Court in State of U.P. v. Shishupal Singh 1994 Cr.L.J 617 and State (Delhi Administration v. Laxman Kumar), 1986 Cr.L.J. 155.
41. Learned counsel for the complainant contended that there is no legal requirement that the dying declaration must be signed and the evidence on record shows that the dying declaration was voluntary, not result of tutoring was recorded by the Magistrate having no ground to falsely manipulate the dying declaration and it was recorded when the declarant was in a fit mental condition to give the statement.
42. Under Section 32 of Evidence Act statements, written or verbal, of relevant facts made by a person who is dead, or who can not be found or who has become incapable of giving evidence, or whose attendance can not be procured without any amount of delay or expenses which under the circumstances of the case appears to the Court unreasonable are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
43. In P.B. Radhakrishnan v. State of Karnataka 2003 AIR SCW 3587; (2003) 6 SCC 443, the Apex Court laid the following principles governing the dying declaration.
(i) There is neither rule of law nor of prudence that dying declaration can not be acted upon without corroboration. (See Munnu Raja and Anr. v. State of Madhya Pradesh (1976) 2 SCR 764).
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ors. A.I.R. 1985 SC 416 and Ramawati Devi v. State of Bihar AIR 1983 SC 164).
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the dying declaration is not result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make declaration. ( See K. Ramachandra Reddy and Anr. v. Public Prosecutor AIR 1976 SC 1994).
(iv) Where the dying declaration is suspicious it could not be acted upon without corroborative evidence. (Sec Rashid Beg v. State of Madhya Pradesh 1974 (4) SCC 264).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kaka Singh v. State of Madhya Pradesh A.I.R. 1982 S.C. 1021).
(vi) The dying declaration which suffers from infirmity can not form the basis of conviction. (See Manorath and Ors. v. State of U.P. 1981 (2) SCC 654).
(vii) Merely because the dying declaration does contain, details as to the occurrence it is not to be rejected. (See State of Maharastra v. Krishnamurthy Laxmi Pati Naidu A.I.R. 1981 SC 617).
(viii) Equally merely because it is a brief statement it is not to be discarded on the contrary the shortness of the statement itself guarantees truth. (See Suraj Dev Oza and Ors. v. State of Bihar A.I.R. 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make dying declaration look to the medical opinion but where the eye witnesses said that the deceased was in a fit and conscious state to make dying declaration, the medical opinion can not prevail. (See Nanahau Ram and Anr. v. State of Madhya Pradesh A.I.R. 1988 S.C. 912).
(x) Where the prosecution version differs from the version given in the dying declaration the said declaration can not be acted upon. (See State of U.P. v. Madan Mohan and Ors. A.I.R. 1989 S.C. 1519).
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohan Lal Ganga Ram Gehani v. State of Maharastra A.I.R. 1982 S.C. 839).
44. It was further held in the said decisions that the dying declaration is the only piece of untested evidence and must like any other evidence satisfies the court that what is stated therein is unalloyed, truth and that it is absolutely safe to act upon. If alter careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri v. State of U.P. 1992 (2) JT SC 417, Goverdhan Raoji Ghyare v. State of Maharastra 1993 (5) JT SC 87, Meesala Ramakrishnan v. State of Andhra Pradesh 1994 (3) JT SC 232 and State of Rajasthan v. Kishore 1996 (2) JT S.C. 595).
45. It was held by a Constitution Bench of the Apex Court in Laxman v. State of Maharastra 2002 (6) SCC 710 that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to state of mind of declarant. Further if the person recording of dying declaration is satisfied that the declarant is in a fit mental condition to make a dying declaration then such declaration will not be invalid solely on the ground that it is not certified by the doctor as to the condition of the declarant to make the dying declaration. (See Ram Bai v. State of Chhatisgarh 2002 (8) S.C.C. 83).
46. In Ravi Chandra and Ors. v. State of Punjab (1998) 9 SCC 303 which was approved by the Constitution Bench of Apex Court in Laxman's case (supra), the Apex Court held that for not examining the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The court observed that the Executive Magistrate is a disinterested witness and is a responsible officer as long as there was no material on record to suspect that he had any animus against the accused or was in any way interested in fabricating the dying declaration, no question arises to checking the genuineness of the dying declaration recorded by the Executive Magistrate.
