Punjab-Haryana High Court
Surjit Singh vs State Of Punjab on 2 June, 2011
Crl. Appeal No. 702-DB of 2002 ::1::
In the High Court of Punjab and Haryana at Chandigarh
Crl. Appeal No. 702-DB of 2002
Date of Decision: June 02, 2011
Surjit Singh
---Appellant
versus
State of Punjab
---Respondent
Coram: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
***
Present: Mr. A.P.S. Deol, Sr.Advocate,
with Mr. Vishal Rattan Lamba, Advocate,
for the appellant
Mr. Suvir Sehgal, Addl. Advocate General, Punjab
for the State-respondent
***
1. To be referred to the Reporter or not?
2. Whether the judgment should be reported in the Digest?
Gurdev Singh, J.
The present appeal has been preferred by Surjit Singh, appellant-accused against the judgment dated 25.3.2002 passed by Sessions Judge, Faridkot, vide which he was convicted for the offence under Section 302 IPC and was sentence to undergo rigorous Crl. Appeal No. 702-DB of 2002 ::2::
imprisonment for life and to pay a fine of ` 10,000/- and in default thereof to further undergo rigorous imprisonment for a period of one year.
The prosecution story, in brief, is that Reeta Rani, deceased, was married to Surjit Singh, accused, and from that wedlock one son and daughter were born, who at the time of occurrence were six years and four years old. There used to remain constant dispute between the deceased and the accused since the day of their marriage. He used to abuse her without any cause and when she had been paying him in the same coin, he used to beat her. On 6.7.1999, he came back to the house at about 5/5.15 p.m. and drank the water. She also demanded water from him and the same was accordingly given to her. After she consumed that water, she developed headache and started vomiting. It was only thereafter, that she realised that the accused had given something to her after mixing the same with water. On account of weakness, she laid on the cot and asked the accused to get treatment for her. He did not care and remarked that he had already done what he wanted to do and that in case she was to die then she should die. On 7.7.1999, her mother Kaushalya Devi, PW-7, came to her house by chance to enquire about her health and she disclosed all those facts to her. It was only thereafter, that she was removed to Dr. Pirthipal Memorial Hospital, Kotkapura. On 8.7.1999, she was removed to Civil Hospital, Kotkapura, Dr. B.K.Kapoor, PW-1, found that it was a case of suspected poisoning and the condition of the deceased was very serious. Accordingly, he referred her to GGS Medical College, Faridkot, and sent written information, Ex. PA, to the police station. On the receipt of that information, Surjit Singh ASI, PW-10, went to the GGS Medical College, Crl. Appeal No. 702-DB of 2002 ::3::
Faridkot, and made application, Ex. PM, to the doctor for enquiring about the fitness of the deceased to make her statement. She was declared fit to make her statement by the doctor, vide his endorsement Ex. PM/1. Thereafter, the ASI recorded her statement, Ex. PI, in which she disclosed all the above stated facts. The ASI after making his endorsement upon that statement, sent the same to the police station and on the basis thereof, FIR Ex. PQ, was recorded under Section 307 IPC, against the accused. He recorded the statements of the witnesses under Section 161 Cr.P.C. The deceased died at 6.50 p.m. and written information, Ex. PN, to that effect was sent to the police station. The ASI was still in the hospital when that information was conveyed to him. He sent his ruqa, Ex. PK, to the police station and on the basis thereof, a report was recorded in the DDR at Sr.No. 29 and the offence was converted from 307 IPC to 302 IPC. Jagjit Singh, Inspector SHO,PW-4, came to the Medical College and took investigation from ASI. He prepared the inquest report, Ex. PO, in respect of the dead body of the deceased and sent the same for post mortem examination. The autopsy on the dead body was performed by Dr. K.K.Aggarwal, PW-8, who deferred the opinion regarding the cause of death till the receipt of the report of the Chemical Examiner, to whom the viscera of the dead body was sent. After the post mortem examination, the wearing apparels found on the dead body were produced before the SHO, who converted those into a parcel and sealed the same with his seal "JSB" and on coming back to the police station deposited the same with the MHC. The Chemical Examiner, after examination, detected aluminium phosphide pesticide in the viscera of the deceased and gave his report Ex.
