Punjab-Haryana High Court
Dara Darji @ Shamsher Singh vs State Of Punjab on 16 May, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
Crl. Appeal No. 447 DB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 447 DB of 2002
Date of decision: May 16, 2012
Dara Darji @ Shamsher Singh
...Appellant
Versus
State of Punjab
...Respondent
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. BS Jaswal, Advocate,
for the appellant.
Mr. Pavit Mattewal, Additional Advocate General,
Punjab.
1. To be referred to the Reporter or not ?
2. Whether the judgment should be reported in the Digest ?
A.N. JINDAL, J.
Uxoricide by Dara Darji @ Shamsher Singh within 1-1/2 years of her marriage invited the prosecution of the accused/appellant Dara Darji as well as his mother Amarjit Kaur (since acquitted). On trial, Additional Sessions Judge, Amritsar, vide judgment dated 6.6.2002 convicted Dara Darji to undergo rigorous imprisonment for life and to pay a fine of `5,00/- under Section 302 IPC.
Poonam was married to the accused 1-1/2 years prior to the occurrence. During the said period, she had given birth to a male child, who was seven months old. Poonam in her statement Ex. PC made before Darshan Singh Mann, SP (D) (PW-2) on 6.9.2000, which was converted into dying declaration, disclosed that after 5-6 days of her marriage with the Crl. Appeal No. 447 DB of 2002 2 accused, he started giving severe beatings to her on account of which she had left her matrimonial house at Delhi and narrated about the cruelty on the part of the accused to her mother and brother. However, the accused then had come to Delhi and taken her to Amritsar.
On 6.9.2000, again the accused gave her severe beatings, whereupon Poonam expressed her anguish over the conduct of the accused and told him that in such circumstances she would prefer to go to Delhi to her parental house and he should hand over her the custody of the minor child. However, the accused declined and became arrogant, when she again raised the issue, the accused poured kerosene upon her and set her ablaze by igniting the match stick. Amarjit Kaur, mother of the accused, who was also present in the house did not try to intervene to save her, rather she instigated the accused to set her ablaze.
ASI Amarjit Singh (PW7) after recording her statement Ex.PC sent the same to the police station, on the basis of which FIR Ex. PC/3 was registered under Section 307 IPC. Then, on 7.9.2000 at 1.30 p.m. ASI Amarjit Singh on receiving a telephonic message that Poonam had succumbed to her injuries, converted the offence to Section 302 read with Section 34 IPC.
The Investigating Officer then, visited Guru Nanak Dev Hospital, Amritsar, prepared the inquest on the dead body, recorded the statements of the witnesses and despatched the same for getting autopsy done. He also visited the place of occurrence, prepared the rough site plan, took into possession one can containing a remainder kerosene and a match box, vide different memos. Accused was arrested on 10.9.2000.
On completion of the investigation, report under Section 173 Crl. Appeal No. 447 DB of 2002 3 Cr.P.C. was submitted in the court. The accused were challaned under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial.
During trial, the prosecution examined Constable Joginder Singh PW1, Darshan Singh Mann, SP (D) PW2, Shanti Devi PW3, Dr. Amarjit Singh PW4, Nishan Singh PW5, Dr. Rajan PW6, ASI Amarjit Singh PW7 and SI Harjinder Singh PW8.
