Punjab-Haryana High Court
Surinder Paul And Ors. vs State Of Punjab on 6 March, 1996
Equivalent citations: 1997CRILJ1745
Author: K.S. Kumaran
Bench: K.S. Kumaran
JUDGMENT V.K. Bali, J.
1. In these two separate Criminal Appeals bearing No. 139-DB of 1993 preferred by Surinder Pal, Raj Kumar and Billa and Criminal Appeal bearing No. 180 DB of 1993 preferred by Des Raj the challenge is to the order of conviction and sentence recorded by Additional Sessions Judge, Jalandhar dated 26th of April, 1993 vide which the appellants herein were held guilty under Section 302 read with Section 34 of the Indian Penal Code for having done to death Smt. Pushpa wife of appellant Des Raj and ordered to undergo imprisonment for life and to pay a fine of Rs. 5000/- each in default whereof, they were further ordered to undergo rigorous imprisonment for one year. Whereas Smt. Pushpa deceased was wife of Des Raj appellant, the other appellants Surinder Pal, Raj Kumar and Billa are (nephews) brother's sons of Des Raj. The only question raised in this appeal is as to whether the dying declaration made by Smt. Pushpa wife of Des Raj in the facts and circumstances of this case deserves to be believed and if so whether it has to be believed in its entirety or some part of it can be rejected. Before the sole question is answered one way or other, it would be useful to give brief resume of facts leading to the death of Smt. Pushpa.
2. Smt. Pushpa was taken to Civil Hospital, Jalandhar in injured condition when she had at that time 90% burn injuries on her body. Her statement was recorded at 4.00 A.M. on 15th of November, 1989 by Lashkar Singh A.S.I., Police Station Division No. 6, Jalandhar, Dr. S. S. Thind, E.M.O. Civil Hospital, Jalandhar vide Ex. PE/I certified that Smt. Pushpa remained fit throughout while making her statement. Pushpa stated in her aforesaid statement that she was resident of Mohalla Bhargo Camp. Her husband Des Raj was engaged in the business of preparing Steel Pettis and trunks. He always came to the house after drinking from the shop and harassed her. He was not giving expenses for running the household for the last about one month and even had turned her out of the house earlier on her demand for expenses for running the house. At about 11.00 P.M. her husband came to the house after taking liquor from the shop. He called her from the Chobara to the shop situated on the ground floor. There was no light in the shop. Chhindason of her Jethani (husband's elder brother's wife) Kaushalya caught hold of her from her mouth and Billa gave her a slap on her face. Then Raja who was son of her Jethani picked up a canny containing kerosene oil from nearby and handed over the same to her husband Des Raj. Then her husband Des Raj after taking canny of kerosene oil, threw the kerosene oil on her person and set her on fire with the help of match stick, saying that he would finish her and clear the passage of his life. When she was set on fire, at that time the shutter of the shop was half open. She raised alarm, 'Bachao, Bachao', as a result of which her husband Des Raj sons of her Jethani (husband's elder brother's wife) namely, Raja, Chhinda and Billa fled away. Her son Surjit Kumar who was married and was also sleeping in a separate room on the back of the shop, woke up and came there on hearing her alarm. He extinguished the fire. Then her other children also came there from the chobara. Surjit Kumar and Nirma her daughter-in-law took her in their room. Thereafter, her daughter Parveen removed her to Civil Hospital, Jalandhar on the three wheeler and got her admitted there, where she had been under treatment. Her son Surjit Kumar did not come to admit her due to fear of her husband.
3. The occurrence as per the statement of Smt. Pushpa leading to her sustaining the burn injuries had taken place on 14th of November, 1989 at 11.00 P.M. On the statement of Smt. Pushpa reproduced above formal F.I.R. came to be registered at about 4.40 A.M. on 15th of November, 1989 and special report reached the Magistrate at Jalandhar on 16th of November, 1989 at 11.55 A.M.
4. With a view to bring home the offence against the appellants herein, the prosecution examined Dr. Surinder Singh Medical Officer, Civil Hospital, Jalandhar as PW-1. He stated that on 20th November, 1989 at about 10 A.M. he conducted the post-mortem examination on the dead body of Smt. Pushpa aged about 45 years. He observed the following :
"Moderately built, moderately nourished body of female aged about 45 years. Body lying on polethene sheet and covered with a chadar. Metalic ring on the left ring finger, plastic bangle's on both the arms. White ointment on the burns present. A stitched wound on the right ankle, hair present. Burns superficial to deep, all over the body except pubic area, lower abdomen, both lower limbs, buttocks and back of thighs. 1st degree to 3rd degree burns of 80% present. The internal organs like plurea, laraynx and treachea both the lungs, liver, spleen and kidneys were found to be congested. Uterus of normal size, no pregnancy was detected.
