Punjab-Haryana High Court
Manoj @ Titu vs State Of Haryana on 27 August, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.210-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.210-DB of 1998
Date of decision: 27.8.2008
Manoj @ Titu
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vinod Ghai, Advocate,
for the appellant.
Mr.S.S.Randhawa, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Ten persons including appellant were sent up to face trial under Section 302, 325, 323, 148 and 149 IPC. Out of them nine were acquitted of the charge framed against them vide order dated 17.2.1998 by learned Additional Sessions Judge, Karnal as there was no incriminating material put to them under Section 313 Cr.P.C. and the appellant was convicted and sentenced under Section 302 IPC vide impugned judgment dated 2.4.1998.
Criminal Appeal No.210-DB of 1998 2
Prosecution story, in brief, is that on 6.5.1997, complainant Karam Singh (deceased) was going home after attending the date of hearing in the Court. When he reached near the Doon Public School on the Kachhawa Road on his vehicle, appellant-Manoj, accompanied by 4-5 persons armed with lathis and dangs, attacked him at about 12.30 p.m. Manoj gave a lathi blow below right knee of the complainant and as a result he fell down on the road. Thereafter, other persons inflicted lathi blows on his left knee and both hands. He raised an alarm, which attracted Lachhman Singh andTitu. The cause of grudge was that a dispute regarding a piece of land was going on between the complainant and Manoj.
On the basis of the statement of complainant formal FIR No.561 dated 6.5.1997 under Section 323/148/149 IPC was registered.
Complainant was shifted to General Hospital, Karnal. His statement was recorded after the doctor declared him fit to make a statement on 6.5.1997. Doctor S.L.Verma (PW-10) found the following injuries on the person of the complainant:-
1. A painful boggy swelling over right leg in the middle of size 12x 10 cm. The leg was lying in unnatural condition. X-ray of right leg was advised.
2. A lacerated wound of size 0.5 x 0.5 cm on the dorsum of left hand along with swelling and crepitus feel in the Criminal Appeal No.210-DB of 1998 3 middle of left hand. There was fresh bleeding present.
X-ray for left hand was advised.
3. A painful swelling on dorsum of medial side of right hand. X-ray for right hand was advised.
4. A swelling of size 6 cm x 4 cm on the dorsum of left knee joint. X-ray was advised.
5. A contusion of size 15 cm x 2.5 cm linear on medical and anterior aspect of right thigh was present.
6. He was complaining of paid left ankle joint. X-ray for left ankle was advised.
7. An abrasion of size 4x 3 cm on the medial aspect of right knee joint was present.
Injuries No. 1 to 4 and 6 were kept under observation subject to X-ray report and ortho surgeon report. Injuries No. 5 and 7 were declared simple in nature. All the injuries were opined to be blunt in nature. Probable duration of injuries was within few hours.
On 7.5.1997, Dr. Sham Wadhwa(PW-8) conducted the radiological examination of Karam Singh and found fracture of both bones of right leg; fracture of 4th and 5th metacarpals of right hand; fracture of 3rd metacarpal of left hand; fracture of lower end of left femur; and fracture shaft left fibula.
Karam Singh, however, succumbed to his injuries on 10.5.1997 and information in this regard was sent by Dr. Dinesh Sharma (PW-11) to the S.H.O. Karnal. An offence under Section Criminal Appeal No.210-DB of 1998 4 302 IPC was also added in the FIR.
Dr.S.K.Khattar (PW-1) has conducted the post mortem examination on the dead body of Karam Singh and on removing the splints and Plaster of Paris found the following injuries on his person:-
1. There was diffuse swelling on the right leg of the size of 12 cm x 10 cm in the middle of right leg. On dissection, a big haemotoma was seen underneath this injury and both bones were seen fractured.
2. There was a diffuse swelling on the dorsal surface of left hand in its middle part. On dissection clotted blood was present underneath and fracture of metatarsal was seen.
3. A diffuse swelling on the dorsal surface of right hand.
On dissection haemotoma was seen and fourth and fifth metacarpals were seen fractured.
4. A diffuse swelling and deformity was present on the anterior aspect of lower part of left thigh. On dissection a big haemotoma was present and lower end of femur was fractured.
5. A healed abrasion reddish brown in colour of the size of 4x3 cm on the medial aspect of right knee joint.
6. A diffuse swelling 12 cm x 4 cm on the anterior lateral aspect of middle portion of left leg. On dissection Criminal Appeal No.210-DB of 1998 5 haemotoma was seen underneath the injury and fracture of shaft of fibula was seen.
In his opinion cause of death in this case was due to collective effect of all the injuries described, which were ante mortem in nature and sufficient to cause death in the ordinary course of nature.
On 12.5.1997 an offence under Section 120-B IPC was also added in the FIR.
After completion of investigation and necessary formalities all the ten accused were sent up for trial. Charge against them was framed under Section 325, 323, 302 read with Section 149, IPC and 148/120-B IPC on 3.9.1997. Accused did not plead guilty and claimed trial.
Prosecution examined Dr.S.K.Khattar (PW-1), Dr.Sham Wadhwa (PW-8), Dr.G.L.Dhall (PW-9), Dr.S.L.Verma (PW-10), Dr.Dinesh Sharma (PW-11), Om Parkash, SI (PW-15) and Fateh Singh, Inspector (PW-16). The remaining material witnesses examined at the trial, however, did not support the prosecution case and consequently, nine accused except the appellant were acquitted of the charge framed against them as there was no material evidence put to them under Section 313 Cr.P.C.