47. Relying on the above decision the Apex Court in Sohan Lal alias Sohan Singh and Ors. v. State of Punjab 2003 A.I.R. SCW 5235 held as below:-
"In the face of this clear ennunciation of law we are afraid that none of the above arguments urged by the learned counsel can be accepted. Upon careful assessment of the evidence tendered by PW6 Lakhbir Singh Naib Tehsildar, we find no circumstance brought on record to suspect his bona fides; nothing has been elicited to show that he was interested in fabricating a case against the accused or that he had any motive to make out a false case against the accused. Hence we are unable to accept the contention of the learned counsel for the accused that it is unsafe to convict the accused on the dying declarations."
48. In the decision of State v. Laxman Kumar 1986 Cr.L.J. 155 relied on by the learned counsel for the appellant the dying declaration of burnt bride was recorded not by a Magistrate nor by a doctor but by the investigating officer without explaining the non availability of the Magistrate and the doctor. It was not signed by the deponent although literate and not proved to be incapacitated to sign by the burn injuries. The time of the statement was also not indicated in the document. At the time of declaration was recorded, none of her relations were present. The fitness of the deponent to make a declaration was also doubtful. The dying declaration was not recorded in the form of question and answers. In these circumstances it was held that the declaration was not acceptable.
49. In the other decision the State of U.P. v. Shishupal Singh 1994 Cr.L.J. 617, on which learned counsel for appellant placed reliance, the only piece of evidence on the basis of which the prosecution had attempted to establish its case was the alleged dying declaration given by the deceased before PW3, a Judicial Magistrate in the presence of the Medical Officer. The trial court convicted the respondent only on the basis of dying declaration but the High Court for the reasons assigned in its judgment was not inclined to place reliance on the dying declaration and consequently acquitted the respondent disbelieving the dying declaration on entertaining suspicion with regard to the identity of the respondent as assailant. The dying declaration did not contain the signature of the deponent. The prosecution had not come forward with any explanation that the deceased was not in a position to put his signature. Added to that neither the time of regarding of statement nor the date was mentioned in the dying declaration. In view of above facts and circumstances the Apex Court was of the view that the dying declaration was impregnant with a number of suspicious circumstances which created a doubt in the mind of the Court about the genuineness of the said document.
50. From the aforesaid decision it clear that the signature of the deponent on dying declaration is not a rule of law but a rule of prudence. In the decisions relied on by the learned counsel for the appellant the dying declaration was not relied on for various other infirmities and not only for absence of signature of declarant. The rule of accepting the dying declaration is that the court must be satisfied that the deceased was in a fit state of mind and had clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary and undoubtful it can base its conviction without any further corroboration. The rule of requisite corroboration is merely a rule of prudence. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or product of imagination. A dying declaration made verbally if satisfies the test of acceptability can also be relied on.
51. In the instant case the dying declaration was recorded by Sri Brij Mohan Mittal (PW4), the then Tehsildar Mainpuri. Before recording dying declaration a certificate of Dr. Pradeep Kumar (PW7) that the declarant was in a fit mental condition to give statement was also obtained. Dr. Pradeep Kumar (PW7) has also proved the above certificate.
52. Much emphasis was laid on the bed head ticket Ext. Ka-22 and it was contended by the learned counsel for the appellant that it is mentioned in the bed head ticket that the general condition of the patient (declarant) was very low, and was unconscious at the time of admission in the hospital. Dr. Pradeep Kumar (PW7), who made the above entries in the bed head ticket stated that he had written word 'conscious' in the bed head ticket and word 'un' before conscious was made subsequently in some other ink and it was not written by him. Perusal of bed head ticket shows that the word 'un' before conscious appears to have been subsequently inserted. This question was also considered by the trial court, which after giving sufficient reasons held the word 'un' before conscious was interpolated subsequently as the bed head ticket was summoned in the court for disposal of bail application. Dr. Pradeep Kumar (PW7) was a responsible government servant and was disinterested person. There is nothing on record to show that he was in any way interested in fabricating a false document against the appellant with whom he had no animus or any interest with the deceased or his family members.
53. Moreover, Dhirendra Pal Singh deceased was admitted in the hospital at about 7-30 p.m. and his dying declaration was recorded at 7.50 p.m. On the admission in the hospital, he must have been given some first aid and there is specific evidence of Dr. Pradeep Kumar (PW7) as well as Magistrate Brij Mohan Mittal (PW4) that at the time of recording dying declaration the patient was in a fit mental condition. In view of above direct evidence of two responsible officers it can not be presumed that the declarant was unconscious at the time of recording of dying declaration.