The doctor opined that the cause of death was due to septicemia shock following 80% burns which in the ordinary course of nature were sufficient to cause death. The time that elapsed between injuries and death was within five days and between death and post-mortem was within 18 hours. Dr. Santokh Singh, Medical Officer, Civil Hospital Jalandhar was examined as PW-2. He stated that on 15th of November, 1989, he had admitted one Smt. Pushpa wife of Des Raj in emergency ward. She was having burn injuries and was in serious condition. He had given information Ex.PD to the police asking them to record her statement. ASI Lashkar Singh came and recorded the statement of Smt. Pushpa. Her statement was recorded in his presence and he had given certificate Ex.PE/1 that she remained fit so long as she made her statement. Lashkar Singh ASI was examined PW-3. He apprised the Court the way and manner in which he had made investigation. He also stated that on receipt of information, he had gone to Civil Hospital and recorded the statement of Smt. Pushpa Fix. PE 'which was so recorded in the presence of Dr. S. S. Thind after recording his statement that she was fit to make a statement. For that purpose he had made application Ex.PE and the doctor had given opinion as Ex.PF/1. He had taken into possession match box, burnt quilt and one Can of kerosene oil from the house of appellant Des Raj. Shri J. S. Dhillon Executive Magistrate, Rajkot was examined as PW-5. He stated that on 15th of November, 1989 on police request he went to Civil Hospital Jalandhar and made enquiries from Smt. Pushpa wife of Des Raj. He had also received fitness certificate from the doctor. Whatever statement she made to him corelated with the statement recorded by Lashkar Singh ASI and he recorded those facts in Ex.PW/A which was signed by him. In cross-examination he admitted that he had heard whatever Pushpa wanted to say and then read the statement recorded by ASI Lashkar Singh. He had not recorded name and address of Pushpa before recording her statement and also had not recorded the statement in the words of Smt. Pushpa. He had heard the statement orally and did not record the same. Surinder Kumar son of deceased Pushpa and appellant Des Raj was given up as won over by the accused. From the facts stated above, it is, thus, apparent that the only evidence against the appellants is dying declaration made by Smt. Pushpa and as mentioned above the only question therefore, is as to whether the said dying declaration in the facts and circumstances of the case deserves to be accepted or rejected. Before, however, that exercise is taken in hand, it may be mentioned here that the appellant Des Raj when examined under Section 313 of the Code of Criminal Procedure stated that a false case has been foisted against them at the instance of Kewal who was brother of his deceased wife Smt. Pushpa. He and his wife had strained relations with Kewal as they had kept some money and ornaments on trust with him which he had refused to handover to them. Kewal in connivance with the police had implicated him in a false case. He and his wife were leading happy married life along with their children. On the day of occurrence, when he came from outside, he heard the shrieks of his wife who was on fire. His children were also present there. He made every effort to save her and to extinguish the fire and in that process he himself had received burn injuries. He removed his wife to the hospital and later on reported the matter to the police also where he was kept in illegal confinement and was subsequently got medically examined for his burn injuries. His co-accused who were his nephews were living separate from him at a distance of about one mile from his residence. They were not present there at the time of occurrence and the police had fabricated the dying declaration and Smt. Pushpa had not made any statement at any time. The other appellants denied their presence at and near the place of occurrence. The appellants also examined in their defence Dr. Santokh Singh, Medical Officer, Civil Hospital, Jalandhar as DW-1. He stated that on 18th of November, 1989 at 10.00 A.M. he had conducted medico-legal examination of Des Raj and found the following injuries on his person :-
1. 1st and IInd degree bum on right forearm on anterior aspect, on medial side in medial 1/3rd of forearm from elbow joint to the part 3" above the wrist joint. Slough separated out.
2. 1st & IInd degree burn on chest on right side near the midline over an area of 3" x 2" on lower part.