C. Joginder Singh PW1 is a formal witness. Darshan Singh Mann SP (D) PW2 appeared to authenticate the recording of the statement of Poonam one day prior to her death by ASI Amarjit Singh (PW7) in his presence. He has confirmed that the efforts for getting Magistrate deputed for the purpose failed. He had accompanied ASI Amarjit Singh to the hospital where the latter had recorded the statement of Poonam, who was fit to make the statement at that time, in his presence. ASI Amarjit Singh PW7 has also made consistent statement, while deposing that whatever was stated by Poonam was recorded by him and she was quite fit to make the statement throughout. Shanti Devi PW3 is the witness to the conduct of the accused. She has also stated that Dara Darji was not behaving Poonam properly. As such, their relations were not cordial. He used to come late in the house and give severe beatings to her. 5-7 days prior to the occurrence, Poonam had come to their house and informed about the atrocities committed upon her by the accused. She has also stated that two days prior to the occurrence, Dara Darji came to their house and took Poonam back. She had counselled Dara Darji not to maltreat her, but on the next day, she was informed that the Poonam had suffered burn injuries and was lying admitted in the Guru Nanak Dev Hospital, Amritsar, in a burnt condition. Crl. Appeal No. 447 DB of 2002 4
She has also stated that the Investigating Officer had recovered one partly burnt lady suit, one slightly burnt; plastic can containing residue and one match box. All the aforesaid articles taken into possession, vide memo Ex. PD. She was cross-examined at length and was suggested that after delivery of the son by Poonam through cesarian operation, she was under constant treatment of the doctor and she had been taken to the hospital for removal of stitches. On 6.9.2000 also, he had taken Poonam to the hospital for getting her stitches checked up and on that Poonam had quarreled with the accused. She was compelling him to leave her at her parental house but Dara Darji was not agreeing and he having felt annoyed went to the street. In the meantime, Poonam committed suicide by setting herself ablaze. On hearing cries he entered the house and in a bid to extinguish the fire, he also suffered injuries. He removed Poonam to the hospital but was falsely implicated in the case.
PW4 Dr. Amarjit Singh, Junior Resident, Department of Forensic Medicine, Govt. Medical College, Amritsar, conducted the autopsy of the dead body on 8.9.2000 at 10.30 a.m. and observed as under:-
"The length of the body was 5'. It was a naked dead body of a female, moderately built, wearing white metallic karra in right forearm, white hospital bandage was found around both ankles. On removing, stitched wound was present. Fore vene-section; eyes mouth were found closed. Rigor mortis was present throughout the body cherry red discolouration, post mortem staining was present on back of the body, sparing areas of contract flattening at places. Singeing of hair were present on anterior and posterior scalp hair, eyebrows, eye-lashes. Crl. Appeal No. 447 DB of 2002 5 Superficial burns were present all over the body except top of head. Front of lower abdomen and pubic region and palmer aspect of right finger. Skin was found peeled off at places. Cherry red discolouration present at places. Marbling was present at places. Exudate was found present at places. Pleurae, both lungs were found congested. Stomach contained about 100 cc of fluid and NAD. Uterus was found empty and NAD. Burns were ante-mortem in origin."
According to PW4, the cause of death was shock as a result of burn injuries, which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time elapsed between injury and death was about 12 to 24 hours and between death and post mortem was 12 to 24 hours.
PW5 Nishan Singh is the complainant. He is brother of the deceased. He has given narration of the circumstances leading to the occurrence and involvement of the accused in the commission of crime.
PW6 Dr. Rajan, Junior Resident, Surgical Ward 6, Guru Nanak Dev Hospital, Amritsar, has stated that on the application Ex. PB moved by ASI Amarjit Singh before recording of the statement Ex. PC, he had made his endorsement Ex. PB/1 declaring Poonam fit to make statement at 10.20 p.m. During cross examination, he has deposed from the bed head ticket that patient was conscious at the time of her admission. No question was asked that the deceased was not conscious to make the statement at that time and the report was false.
PW7 ASI Amarjit Singh is the investigating officer. He has also deposed about the entire investigation conducted by him. PW8 SI Crl. Appeal No. 447 DB of 2002 6 Harjinder Singh has also partly investigated the case.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, Dara Darji @ Shamsher Singh explained as under:-
"My wife Poonam was of rigid nature, who all the times compelled me to live as Ghar Jawai (resident son-in-law) for which I never agreed. Even on the fateful day, in the morning, I took her to the hospital to get her stitches checked as she had given Caesarian birth to a child and in the evening at about 5.00 p.m. again my wife compelled me to shift from my parents house to her parental house. I took my glass of tea to the street to avoid altercation and my mother went upstairs. Suddenly, I heard hue and cry and I alongwith neighbourer Sukhwinder Singh @ Mintoo rushed to my house and found that my wife had burnt herself. She was shifted to the hospital immediately and I also tried to put off the fire resultantly my both hands were burnt. The police arrested me after the death of my wife from hospital. I am innocent."
No witness was examined in defence.