Crl. Appeal No. 702-DB of 2002 ::4::
PH, to that effect. After the receipt of that report, it was opined by Dr. K.K.Aggarwal, vide his report, Ex. PH/1, that the cause of death of the deceased was aluminium phosphide pesticide poison, which was ante mortem and was sufficient to cause death in the ordinary course of nature. On 11.7.1999, the SHO went to the place of occurrence and after inspecting the same, prepared the rough site plan, Ex. PAA, with correct marginal notes. The map on scale, Ex, PE, of the place of occurrence was got prepared from Gurdial Singh Kataria, Draftsman, PW-5. In the course of investigation, the accused was arrested and after completion thereof, challan was put in before the Chief Judicial Magistrate, who committed the same to the Court of Session on the ground that offence under Section 302 IPC was exclusively triable by the Court of Session.
The mandatory provisions of Section 207 Cr.P.C. were complied with by supplying the copies of the documents sent along with the police report and relied upon by the prosecution, to the accused. From the perusal of those documents and after hearing Public Prosecutor for the State and the accused, in person, the learned Sessions Judge, found sufficient grounds for presuming that the accused committed offence punishable under Section 302 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial.
To prove the guilt of the accused, prosecution examined Dr. B.K.Kapoor,PW-1, Raj Rani, PW-2, Hardev Singh, constable, PW-3, Jagjit Singh, constable, PW-4, Gurdial Singh Kataria, Deaftsman, PW-5, Jagdish Kumar, PW-6, Kaushalya Rani, PW-7, Dr. K.K.,Aggarwal, PW- 8, Harinder Singh, ASI, PW-9, Surjit Singh, ASI, PW-10, Amarjit Singh, Crl. Appeal No. 702-DB of 2002 ::5::
HC, PW-11, Gurdarshan Singh, PW-12, Dr. Manvir Gupta, PW-13 and Jagjit Singh, Inspector, PW-14.
After the close of the prosecution evidence, the accused was examined by the learned trial court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded that he had good relations with his wife-deceased and they had been living peacefully in their house at Kotkapura. Thana Singh, husband of the sister of her mother, had been instigating her as he was not having good relations with him. He asked that Thana Singh not to visit their house, upon which the deceased replied that he was her uncle and would continue to visit their house. When he made it clear that he would not allow Thana Singh to come to their house, she took the poisonous substance herself in anger or accidentally, as she was of extremely sensitive nature. The next morning, he noticed that her condition was not good and took her to Dr. Pirthipal Memorial Hospital, Kotkapura, for her treatment. Her condition improved and she disclosed to the doctor that she took the poisonous substance at her own. The doctor informed the police, which came to that place and recorded her statement, in which she reiterated the same stand taken by her before the doctor. He called her mother and brother to that place and Thana Singh also came with them. All of them started quarreling with him and took the deceased to Civil Hospital, Kotkapura and then to GGS Medical College and Hospital, Faridkot, without his consent. Thereafter, all of them in connivance with Surjit Crl. Appeal No. 702-DB of 2002 ::6::
Singh, ASI, concocted a false case and fabricated the statement of the deceased to falsely implicated him. The accused was called upon to enter on his defence but he did not produce any evidence in his defence.