3. Abrasion 6" lenear on the back on thoracic spine starting from middle of it to lower part scab present.
In cross-examination this witness stated that if a person wanted to extinguish the fire, it was expected that he will do it with his hands. Arvind Sood Documents Expert was examined as DW-2. He only stated that he had examined the thumb impression present at the end of dying declaration Ex.PE and that if the thumb and the hand was in burnt condition, then the impression of ridges present in such thumb could not be taken. He also stated that the thumb impression of Smt. Pushpa present at Ex.PE/1 Was incomplete and all the portions of this impression on the left and right side were missing and the central portion showing the pattern area was also incomplete. Only few ridges visible at Ex.PE/1 were not sufficient for the purposes of comparison. Krishna wife of Mohan Lal was examined as DW-3. She only staled that her house was situated in front of the house of appellant Des Raj and that when on 14th of November, 1989 at about 11.00 P.M. she had heard the alarm of Des Raj. she had gone to his house and she was told that Smt. Pushpa had received burn injuries accidently. She also stated that Des Raj Surjit, Parveen and Nirmala had extinguished the I ire and when Des Raj attempted to extinguish the fire, he had also received burn injuries. In the cross-examination she stated that she could not say if there was any dispute between Pushpa and Des Raj. Shri Aipit Shukla S.P. was examined as DW-4. He stated that in November. 1989 he was posted as DSP Head quarters at Jalandhar and was supervisory officer of Police Station Division No. 6 and that he had partly investigated this case. He had verified the investigation and examined witnesses including Krishna wile of Mohan Lal and Des Raj son of Lal Chanel. He had found accused Chhinda, Raja and Billa as innocent and that he had recommended that Des Raj should be challaned under Section 306 of the Indian Penal Code. In cross-examination he stated that he did not record separate statement of any witness.
5. In support of the appeal filed by the appellants Mr. P. S. Mann learned Senior Advocate contends that dying declaration having been recorded by a police officer when there was ample opportunity for a judicial officer or Executive Magistrate to record the same, should not be believed. It is further being argued that the Executive Magistrate actually reached the spot even though later in point of time, but did not himself record the statement of Smt. Pushpa and for that reason as well, no implicit faith should be placed on the statement recorded by A.S. I. Lashkar Singh. In support of his contention noted above, the learned Counsel has taken us through ruqa Ex.PD wherein the concerned doctor had addressed a note to the S.H.O. Police Station Division No. 6, Jalandhar and informed that Smt. Pushpa wife of Des Raj was admitted in emergency ward with burns over her body in serious condition and therefore, arrangement should be made to get her statement recorded by an Executive Magistrate. This information was sent as per Ex.PD at 1.40 A.M. on 15th of November, 1989, and the statement of Smt. Pushpa was actually recorded at 4.00 A.M. The Executive Magistrate had reached the hospital at about 11.00 A.M. There thus clapsed a time of over two hours during which it was not difficult for the ASI to request the Executive Magistrate to reach the Civil Hospital, Jalandhar, The Executive Magistrate, however, arrived at 11.000 A.M. and chose not to himself record the statement of Smt. Pushpa. Mr. Mehtab Singh learned Deputy Advocate General, Punjab, however, has joined issues with the learned Counsel appearing for the defence and has endeavoured us to sustain the order of conviction and sentence recorded by the learned Additional Sessions Judge.
