Punjab-Haryana High Court
State Of Haryana vs Sube Singh on 5 July, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
Neutral Citation No:=2024:PHHC:084423
CRA-D-146-DBA of 2003 - 1-
303
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-146-DBA of 2003
Date of Decision: 05.07.2024
State of Haryana ...Appellant
Vs.
Sube Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present: Ms. Sheenu Sura, DAG, Haryana.
Mr. Divyanshu Kaushik, Advocate with
Ms. Simran Sharma, Advocate
Ms. Manreet Kaur, Advocate and
Mr. Gurjot Singh, Advocate
for the respondent.
***
N.S.SHEKHAWAT, J.(Oral)
1. By way of the present appeal, the State of Haryana has challenged the impugned judgment dated 03.04.2002 passed by the Additional Sessions Judge, Kaithal, whereby, the respondent has been acquitted of the charge under Section 302 IPC.
2. As per the case set up by the prosecution, Dalbir son of Ram Dhari aged about 38 years was admitted in Civil Hospital, Kaithal at about 03.00 a.m. on 30.05.1999 and a Rukka Ex.PB was sent by the doctors to the S.H.O. Police Station City Kaithal. On this, 1 of 21 ::: Downloaded on - 22-07-2024 05:38:24 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 2- ASI Ram Pal went to the hospital and after obtaining the medical opinion with regard to the fitness of Dalbir to make the statement, he moved an application Ex.PD to the Chief Judicial Magistrate, Kaithal for recording the statement of Dalbir, injured. On this, Satish Ahlawat, the then Chief Judicial Magistrate, Kaithal, reached the hospital at about 05.15 a.m. on 30.05.1999 and recorded the statement Ex.PE of Dalbir on oath. On the strength of the statement Ex.PE, FIR Ex.PE/1 was recorded. The translation of statement of Dalbir is reproduced below:-
"Statement of Sh.Dalbir Singh son of Ram Dhari Jat aged 35 years Labrourer resident of Ballu, on S.A. I was married with Ramdei about 20 years ago. From the wed lock four children were born but they had expired, now we have no child. About two year ago I alongwith my wife had gone to Jind for doing labour work and thereafter we stayed at Tohana as well. I did manual work on daily wages and also sold vegetables. My mother's name is Somkar who had previously married Jita; from the wedlock of Somkar and Jita one son Sube Singh (accused) was born. Jita had died about 35-36 years ago somkor performed karewa marriage with Ram Dhari who happened to be real brother of Jita because Ram Dhari was bachelor and a military person from the loins of Ram Dhari. Somkar gave birth to two sons myself that is Dalbir and Satbir besides, two daughters Sona and Rajpati, I and Sube have common mother but have different fathers. I have four killa of land which was cultivated by Suba. My wife had gone to
2 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 3- village Dadanpur to meet her Bhua. I had come to the village in the evening at bout 7.00 or 8.00 P.M. I went to my house which had fallen. I sat down and started smoking Biri. I was alone. I wanted to take back the land from Suba and wanted to give it on lease, so that I may get some income because Suba was not giving any money and he was cultivating the land free of costs. When I was sitting in my house and smoking Biri my brother Suba (accused) scaled over the well and entered the house and retorted me that he would mu return my land. He was possessing a Diba and poured oil upon me and thereafter ignited the match stick, threw upon me as result of which my shirt and payjama got fire. I raised hue and cry and Sube ran away. On the spot Rishi Pal, Ajmer, Hawa Singh etc. were attracted. I was put in Jeep and taken to Government Hospital. In set on fire by Suba after pouring oil because, I was demanding back my land but he was not returning it.
RO&AC Sd/-
thumb impression Chief Judicial Magistrate,
Kaithal 30.05.99."
3. After recording the dying declaration of Dalbir, injured, the FIR under Section 307 IPC was recorded by the police. Dalbir, injured was referred to P.G.I.M.E.R., Chandigarh and he expired on 02.06.1999. After his death, the postmortem was conducted on 03.06.1999 and the dead body was handed over to the family of Dalbir, since deceased. After completion of the necessary investigation, the final report under Section 173 Cr.P.C. was 3 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 4- presented against the respondent under Section 302 IPC. After committal proceedings, charge under Section 302 IPC was framed against the respondent/accused, to which, he pleaded not guilty and claimed to be tried.
4. In order to prove the charge against the respondent, 14 witnesses were examined by the prosecution. The prosecution examined PW1 Dr. D.C.Thukral, who had initially examined Dalbir at 03.00 a.m. on 30.05.1999. He was brought by Inder Singh resident of village Balu. The said witness stated as under:-
"On examination, he was conscious, oriented, pulse was 90 per minute, smell of kerosene and burning coming from body. There were superficial to deep burns over front and back of chest and abdomen. Both upper limbs and groin region. Approximate area of burn was 50 to 60%. Surgeon opinion was advised. The injuries were kept under observation and were caused within six hours. Burns were caused due to fire. Ex.P.A is the correct carbon cony of the MlR which bears my signatures. I had sent Rukka Ex. PB to S.H.O. P.S.City Kaithal regarding the admission of the injured, at 3.00 A.Μ. On the same day, police moved an application Ex.P.C. before me on which I made my endorsement Ex.PC/1 vide which patient was declared fit to make statement at 4.00 Α.Μ."
In his cross-examination, PW1 Dr. D.C. Thukral stated that the police had talked to the patient after he declared the patient fit to make the statement. He could not say as to whether the statement 4 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 5- of the injured was recorded by the police or as to whether his thumb impression was obtained by the police or not. There were other persons besides Inder Singh, who accompanied the patient. However, he could not tell their names as he had mentioned the name of Inder Singh in his report. In his presence, the statement of injured was not recorded by any police official or by any other person as he had not mentioned any such fact in his report.