We have heard learned counsel for both the sides. It was submitted by learned senior counsel for the accused that conviction of the accused could not have been recorded on the basis of the dying declaration which was recorded by the Investigating Officer. As per the Rules contained in Chapter 13-A of the Rules and Orders of Punjab and Haryana High Court, Volume-III, the same was required to be recorded by a Judicial Magistrate. The prosecution failed to examine the doctor for proving that throughout the recording of that dying declaration, the deceased was in fit mental condition. Even the Investigating Officer has not said that throughout the recording of that statement, she was conscious and was in fit mental condition, Therefore, the trial court committed an illegality while recording the conviction of the accused on the basis of that dying declaration. No doubt, the prosecution also proved on record the oral dying declaration, alleged to have been made by the deceased before her mother, Kaushalya Rani, PW-7 , but she has not given the exact words as used by the deceased and as such that oral dying declaration is not admissible. He further submitted that from the statement of doctor Manvir Gupta, PW-13, it stands proved that the deceased herself had taken aluminium phosphide tablets, after having a fight with the accused. It also stands proved from the evidence produced by the prosecution that at the time, the dying declaration stated to have been recorded by the Investigating Officer, the deceased was not in a fit Crl. Appeal No. 702-DB of 2002 ::7::
condition to make the same as she had very feeble pulse and such a person cannot be said to have suffered such a statement. He also tried to contend that the celphos tablets emit very pungent smell and such a substance could not have been voluntarily consumed by the deceased after having been offered by the accused. That also makes the alleged dying declaration to be doubtful and unworthy of belief. He supported his arguments by the following judgments:-
(1)Jaipal v. State of Haryana (2003) 1 Supreme Court Cases 169 (2)Kanchy Komuramma v. State of A.P. 1995 Supp (4) SCC 118 (3)State of Punjab v. Sita Devi 1996(3) RCR (Criminal) 320 On the other hand, it was submitted by learned State counsel that there is no requirement of law that the dying declaration, before same can be relied upon, must be recorded by a Judicial Magistrate. It has been proved by the prosecution that the Investigating Officer made efforts to get the statement of the deceased recorded from the Executive Magistrate/Judicial Magistrate and when he found that no such Magistrate was available, he himself proceeded to record the same after obtaining the opinion of the doctor regarding the fitness of the deceased to make the statement. No doubt, the doctor has not been examined for proving that opinion but the endorsement of that doctor was proved by the Investigating Officer and the same was never challenged by the accused.
The oral dying declaration made by the deceased before her mother is also admissible in evidence and that corroborates the subsequent dying declaration made by her before the Investigating Officer. Dr. Manvir Gupta, PW-13, never reduced into writing the alleged statement of the Crl. Appeal No. 702-DB of 2002 ::8::
deceased made before him and the records proved by that witness are totally silent about the making of such a statement. Therefore, no reliance can be placed on that oral statement, alleged to have been made by the deceased. It stands proved from the prosecution evidence that the deceased while in fit state of mind voluntarily made the dying declaration, Ex.PI, before the Investigating Officer. That dying declaration inspires full confidence, as the deceased who was just at the verge of death, would have stated the truth and only the truth. A person under eminent danger of death will not go to his Lord by a lie on the lips. The trial court did not commit any illegality while recording the conviction of the accused on the basis of that dying declaration, which stands corroborated by the other evidence produced on the record. He supported his submissions by the following judgments:-
(1)Kulwant Singh and others vs. State of Punjab (2004) 9 Supreme Court Cases 257 (2)Vidhya Devi and another vs. State of Haryana (2004) 9 Supreme Court Cases 476 (3)Dayal Singh vs. State of Maharashtra (2007) 12 Supreme Court Cases 452 (4)Sham Shankar Kankaria vs. State of Maharashtra (2006) 13 Supreme Court Cases 165 (5)Darshna Devi v. State of Punjab 1995(3) RCR(Criminal) 646 Can it be said that only a dying declaration made before the Judicial Magistrate is admissible in evidence and not a dying declaration made before the police official/ Investigating Officer? As per Rule 2 of Crl. Appeal No. 702-DB of 2002 ::9::
Chapter 13-A of the High Court Rules and Orders, Volume-III, where a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of the alleged crime, is in danger of dying before the enquiry proceedings or the trial of the case commences, his statement, if possible, be got recorded by a Judicial Magistrate. When the police officer concerned with the investigation of the case or the Medical Officer attending upon such person apprehends that such person is in the danger of dying before the case is put in Court, he may be apply to the Chief Judicial Magistrate, and, in his absence to the senior most Judicial Magistrate present at the headquarters, for recording the dying declaration. That Rule came up for consideration in Sita Devi's case (Supra). It was observed as under:-
" We fail to understand why no attempt was made to get the statement of the deceased Krishna Devi recorded in terms of the aforesaid rule when considerable time was available between the burning incident and the date of death."