6. We have heard the learned Counsel representing the parties and with their assistance have scanned through the evidence. We are, however, of the view that there is absolutely no substance in the contentions of the learned defence Counsel noted above. The occurrence in which Smt. Pushpa sustained extensive burn injuries took place at 11.00 P.M. on 14th of November, 1989. It appears from the records of the case that within an hour or so she reached the hospital. The doctor clearly was of the opinion when he sent the information to the police Ex.PD at 1.40 A.M. that Smt. Pushpa was in a serious condition. Police Officer, of course, reached the Civil Hospital at 3.15 A.M., and sought opinion of the doctor as to whether Smt. Pushpa was fit to make her statement. On this application Ex. PF the doctor opined in affirmative. The condition of Smt. Pushpa being serious, it was not a case where the police should have lost time and waited for the Magistrate to arrive. If in this waiting of the Magistrate time was lost and perhaps Smt. Pushpa had expired before arriving the Magistrate, in our considered view the ASI would have certainly been blamed for neglecting to perform his duties. In such a situation, we find no fault with the Police Officer to proceed to record the statement, of Smt. Pushpa. If the Magistrate was to arrive later at a time when Smt. Pushpa was still alive, another statement of Smt. Pushpa could have been recorded but before arrival of the Magistrate if Pushpa would have died, this would have been serious lapse on the part of the Police Officer so as not to record the statement of Smt. Pushpa on the ground that only Magistrate would do it as and when he might come. The ASI, in our view, chose the second best alternative with him and while so doing and himself recording the statement of Smt. Pushpa, he took all necessary precautions. He first obtained the view of the doctor as to whether Smt. Pushpa was in a fit state to make the statement. He then made a doctor to stand by his side while he was recording the statement and after recording the statement he again had endorsement from the doctor on the statement of Smt. Pushpa that she remained fit to make the statement throughout when the same was being recorded by him. It is true that the Executive Magistrate should have himself recorded the statement of Smt. Pushpa instead of orally verifying the facts from Smt. Pushpa and simply giving his endorsement that he had orally verified from Smt. Pushpa the events leading to her burn injuries. We are of the considered view that the learned Executive Magistrate failed to perform his duties. Being in a position that he was, he ought to have thought that when he was called to record the statement of a dying person, he has not to leave it to the police department and be satisfied after verifying the facts orally from the injured person. He ought to have himself recorded the statement of Smt. Pushpa. It appears to us that the Executive Magistrate did not know at all either the rules or instructions with regard to recording of the dying declaration. This is not the only case where the Executive Magistrate had not followed the rules and instructions with regard to recording of the dying declaration. Number of cases have come to our notice where the Executive Magistrates have not adhered to the rules governing recording of dying declaration. There is an undeniable impression in our mind that the relevant rules are not known to the Executive Magistrate both in the States of Punjab and Haryana. Chapter 13A inserted in Volume III of the Punjab and Haryana High Court Rules and Orders on 26th of May, 1966 exhaustively deals with the way and manner the dying declaration is to be recorded. We may emphasise that the statement commonly known as "dying declaration' constitutes such an important evidence in criminal cases that it can form the sole basis of conviction and it was so ruled by the Apex Court in Khushal v. State of Bombay, AIR 1958 SC 22 : (1958 Cri LJ 106) and in Harbans Singh v. State of Punjab, AIR 1962 SC 439 : (1962 (1) Cri LJ 479)). That being the importance of the dying declaration, as far as possible the dying declaration should be recorded in the manner provided in the rules referred to above. Rules 3 to 10 of Chapter 13A run as follows :-
"3. Fitness of the declarant to make the statement should be got examined :-
Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting for the attendance of the Medical Officer the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but be should note down why he considered it impracticable or inadvisable to wait for a doctor's attendance.
"4. The statement of the Declarant should be in the form of a simple narrative :-
The statement, whether made on oath or otherwise, shall be taken down by the Judicial Magistrate in the form of a simple narrative. This however, will not prevent the Judicial Magistrate from clearing up any ambiguity, or asking the declarant to disclose the cause of his apprehended death or the circumstances of the transaction in which he sustained the injuries. If any occasion arises for putting question to the dying man. the Judicial Magistrate should record the questions as also the answers which he receives. The actual words of the declarant should be taken down and not merely their substance. As far as possible the statement should be recorded in the language of the declarant or the court language.
5. Signature or thumb impression of the declarant to be obtained in token of the correctness of the statement:-
At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb impression in token of its correctness unless it is not possible to do so. The dying declaration shall then be placed ill a sealed cover and transmitted to the Judicial Magistrate having jurisdiction to deal with the case to which it relates.
6. Recording of Dying Declaration at a place away from the District Head quarters:-
Where in an emergency a dying declaration has to be recorded at' a place away from the District Headquarters the investigating Officer or the medical officer attending upon the dying man shall apply to the nearest Judicial Magistrate to record the dying declaration and such Judicial Magistrate shall immediately proceed to the spot and take down the statement of the dying man in the manner stated above.
This however would not prevent the medical officer or the police officer connected with the investigation of the case from recording the dying declaration if he is of the opinion that death is imminent and there is no time to call a Judicial Magistrate. In such cases the Police or the Medical Officer concerned must note down why it was not considered expedient to apply to a Judicial Magistrate for recording the dying declaration or to wait for his arrival.
7. Recording of a Dying declaration by a Police officer or medical officer:-
Where a dying declaration is recorded by a police officer or a medical officer, it shall, so far as possible, be got attested by one or more out of the persons who happen to be present at the time.