Trial resulted into acquittal of Amarjit Kaur and conviction of the accused/appellant.
Arguments Heard. Record perused.
The case pertains to the uxoricide of Poonam at the hands of the accused, who died at the latter's house within 1-1/2 years of her marriage other than in normal circumstances. She was not suffering from any ailment Crl. Appeal No. 447 DB of 2002 7 since earlier or of abnormal nature i.e. disorder or so. The accused has also not denied his presence in the house at the time of occurrence. Though there is no direct evidence to connect the accused with the crime, but the prosecution has relied upon the dying declaration Ex. PC made by the deceased before ASI Amarjit Singh in the presence of Darshan Singh Mann, SP (D) (PW-2). The burnt articles recovered from the place of occurrence, burnt clothes of the deceased, medical evidence and conduct of the accused as explained by Shanti Devi (PW-3) and Nishan Singh (PW-5), mother and brother of the deceased respectively connect the accused with the commission of crime.
The main contention as well as case set up by the accused is that it is a case of suicide and not homicidal. In order to find whether actually it was a homicidal death, we again have to look into the statement of Dr. Amarjit Singh, who conducted autopsy on her body. He has given the following symptoms from the body which are the result of burn injuries.
"Singeing of hair were present on anterior and posterior scalp hair, eyebrows, eye-lashes. Superficial burns were present all over the body except top of head. Front of lower abdomen and pubic region and palmer aspect of right finger. Skin was found peeled off at places. Cherry red discolouration present at places. Marbling was present at places. Exudate was found present at places. Pleurae, both lungs were found congested."
The burns over whole of the body and even on the hands and fingers indicate that death was homicidal and not suicidal. Had it been suicidal then her hands would have remained unaffected. Any way, this evidence of the doctor stands corroborated by the dying declaration made by Crl. Appeal No. 447 DB of 2002 8 the deceased on the same day at about 10.30 p.m. in the presence of Darshan Singh Mann, SP. Further both the witnesses have consistently disclosed about the differences between the couple and the dispute which had arisen soon before the occurrence and it has also come in evidence that the accused had brought her back just one day earlier. She appears to have been intentionally done to death otherwise she being blessed with a son would be the last woman to deprive the child of her life and affection, but it was only the accused who derived her to death.
The defence pleas of the accused are : (i) the deceased wanted him to remain as a Ghar Jawai (resident son-in-law); (ii) she was taken due care by her husband. She was got checked up from the doctor regularly for her stitches; (iii) He had taken her to the hospital for removal of her stitches;
(iv) he had tried his best to extinguish the fire and in that process, he himself also suffered injuries; (v) He in effort to save her immediately shifted her to the hospital.
All the aforesaid points of explanation stand to fall for the reason that no witness has been examined in order to establish that the deceased was under the constant check up of the doctor at Civil Hospital. No private or government doctor from whom she was getting treatment has been examined. The accused has not even examined his mother to prove that the deceased was under treatment of the doctor. There is no denying a fact that she had given birth to a son who was seven months old at that time, as such, the question of removal of stitches after seven months does not arise. The stitches of such surgery did not take more than 10 days at the most and if some complication arises not a month or so. The plea that stitches were removed after seven months by the doctor does not appeal to Crl. Appeal No. 447 DB of 2002 9 reason and is a contradictory statement in itself.
Secondly, the plea set up by the accused that he also tried to extinguish the fire is also of no consequence. The accused did not examine any doctor to prove the MLR Ex. DC in order to prove his injuries. The said medicolegal report falsifies the stand of the accused, because as per MLR, the accused was admitted in the hospital on 15.9.2000 at 12 noon, whereas the incident had taken place on 6.9.2000. Had he suffered the injuries over his body and hands in a bid to extinguish the fire, then he must have got himself admitted on the same day alongwith the deceased. This also falsifies his version that he had accompanied the deceased to the hospital. Had he suffered the injuries during the incident and accompanied the deceased, then he would have also been admitted by the doctor in the hospital alongwith the deceased.