In that case, the deceased was admitted in the hospital at about 11.15 a.m. and the police officer reached the hospital and made application to the doctor for examining him at about 2-00 p.m. Before attempts were made by the police to record the statement of the deceased, the Executive Magistrate on duty, had already recorded his dying declaration. It was in the light of those facts that the above said observations were made.
It was held by Hon'ble the Supreme Court in Kulwant Singh's case (supra) that it is not essential that a dying declaration Crl. Appeal No. 702-DB of 2002 ::10::
should be made only before a Magistrate. Section 32 of the Evidence Act, 1872, nowhere states that the dying declaration must be recorded in the presence of the Magistrate or in other words, any statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration. That proposition of law was reiterated in Dayal Singh's case (supra) by the Apex Court. Therefore, it cannot be laid down as a rule of law that only the dying declaration made before the Magistrate or the Judicial Magistrate is admissible in evidence. The above said rule does not lay down mandatory provision of law and is only directory in nature.
It depends upon the facts and circumstances of each case as to what is the effect of non-compliance of that rule.
It is now well settled that even a dying declaration recorded by a police official is admissible in evidence. In Vidhya Devi's case (Supra) the statement of the deceased was recorded by a police officer while in fit state of mind and the same was signed by the deceased. It was held that the challenge made to such a statement was not sustainable. In Dayal Singh's case (supra), the statement of the deceased recorded by a Head Constable was not discarded merely on the ground that the same was recorded by such a police official. In State of Madhya Pradesh vs. Vishweshsar Kol 2011 (2) RCR(Crl.) 256, the trial court observed that dying declaration to be more reliable and plausible ought to be recorded by a Magistrate. It was held by the Hon'ble Apex Court that if the circumstances did not make that possible and a dying declaration was recorded by a police officer and was found to be credible, there was no law or practice that it could not be relied upon. Therefore, the dying Crl. Appeal No. 702-DB of 2002 ::11::
declaration, Ex. PI, being relied upon by the prosecution, cannot be discarded merely on the ground that the same was recorded by the Investigating Officer and no attempt was made to get the statement of the deceased recorded from some Magistrate or Judicial Magistrate. However, the reliability and credibility of the same is to be assessed by this Court.
It was stated by Surjit Singh, ASI. PW-10, that on 8.7.1999, on the receipt of the medical ruqa, Ex. PA, he went to the GGS Medical College and Hospital, Faridkot, and made application, Ex. PM, for enquiring about the fitness of Reeta Rani to make her statement. Dr. Sudhir Sharma declared her fit to make her statement by making endorsement, Ex. PM/1. He searched for SDM, Executive Magistrate and DTO for recording the dying declaration of Reeta Rani, but they were not found present at Faridkot. Therefore, he recorded the statement of Reeta Rani, which was read over to her and she put her signatures after admitting the same to be correct, which was attested by him. The doctor remained present during the recording of that statement and throughout she remained fit to make that statement.
It is well established proposition of law that before reliance can be placed upon the statement of the deceased, as dying declaration, it must be convincingly proved on the record that she was in fit mental condition and conscious while making that statement. It was held by Hon'ble the Supreme Court in Kanchy Komuramma's case (supra) as under:-
"The failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental Crl. Appeal No. 702-DB of 2002 ::12::
condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the court."
It was also held as under:-
"There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law."