88. Fitness of the Declarant to make a statement to be certified by the Judicial Magistrate or other officer concerned :-
The Judicial Magistrate or other officer recording dying declaration shall at the conclusion of the dying declaration certify that the declarant was fit to make a statement and it contained a correct and faithful record of the statement made by him as well as of the questions, if any, that were put to him by the person recording the statement. If the accused or his counsel happens to be present at the time of dying declaration is recorded, his presence and objection, if any, raised by him shall be noted by the judicial Magistrate or the officer recording the dying declaration, but the accused or his counsel shall not be entitled to cross-examine the declarant.
"9. Dying declaration should be free and spontaneous :-
It is the duty of the person recording a dying declaration to take every possible precaution to ensure the making of a free and spontaneous statement by the declarant without any prompting, suggestion or aid from any other person.
10. Welfare of the injured persons :-
The Judicial Magistrate, medical officers and police officials must all realize that the welfare of the injured man should be their list consideration, and in no circumstances must be proper medical treatment be impeded or delayed simply to obtain dying declaration of the injured man.
7. These rules as far as possible should be followed by all the Magistrates whether judicial or executive while recording dying declarations. We may emphasise here that the procedure of recording dying declarations should normally not be deviated and it is only in emergent and unavoidable circumstances that departure from these rules may still not vitiate the authenticity of a dying declaration. We direct that a copy of this judgment be sent to the Secretary, Department of Home of both the States of Punjab and Haryana and U.T. Chandigarh so that it may be circulated to the Executive Magistrates.
8. In the present case, however, non-recording of the dying declaration by the Executive Magistrate itself shall not detract from the prosecution version. ASI who actually recorded the dying declaration of Smt. Pushpa, even though recorded by a Police Officer cannot be disbelieved on that count alone. It has not been shown by the defence that he was either interested for some reasons to exaggerate the prosecution version or was inimically disposed towards the appellants herein. That apart, the doctor in whose presence the dying declaration was recorded by the A.S.I. has deposed in tune with the statement of the ASI. He is totally an independent witness and his evidence inspires confidence. The statement of the Executive Magistrate who as referred to above did not record the statement of Smt. Pushpa himself corroborates the statements of A.S.I. and the doctor.
9. However, coming now to the appeal preferred by the other appellants, namely, Surinder Pal, Raj Kumar and Billa, it has come on the record of the case that they were not living with or. near the house of Des Raj and Smt. Pushpa. Their house is located at a distance of more than one Kilometre. Des Raj and his deceased wife Smt. Pushpa were living with their children including a married son and a daughter-in-law. It does not appear probable to us that when so many inmates of the family of Des Raj and Smt. Pushpa were in the house, the nephews of Des Raj would have dared to commit this crime in the house. It is also made out from the dying declaration made by Smt. Pushpa that she was unhappy with nephews of her husband who according to her version used to drink in the company of her husband. That apart, the D.S.P. who initially investigated the case, after recording the statements of various persons even though in Zimni found the nephews of Des Raj innocent and it was for this reason that they were put in Column No. 2 when the challan was presented in the Court. Further, it is the appellant Des Raj who sprinkled kerosene oil on Smt. Pushpa and lighted the match-stick. The nephews of Des Raj are alleged to have only incited or helped Des Raj in committing the crime. A doubt creeps in the mind of the Court with regard to the role of nephews of Des Raj and as a matter of abundant caution, they, in our view, deserve to be given the benefit of doubt, and acquitted.
10. Before we part with the judgment, we may mention that Apex Court in Godhu v. State of Rajasthan AIR 1974 SC 2188 : (1974 Cri LJ 1500) has held, "it is not correct to hold that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. In cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part that it is not possible to sever the two parts, the Court would be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. In our view, in the facts and circumstances of this case dying declaration of Smt. Pushpa is such that it can be served in two parts. Whereas one part of the dying declaration wherein allegations have been made against Des Raj appears to us to be correct but a doubt creeps in our mind with regard to the other part of the statement, regarding the other accused/appellants.
11. For the reasons recorded above, the appeal preferred by Des Raj appellant bearing Criminal Appeal No. 189-DB of 1993 is dismissed.
12. The other appeal preferred by the appellants Surinder Pal, Raj Kumar and Billa bearing Criminal Appeal No. 139-DB of 1989 is allowed and to that extent the judgment of conviction and sentence recorded by the learned Additional Sessions Judge is set aside in regard to these appellants and these appellants be set at liberty forthwith if they are not involved in any other case.