While going to the worst, if we examine the injuries as recorded in the medicolegal report Ex.DC, these also enable us to bring the cat out of the bag and reach the conclusion that the plea set up by the accused is false. According to this MLR, there are injuries on the left hand; and on the lower part of front of left forearm but the accused has failed to connect these injuries with the date of occurrence. The accused has not led any other evidence in order to establish if he had suffered these superficial injuries during the same incident. Had the accused actually made efforts to extinguish the fire, then he must have suffered burn injuries upon his both hands and other part of his body, but this superficial injuries on the left hand and forearm create a doubt on the conduct of the accused. Thirdly, when the doctor has further recorded that there was no fresh external injury on the body of Shamsher Singh, as such, it is difficult to hold that Shamsher had Crl. Appeal No. 447 DB of 2002 10 made any efforts in extinguishing the fire attracted by the deceased, which goes a long way to highlight his non participation in the commission of crime and his conduct that he did not even try to extinguish the fire but fled away after committing the crime and was arrested on 10.9.2000.
The learned counsel for the appellant has further urged that the dying declaration was not the result of free will of the deceased and this statement made before the police officer could not be treated as dying declaration. Further statement was recorded on 21.9.2000 whereas she died after 7 days i.e. 28.9.2000, therefore, such statement recorded under Section 154 Cr.P.C. cannot be treated as dying declaration. It was also contended that such dying declaration without any further corroboration is a weak type of evidence and no conviction can be based on such dying declaration alone.
Having heard the marathon arguments, challenging the authencity of the dying declaration, we observe that no doubt in the earlier years, the evidence relating to dying declaration could not alone be made the basis of conviction. This view was taken in Ramnath Madho Prasad V. State of Madhya Pradesh, AIR 1953 SC 420 while observing as under:-
"It is settled law that it is not safe to convict an accused merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a statement of confusion and might be well drawing upon his imagination while he was making the declaration. It is in this light that the Crl. Appeal No. 447 DB of 2002 11 different dying declaration made by the deceased and sought to be proved in the case have to be considered."
However, the aforesaid observations being in the nature of obiter dicta were over ruled by the Apex Court in the subsequent decision in Khushal Rao v. State of Bombay, 1958 SCR 552 and the said view was approved in the case of Kusa V. State of Orrissa, AIR 1980 SC 559 paga 562, para 9. It was observed in the case of State of Assam V. Mafizuddin Ahmed, 1983 (2) SCC 14 at page 19, para 10, as under:-
"Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner."
But the satisfaction of the court was given paramount consideration for placing reliance over this piece of evidence. The court before placing reliance over the dying declaration will have to satisfy itself that : (i) it was free from any fear or undue influence; (ii) it was stated by a person on the verge of death; and (iii) it was made by his free will. Similar observations were made by the Apex court in Jayaraj v. State of Tamil Nadu, AIR 1976 SC 1519 at page 1522 para 16, which read as under:-
"When the deponent (while making his dying declaration) was in severe bodily pain (because of stab injuries in the abdomen) and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who had stabbed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious Crl. Appeal No. 447 DB of 2002 12 circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the ocular account given by the eye-witnesses."
As a matter of fact, juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, as it is believed that the person who is at the verge of death and having lost his every hope of survival in the world would not tell lie and falsehood would not come to his tongue to accuse him in the next world. Therefore, emphasis has been given to believe his testimony provided the same is free from any such tampering by way of prompting, tutoring since he would be no more in the world for cross-examination. Therefore, the law in its wisdom made such statement admissible in evidence by dispensing the statement from cross-examination. While discussing the aforesaid aspect of the case and theme behind placing reliance over the dying declaration, the Apex Court in Laxman v. State of Maharashtra, 2002 (4) RCR (Criminal) 149 observed as under:-
"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 Crl. Appeal No. 447 DB of 2002 13 which a man is on death bed 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 court 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 to always 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 whether the deceased was in a fit mental condition to make the dying declaration look 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 in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of Crl. Appeal No. 447 DB of 2002 14 a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
The law regarding the dying declaration and the value which is to be attached to it has been examined in considerable detail in State of Karnataka v. Shariff 2003 (1) RCR (Criminal) 667: (2003) 2 SCC 473 wherein the Apex Court held as under:-
"18. The earliest case in which the law on the point of dying declaration was considered in detail by this Court is Khushal Rao v. State of Bombay AIR 1958 SC 22. The Court ruled that it cannot be laid down as an absolute rule of law that a Crl. Appeal No. 447 DB of 2002 15 dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. It has been further held that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross- examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
19. In State of Uttar Pradesh v. Ram Sagar Yadav, 1985 (1) RCR (Criminal) 600: (1985) 1 SCC 552, the Court speaking through Chandrachud, C.J. held as under
"It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao v. State of Bombay AIR 1958 SC 22; Harbans Singh v. State of Punjab AIR 1962 SC 439; Gopal Singh v. State of M.P. 1972(3) SCC 268. There Crl. Appeal No. 447 DB of 2002 16 is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration....."
20. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor (1976) 3 SCC 618 it was held that a great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It was further held that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.
In Pothakamuri Srinivasulu v. State of AP (2002) 6 SCC 399 it has been held that if the deceased made statement to the witnesses and Crl. Appeal No. 447 DB of 2002 17 their testimony is found to be reliable the same is enough to sustain the conviction of the accused. In Mafatbhai Nagarbhai Raval v. State of Gujarat 1992 (2) RCR (Criminal) 505: (1992) 4 SCC 69 it was held that the Doctor who has examined the victim was the most competent witness to speak about her condition."
In the instant case, we are satisfied that the deceased was in a fit state of mind at the time of making the statement Ex. PC. Both the eye witnesses, namely Darshan Singh Mann, SP (PW2) as well as ASI Amarjit Singh (PW7), before whom the statement has been made, stated that she was in fit state of mind. These witnesses had no animus against the accused to falsely implicate him in the case. ASI Amarjit Singh had also sought the opinion of Dr. Rajan, Junior Resident, Surgical Ward 6, Guru Nanak Dev Hospital, Amritsar, vide his endorsement Ex. PB/1 at 10.20 p.m. ,who opined that Poonam was fit to make the statement. No question was asked to him if any of the family members of the deceased was present by the bed side when her statement was recorded. ASI Amarjit Singh (PW-7) has specifically stated that nobody except him and the SP Darshan Singh Mann (PW-2) was present in the hospital by the bed side of Poonam when her statement was recorded. He has also stated about the association of Darshan Singh Mann, SP (PW2) at the time of recording of the statement. Rather he states that dying declaration was read over to her and she had put her signatures over it, vide Ex. PC/1 and she had remained conscious throughout when her statement was recorded and was understanding each and everything. Thus, in view of the said statement made by ASI Amarjit Singh nothing remains to be argued on the issue that she was not fit to make the statement. It has been observed in the case of Laxman (supra) that Crl. Appeal No. 447 DB of 2002 18 where the eye witnesses states that the person making the statement was fit to make the statement, then medical evidence in that regard takes back seat. The testimony of ASI Amarjit Singh stands corroborated by Darshan Singh Mann, SP, who has also stated that he had made himself satisfied that Poonam was fit to make the statement of her own accord and without any pressure from any quarter. The doctor had also declared her fit to make the statement. Even otherwise there were 60% burns on the body, as such, she could not be said to be unfit to make the statement.
Now coming to other contention raised by the learned counsel for the appellant that the statement recorded by the ASI under Section 154 Cr.P.C. could not be termed as a dying declaration and that the statement recorded eight days prior to the death of the deceased cannot be termed as dying declaration.
In this regard, we may observe that since the case was not registered by that time, ASI Amarjit Singh was not the Investigating Officer at the time of recording of the statement. He had visited the hospital on receipt of ruqa from the doctor. It would also be pertinent to mention here that neither the doctor nor ASI Amarjit Singh in any way connived alligned or connected with the complainant to record such statement, which may be incriminating against the accused. He was anxious to know the cause of death from the tongue of Poonam who was just on the verge of death. ASI Amarjit Singh having failed to procure the presence of Magistrate, he called for and then after seeking the opinion of the doctor recorded the statement in the presence of Superintendent of Police. Darshan Singh, SP, therefore, there is no reason to discard such statement, which has been recorded by the Investigating Officer, after getting certification from the doctor. The Apex Crl. Appeal No. 447 DB of 2002 19 Court though did not encourage recording of the dying declarations by the police officer yet it also did not reject the same when the facts and circumstances of the case permitted. A similar question arose before their Lordships in case State of Punjab vs. Amarjit Singh, 1988 (2) RCR (Criminal) 534: AIR 1988 Supreme Court 2013, wherein it was observed as under :-
"18. It is true as this court has observed in Dalip Singh v. State of Punjab, (1979) 4 SCC 332 : (AIR 1979 SC 1173) that the practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by Magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of each case.