` Admittedly, in the present case, the doctor, who opined about the fitness of the deceased to make her statement was not examined. It was admitted by Surjit Singh ASI, PW-10, during his cross examination that the doctor, who was present during the recording of the statement of the deceased, refused to give certificate regarding the fitness, though he had asked him to give such an opinion. The doctor had already declared the deceased fit to make her statement by making endorsement, Ex. PM/1. That endorsement was duly proved by the ASI and his statement to that effect was never challenged during his cross examination. The non-
Crl. Appeal No. 702-DB of 2002 ::13::
challenge by the accused amounts to admitting of that part of the statement to be correct. In Kanchi Komuramma's case (supra), no witness was examined to prove the certificate of the doctor, but in the present case that certificate was duly proved by this ASI and there is no challenge to the same. When he exhibited that certificate, the same was never objected to by the accused. It is pertinent to note that ASI, specifically stated that throughout the recording of the statement of the deceased, she remained fit to make her statement and that the contents of that statement were read over to her. She admitted those to be correct and appended her signatures thereupon. Even that part of his statement was not challenged during the cross examination. This statement made by the ASI, firmly establishes that the deceased was in a fit state of mind to make her statement and throughout the recording of that statement, was in fit mental condition. In these circumstances, the non-obtaining of the certificate of the doctor or his refusal to give such certificate in no way detracts the reliability and credibility of the statement of the deceased. Even from the records of the hospital, it cannot be concluded that she was not in a fit mental condition to make that statement.
The prosecution proved on record that the viscera of the dead body of the deceased was sent to the Chemical Examiner, who reported that Aluminium phosphide was detected therein. After the receipt of that report, Ex. PH, it was opined by Dr. A.K.Aggarwal, PW-8, who conducted post mortem on the dead body of the deceased that in his opinion the cause of death was aluminum phosphide poison. It is in the statement of the deceased, Ex. PI, that when her husband came to the Crl. Appeal No. 702-DB of 2002 ::14::
house, she asked him to bring drinking water for her and after she took the water, so offered by the accused, she developed headache and started vomiting and, thereafter, came to know that she had been administered something in that water. In Jaipal's case (supra), so cited by the learned defence counsel, the Hon'ble Supreme Court took into consideration the toxicology regarding Aluminium phosphide as explained in Modi's Medical Jurisprudence and Toxicology. The relevant portion thereof is reproduced as under:-
"Aluminium phosphide is available in the form of chalky- white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphine gas (PH3 ) which is the active ingredient of ALP. This gas is highly toxic and effectively kills all insects and thus preserves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes phosphine gas dissipates and spreads into the whole body. The gas is highly toxic and damages almost every organ but maximal damage is caused to heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients come with fast, thready or impalpable arterial pulses, unrecordable or low blood pressure and icy-cold skin. Somehow, these patients remain conscious till the end and continue to pass urine despite unrecordable blood pressure.
Crl. Appeal No. 702-DB of 2002 ::15::
Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul(garlic- like) from their breath and vomitus. Many of them will die within a few hours. Those who survive for some time will show elevated jugular venous pressure, may develop tender hepatomegaly and still later adult respiratory distress syndrome(ARDS), renal shutdown and in a very few cases, toxic hepatic jaundice. Further, ALP on account of its very pungent smell (which can drive out all inmates from the house if left open) can not be taken accidentally.
In that case, the death of the deceased has taken place on account of aluminium phosphide (celphos). In view of the nature of that poison and on the basis of contradictory evidence produced by the prosecution, it was held by Hon'ble the Supreme Court that it cannot be concluded positively that aluminium phosphide was administered to the deceased. If only the tablet given by the accused to the deceased was celphos, it is not likely that the deceased would have consumed it inasmuch as the pungent smell of the celphos would have alerted the deceased and certainly she would not have consumed that tablet.
In the present case, it is not the prosecution case that it was the tablet of celphos itself which was so given to the deceased. It was the poison mixed in the water, which was given to the deceased by the accused after she asked for water. After drinking that water, the deceased survived for two days and that was possible only if the quantity of the poison in the water was small. That might not have given such a smell, Crl. Appeal No. 702-DB of 2002 ::16::
so as to caution the deceased to entertain a doubt that something had been mixed in the water. The argument so raised by the learned defence counsel for the accused has not appealed us.
The prosecution has also proved oral dying declaration made by the deceased before her mother Kaushlaya Rani, PW-7. She stated that she had gone to her daughter at about 10-00 a.m. and at that time she was lying on the bed in precarious condition. She told that her husband has given something mixed with the water and on taking the same she started vomiting and that she had not been got medically examined by her husband. It was only thereafter that she took her to Dr. Pirthipal Memorial Hospital, Kotkapura, There is no rule of law that oral dying declaration is not admissible in evidence. It was held by Hon'ble the Supreme Court in Darshna Devi's case (supra) that the conviction can be based on oral dying declaration. The only requirement of law is that the exact words of that oral dying declaration must be proved by the witnesses.