After close of prosecution evidence, appellant-Manoj, when examined under Section 313 Cr.P.C., pleaded that it was a false case. He had met with an accident in which his right arm had Criminal Appeal No.210-DB of 1998 6 been fractured and was not functioning properly. He was not in a position to use any weapon. He, however, did not examine any witness in his defence despite the opportunity having been given.
Learned trial Judge accepted the prosecution version and found Manoj guilty of offence under Section 302 IPC vide the impugned judgment.
Learned counsel for the appellant has submitted that no offence under Section 302 IPC was made out against the accused. No reliance could be placed on the statement of the deceased. The same could not be treated as a dying declaration because at that time the deceased had no immediate apprehension of death. Injuries allegedly suffered by the deceased were not on any vital part. The possibility that the appellant had been falsely involved in this case could not be ruled out as there was a land dispute pending between the appellant and the deceased.
Learned State counsel, on the other hand, has submitted that the occurrence had taken place on 6.5.1997 and on the same day statement of injured Karam Singh was recorded by the Investigating Officer. Karam Singh, however, succumbed to his injuries on 10.5.1997 and, as such, his statement was liable to be believed, being a dying declaration.
Prosecution case rests on the sole testimony of the injured/deceased made before the Investigating Officer.
Occurrence in this case had taken place on 6.5.1997 at Criminal Appeal No.210-DB of 1998 7 about 12.30 p.m. Injured was immediately got admitted in the hospital at 1.15 p.m. After the doctor declared him fit to make a statement at 3.15 p.m., the Investigating Officer recorded the statement of Karam Singh. As per the complainant, appellant along with other persons armed with lathis and dangs had inflicted injuries on his person. Injury No.1 is attributed to the appellant, which is below the right knee. As a result of injury No.1 both bones of the right leg were fractured. Injured Karam Singh succumbed to his injuries on 10.5.1997.
Section 32 of the Indian Evidence Act 1872 deals with cases in which statements of relevant facts by a person who is dead, or cannot be found etc. is relevant. As per Section 32 (1) 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 then such statements are relevant whether the person, who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of proceeding in which the cause of death comes into question.
Om Parkash, Investigating Officer (PW-15) has deposed that he had recorded the statement of Karam Singh, injured, on which he had obtained his signatures. The statement, Exhibit PB, had been written by him as stated by Karam Singh. The same was read over by him to Karam Singh and, thereafter, he had signed the Criminal Appeal No.210-DB of 1998 8 same after understanding its contents. The Investigating Officer was doing his public duty and had no enmity against the appellant to involve him falsely in this case. The statement of the injured was recorded by the Investigating Officer in the course of his official duty after the injured was declared fit to make a statement by the doctor. The injured may or may not have made the statement under expectation of death but since he has died after making the statement on account of the injuries suffered by him, the same can safely be treated as a dying declaration and is relevant.
The next question that requires consideration is as to whether the said dying declaration can be relied upon and is trustworthy.
As observed by the Apex Court in the case of Jai Karan v. State of (N.C.T.Delhi) AIR 1999 S.C. 3512 the principles governing dying declaration have been summed up as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration;
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration;
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The Criminal Appeal No.210-DB of 1998 9 deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration;
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence;
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected;
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction;
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected;
(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;
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail;
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."Criminal Appeal No.210-DB of 1998 10
We have carefully examined the dying declaration in this perspective. Karam Singh was known to the accused and as such it cannot be said to be a case of mistaken identity of the assailant. Accused and Karam Singh were having a land dispute and, as such, prosecution has been successful in proving that there was motive on the part of the appellant to have inflicted injuries on the person of the deceased. Dying declaration was recorded immediately after the occurrence and, as such, the possibility that it was a result of tutoring/prompting or imagination can be ruled out. Karam Singh had only named the appellant in his statement and in case he wanted to falsely involve some other persons in this case, he could have given more names also. The fact that only one of the assailants was named by Karam Singh before the police leads to the inference that dying declaration was natural and trustworthy. Karam Singh had been declared fit to make the statement by the doctor. The dying declaration gives the narration of occurrence in brief which further strengthens the prosecution case that it was a true version of the occurrence. The dying declaration in the facts of the present case can neither be said to be suspicious or infirm and can be safely relied upon without any corroboration.
Dr.S.K.Khattar (PW-1), who had conducted the postmortem examination on the dead body of Karam Singh, in his cross-examination has deposed that none of the injuries was on any vital part of the body of the deceased. In his examination-in-chief, he Criminal Appeal No.210-DB of 1998 11 deposed that in his opinion cause of death was the result of collective effect of all the injuries. All the other accused were acquitted in this case as the prosecution had failed to lead any evidence against them during trial. Injury No.1 is attributed to the appellant as per which both bones of right leg of the deceased were fractured. The other injuries are also not on any vital part of the deceased. This leads to the inference that the assailants had no intention of committing murder of deceased Karam Singh but they had the knowledge that the injuries were likely to cause death. The appellant was, thus, not guilty of an offence under Section 302 IPC, but was guilty of an offence under Section 304 (II) IPC.
Accordingly, this appeal is partly allowed. The appellant is acquitted of the charge framed against him under Section 302 IPC and is convicted of an offence under Section 304 (II) IPC and is sentenced to imprisonment for the period already undergone by him.
(SABINA) JUDGE (JASBIR SINGH) JUDGE August 27, 2008 anita