54. It was further contended by the learned counsel for the appellant that according to bed head ticket pathidine intravenous injection was prescribed and in case injection of path dine was administered to the patient he could not be in a position to give statement due to sedation. But it is not clear from the bed head ticket or from the evidence of Dr. Pradeep Kumar (PW7) who had prescribed the injection of pathidine, whether pathidine injection was administered and if so at what time. No question in this regard was put to Dr. Pradeep Kumar (PW7) as to whether pathidine injection was administered to the patient and if so at what time and of what dose. In Sohan Lal v. State of Punjab 2003 A.I.R. SCW 5235 a contention was raised that bed head ticket showed that the last injection of pathidine and other sedative drugs were given at 7.20 p.m. on 1.4.1996. On 2.4.1996 no pathidine injection was given in the morning. It was also found that on the contrary there was an endorsement in the treatment sheet stating "sedation dose of evening withheld. Patient declared fit for statement and the same given in the presence of Magistrate". It was contended that this entry has not been proved by any witness. Held that this argument is without substance. If the accused wanted to rely on this entry to impeach the trustworthy of exhibit PN (dying declaration), they were free to examine any witness. Whether this entry held proved or not, it does not detract from the creditworthiness of the evidence of Lakhbir Singh (PW6) (Naib Tehsildar), who recorded the dying declaration. Accordingly the above contention was not accepted. In the instant case no witness has been examined to prove that path dine injection was given to the patient just prior to recording of his statement. In these circumstances we find no ground to disbelieve the evidence of Dr. Pradeep Kumar (PW7) and Brij Mohan Mittal (PW4) that the declarant at the time of recording of dying declaration was in a fit mental condition to give the statement.
55. Sri Brij Mohan Mittal (PW4) has also offered explanation for not obtaining the signatures of declarant that syringe was inserted in the elbow of patient for administering glucose and it was dangerous for his life to remove syringe or move his hands.
56. Regarding place of occurrence given by the deceased in his dying declaration we have already held that there is no infirmity in the place of occurrence mentioned in the dying declaration and stated by ocular witnesses.
57. On careful assessment of evidence Shri Brij Mohan Mittal (PW4) we find that no circumstance was brought on record to suspect his bonafides and nothing has been elicited to show that he was in any way interested in fabricating a case against the appellant or he had any motive to make out a false case against the accused.
58. There is also nothing on record to show that the dying declaration was result of tutoring or prompting or it was result of imagination. At the time of occurrence there was sufficient light and appellant was known to deceased from before and therefore he was in a position to recognize assailant. The dying declaration is also in conformity with the prosecution case. Hence we are not inclined to accept the contention of the learned counsel for the appellant that the dying declaration recorded by the Magistrate can not be accepted.
59. The second dying declaration relied on by the prosecution was recorded by the Investigating Officer during investigation, which has been proved by Sri Tilak Ram Verma (PW8) as Ext. Ka-24. Learned counsel for the appellant contended that the above statement of deceased was recorded without complying the provisions of Police Regulations and the I.O. has also not stated that at the time of recording the statement the declarant was in a fit mental condition. He further pointed that the dying declaration of the deceased was already recorded and therefore, there was no occasion for the Investigating Officer to record his statement again. The I.O. has nowhere stated that before recording statement of the deceased he was satisfied that the deceased was in a fit mental state at that time. Moreover, the time of recording the above statement is not mentioned in Ext. Ka-24 and for these reasons we are not inclined to place reliance on the second dying declaration Ext. Ka-24
60. Even if, we keep aside the dying declaration Ext. Ka-5 for the sake of argument there is cogent, clear and trustworthy evidence of two eye witnesses Smt. Suman Chauhan (PW1), Arvind (PW2), which is supported by medical evidence, prompt lodging of F.I.R. and other circumstances of the case and, therefore, the above oral evidence of ocular witnesses established the guilt of the appellant.
61. In view of our above discussions and observations we find that the prosecution has successfully proved the guilt of the appellant and the trial court rightly convicted and sentenced him under Section 302/34 I.P.C. The appeal bears no force and is liable to be dismissed.
62. The appeal is accordingly dismissed and conviction of appellant under Section 302/34 I.P.C. and sentence of imprisonment of life thereunder recorded by the trial court are confirmed.
63. The appellant is on bail. He shall surrender before the C.J.M. Mainpuri to serve out the sentence.
64. The C.J.M. Mainpuri is also directed to procure arrest of the appellant by adopting all processes available under law to send him to jail to serve out the sentence.