In the present case, Kaushalaya Rani, PW-7, has in fact used the actual words used by the deceased. That oral dying declaration is admissible in evidence and the same further corroborates the other dying declaration, Ex. PI, which was so made by the deceased before the Investigating Officer.
It was held in Sham Shankar Kankarya's case (supra) as under:-
"Though a dying declaration is entitled to great weight. It is worthwhile to note that the accused has no power of cross-
Crl. Appeal No. 702-DB of 2002 ::17::
examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (1992) 2SCC 474
(i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P. (1976)3SCC
104)
(ii)If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Crl. Appeal No. 702-DB of 2002 ::18::
Yadav (1985) 1 SCC552 and Ramawati Devi v. State of Bihar ( 1983 )1 SCC 211)
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the 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 the declaration (K. Ramachandra Reddy v.
Public Prosecutor (1976) 3SCC 618)
(iv)Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. (1974) 4SCC
264)
(v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected (Kake Singh v. State of M.P. 1981 Supp SCC 25
(vi)A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath v. State U.P. (1981) 2 SCC 654)
(vii)Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.( State of Maharashtra v. Krishnamurti Laxmipati Naidu 1980 Supp SCC 455)
(viii) Equally, merely because it is a brief Crl. Appeal No. 702-DB of 2002 ::19::
statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth (Surajdeo Ojha v. State of Bihar 1980 supp SCC769)
(ix)Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail (Nanhau Ram v.
State of M.P. 1988 Supp SCC 152)
(x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of U.P. v. Madan Mohan (1989) 3 SCC 390)
(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. (Mohanlal Gangaram Gehani v. State of Maharashtra(1982)1SCC 700)."
While adjudging the acceptability of the dying declaration in the light of the above said principles, the submissions made by learned defence counsel and noted above are to be duly taken into consideration. The learned defence counsel heavily relied upon the statement of Dr. Manvir Gupta, PW-13, in whose nursing home the deceased was admitted Crl. Appeal No. 702-DB of 2002 ::20::
on 7.7.1999. He stated that at the time of the admission of the deceased, he asked from her as to what had happened and she told that she got vomiting since yesterday. When he persisted, she told him that she had a fight with her husband a night before and took aluminium phosphide tablets herself. He also proved on record the writings, Ex. PX, PY and PZ, which relate to the deceased. After having gone through those documents, we have not come across any such statement of the deceased suffered by her before this doctor. Had such a statement been made, this witness must have recorded that fact in those records. Rather it becomes clear from the slip Ex. PY, that Jagdish Kumar, brother of the deceased and one Thana Singh took away the deceased from that nursing home at their own risk. The intention of the deceased was to keep the deceased in that private nursing home so that it may not become a medico-legal case. The police came into action only when she was removed to Civil Hospital from where she was referred to Medical College, Faridkot, and written information was sent by the doctor. In these circumstances, we are not inclined to place any reliance on the statement allegedly made by the deceased before Dr. Manvir Gupta, PW-13.
The dying declaration so made by the deceased, is corroborated by other evidence produced by the prosecution. It was stated by Jagdish Kumar, PW-6 and Kaushalya Devi, PW-7, that the accused used to beat and maltreat the deceased. That shows the motive on the part of the accused to commit the present crime. On the basis of the cogent and convincing evidence produced by the prosecution, correct findings were recorded by the trial court for convicting him for the offence under Crl. Appeal No. 702-DB of 2002 ::21::
Section 302 IPC.
We do not find any ground to set aside the well reasoned conviction and sentence so recorded by the trial court. There is no merit in this appeal and the same is hereby dismissed.
This order be certified to the trial court for taking appropriate action.
(M.M.KUMAR) (GURDEV SINGH)
JUDGE JUDGE
June , 2011
PARAMJIT