19. In this case, ASI belongs to the Police Station at Bhogpur. Upon intimation by wireless message that Balwinder Kaur was admitted in Ludhiana Hospital, he straightway went to that place. He met the Doctor and recorded her statement. The FIR was issued on the basis of that statement. It was then an offence under S. 307, IPC. The investigation went on accordingly at Bhogpur. The Police Station at Bhogpur is 92 kms from Ludhiana and we are told that Bhogpur is in a different district altogether. In these circumstances, we cannot find fault with the ASI for not getting the dying declaration recorded by a Magistrate."Crl. Appeal No. 447 DB of 2002 20
A similar question came up before the Apex Court for discussion in case Paras Yadav . vs. State of Bihar, 1999 (1) RCR (Crl.) 628 wherein it was observed that when the statement is recorded by the police on the scene of occurrence itself within few minutes of the occurrence, then the same could be treated as dying declaration. There was no reason to disbelieve the dying declaration when the medical evidence corroborates the prosecution version.
The contention that the dying declaration made before the Investigating Officer is not of any consequence, therefore, the same deserves to be discarded, could not be viewed with sympathy, as the same was recorded by the Investigating Officer in routine manner without wasting any time. A similar proposition arose in case Gulam Hussain vs. State of Delhi, 2000 (3) RCR (Crl.) 714 wherein it was observed that the submission has no substance because at the time of recording the statement, Balwan Singh (PW22) did not possess the capacity of an Investigating Officer as the investigation had not commenced by then. Such a statement can be treated as dying declaration which is admissible in evidence under Section 32 (1) of Evidence Act.
It may further be noticed that dying declaration finds support not only from the medical evidence but from the statement of Shanti Devi (PW-3) and the complainant Nishan Singh (PW-5). They have supported the prosecution case stating that the accused has been harassing her and treated her with cruelty. Earlier also she was given severe beatings and was turned out of the house. After she reached her parental house at Delhi, she was taken back by the accused one day prior to the occurrence. All this goes to show that though he had brought her back but his designs might be Crl. Appeal No. 447 DB of 2002 21 malafide.
We have already observed and discussed that burns were not homicidal, therefore, we have no option but to hold that it was the accused who had set her ablaze. The dying declaration does not indicate even involvement of the mother of the accused. Had there been any pinch of falsehood in the dying declaration she could have named the mother of the accused as well as other family members.
Now coming to the next question, whether the statement made before the police under Section 154 Cr.P.C. could be treated as dying declaration. It was observed by the Apex Court in Ramawati Devi versus State of Bihar 1983 AIR (SC) 164 that the dying declaration is not necessary to be recorded by a Magistrate and it having recorded by the police officer is also admissible in evidence. It was further observed in Ramawati Dvi (supra) that the evidentiary value of the dying declaration has to be assessed, while examining other facts and circumstances of a particular case. The said judgment was approved in a subsequent decision delivered in the case of Charipalli Shanbkararao versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad AIR 1995 (SC)
777. Similarly, in case of Bhagirath versus State of Haryana 1996 (4) Crimes (SC) 1, the Apex Court while observing that if the Magistrate was not available despite efforts then dying declaration recorded by the Head Constable of the Police in the presence of doctor who testified the same corroborated by the medical evidence was quite valid.
Again in Jai Prakash and others versus State of Haryana 1999 AIR (SC) 3361, the Apex Court observed as under:-
"3. It was urged by the learned counsel for the appellant that Crl. Appeal No. 447 DB of 2002 22 no reliance whatsoever should have been placed upon the said dying declaration as it was recorded on 7.10.1990 and even though Sushma (deceased) survived till 11.10.1990 no further attempt was made to get her regular dying declaration recorded by a Magistrate. In our opinion, the submission made by the learned counsel is misconceived. As Sushma was taken to the hospital with burns, the hospitals authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross- examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7.10.1990. The said statement was sent to the police station at about 1.30 p.m. and the FIR was recorded at 3.30 p.m. A copy of the said FIR was received by the Magistrate on 8.10.90 at about 10.00 a.m. Therefore, there is no scope for doubting genuineness of that statement in this case. We are emphasizing this aspect because it was also contended by the learned counsel that the dying declaration - Ex. PJ was not her statement at all. Only a vague suggestion was made to the investigating officer and to the Doctor that no statement at all was made by the deceased. This suggestion was denied by both of them. There is nothing on the basis of Crl. Appeal No. 447 DB of 2002 23 which it can be said that there is any substance in that suggestion.
4. It was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was necessary for him to keep any doctor present or obtain any endorsement from him.
5. It was next submitted that when she was taken to the hospital at 7.30 a.m she was not replying to the questions properly as deposed by the first doctor who had examined her. This submission has also no substance because thereafter she was given treatment and the evidence shows that thereafter she was in a fit condition to make a statement. It was not even suggested to the Police Officer that she was not able to speak clearly. No attempt was made in the cross-examination of the doctor to show that her condition had not improved between 7.30 a.m. and 1.30 p.m. and, therefore, this submission also deserve to be rejected."
Again in State of Rajasthan versus Waktong 2007 (3) RCR (Criminal) 330, the Apex Court held as under:-
"11. Merely because a statement is recorded by a police Crl. Appeal No. 447 DB of 2002 24 personnel and the thumb impression of the deceased was affixed it cannot straightway be rejected. (See State of Rajasthan v. Teja Ram (1999 (3) SCC 507), Rajik Ram v. Jaswant Singh Chauhan (AIR 1975 SC 667) and famous Tahsildar's case, Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012).
12. In Paras Yadav and Ors. v. State of Bihar, 1999 (1) RCR (Crl.) 627 (SC): (1999 (2) SCC 126) it was held that the statement of a deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can be taken as a dying declaration after the death of the injured if he was found to be in a fit state of health to make a statement. If the dying declaration is recorded by an investigating officer the same can be relied upon if the evidence of the prosecution witness is clearly established beyond reasonable doubt that the deceased was conscious and he was removed to the hospital and he was in a fit state of health to make the statement. In the instant case, the position appears to be different."
Similar view was taken in Dayal Singh Versus State of Maharashtra 2007 (2) RCR (Criminal) 909, State of Rajasthan Versus Champa Lal 2009 (12) SCC 571 and Atbir versus Govt. of N.C.T. of Delhi 2010 AIR (SC) 3477.
In the instant case also all efforts were made by ASI Amarjit Singh to procure the presence of the Magistrate but he failed to do so, therefore, he called Darshan Singh Mann, Superintendent of Police to attest the dying declaration. No suggestion was given to him that she was not in Crl. Appeal No. 447 DB of 2002 25 fit state of mind; he intentionally did not procure the presence of the Magistrate; the certificate issued by the doctor was false and he was otherwise connived with the complainant party. As such, we have no reason to discard the dying declaration only on the ground that it was recorded by police officer. The dying declaration recorded in this case confirms all the parameters as set out in Laxman's case (supra) and the subsequent judgments.
Consequently, the dying declaration being corroborated by the medical evidence recorded on the certification of the doctor and corroborated by the ocular version, can be said to be sufficient to record the conviction. Even otherwise we are satisfied from the evidence on record that Poonam had made the dying declaration in all her senses and disclosed the events in detail. Mere fact that she died eight days after her making the said dying declaration is hardly sufficient ground to ignore the same being dying declaration. In this regard reference can be made to Sukhdev Raj's case (supra).
No other argument has been raised.
Resultantly, finding no merit in the appeal, the same is hereby dismissed.
(HEMANT GUPTA) (A.N. JINDAL)
JUDGE JUDGE
May 16, 2012
prem/deepak