5. The prosecution further examined PW2 Rishi Pal, nephew of Dalbir. He was neighbour of Dalbir and on hearing alarm, he had reached the house of Dalbir. Dalbir was found burning and Pal was trying to extinguish the fire by putting sand on his body. In the meantime, Hawa Singh had also reached there. In his cross- examination, he admitted that the houses of Dalbir surrounded by his house and residential house of Satbir and Suresh. Even Suresh had opened a tent house in the said house. Dalbir owned only two acres of agricultural land and he used to self cultivate the same. Dabir never gave land on Batai to anyone. Wife of Dalbir had also come at the spot and Inder Singh Sarpanch had also reached the place. He, wife of Dalbir, Hawa Singh and Inder Sarpanch accompanied Dalbir to hospital. He had inquired from Dalbir as to how he had caught fire and he replied that he was under great financial crisis as he had to pay a substantial amount to different persons and he set himself on fire. He admitted that in October, 1998, Dalbir had consumed poison by 5 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 6- taking tablets of phosphorus meant for preserving wheat and he was saved due to vomiting. They had reached Civil Hospital, Kaithal, at about 03.00 a.m. and the police had also come in the hospital and the statement of Dalbir was recorded at 04.00 a.m. Dalbir stated before the police in his presence that he was to repay substantial amount to various persons and he committed suicide by setting himself on fire. He further admitted that Dariya, Pala, Suraj Bhan and Sadhu, all residents of village Balu were known to him and those persons had caused injuries to Sube Singh, accused in June 1998. However, the matter was compromised in Panchayat in the presence of Sarpanch and all the aforesaid four persons had beg pardoned from Sube Singh, accused. He further admitted that Dalbir was a drunkard and used to remain in the company of aforesaid four persons and all the aforesaid four persons had also come to the hospital at about 04.15 a.m. He, Inder Singh Sarpanch and Hawa Singh Sarpanch had returned to the village at about 04.30 a.m. from the hospital and all the aforementioned four persons were busy in talking to Dalbir, when they left the hospital. Sube Singh, respondent/accused was known to him since childhood and on the date of the occurrence Sube Singh was not in the village and was away to some other village.
6. The prosecution further examined PW3 Constable Satyavan, who had delivered the special report. ASI Surender Pal appeared as PW4, who recorded the statement of Rishi Pal under 6 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 7- Section 161 Cr.P.C. The prosecution further examined ASI Ram Pal as PW5, who had received the Rukka at 03.30 a.m. and reached the hospital at about 03.45 a.m. He did not meet any other person except the deceased. He did not make any inquiry from Dalbir injured and went to the Magistrate to get his statement recorded. The prosecution further examined ASI Kitab Singh, who had prepared the inquest report Ex.PG and got the postmortem examination conducted on 03.06.1999. Inder Singh, Ex. Sarpanch, was examined as PW7, who had shifted Dalbir to Civil Hospital, Kaithal. He admitted that Dalbir never leased out his land to Suba @ Sube, accused. They had reached the hospital at 03.00 a.m. on 30.05.1999. Dalbir had told the police in his presence that he himself set him on fire as he was to repay a substantial amount to different persons and was under depression. He further admitted that 06 months ago, Dalbir had tried to commit suicide after consuming sulphas tablets and he was saved due to vomiting. After the statement of Dalbir was recorded by the police, four persons, namely, Dariya, Pala, Suraj Bhan and Sadhu had come to the hospital at 04.15 a.m. He admitted that these four persons had caused injuries to Sube accused in June 1998 and he got the matter compromised and those four persons had begged pardon from Sube. He admitted that all the aforesaid four persons had talked to Dalbir in private and the wife of Dalbir was not present at that time. He further admitted that the aforesaid four persons had started instigating Dalbir 7 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 8- to give statement against Sube and he had also come back to the room at that time.
7. The prosecution further examined PW8 Rishi Pal Draftsman, who prepared the scaled site plan Ex.PK. S.I. Chander Pal was examined as PW9, who stated that Ram wife of Dalbir had filed an affidavit before the Court of Additional Sessions Judge (I) Kaithal. It was admitted by Ram Devi in the said affidavit that her husband Dalbir remained frustrated on account of poor financial condition and he committed suicide. Her husband Dalbir had disclosed it, while he was being taken to the hospital. She admitted that there was no dispute with Sube Singh. The prosecution further examined SI Dharam Singh as PW10, who on receipt of dying declaration on 30.05.1999 recorded formal FIR Ex.PE/1 which bears his signatures. He arrested the accused on 04.06.1999. The prosecution further examined S.I. Bishnu Dutt as PW11, who had conducted initial investigation in the present case. He admitted that so many persons from village Balu were present. Rishi Pal, Inder Ex. Sarpanch, Mehar Singh Panch, Ram Devi, Pala and Suresh were there when he reached the spot. Their statement did not reveal that Sube Singh accused had set Dalbir on fire. The prosecution further examined PW12 Dr. Aditya Kumar Sharma, who conducted the postmortem examination on the dead body of Dalbir. He stated as under:-
"Rigormorits was present all over the body. The 8 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 9- postmortem lividity could not be appreciated as parts were involved in burn.
Superficial to deep foul smelling burns were present all over the body except for patches of healthy skin were present over face, scalp, anterior aspect of right and left thigh, right leg, right and left foot, anterior aspect of left leg.
Greenish yellow fus points were present over the burn area. (72% septic burns) The thorax region was normal except skin and superficial facie burnt off at places. The brain meninges, lungs, liver, pancreas, peritoneum, mouth pharynx and oeshophagus, kidneys mucous membrance of stomach and bladder were congested.cThe organs of generation were normal except for external genitalia burnt off at places.
In my opinion the cause of death in this case was septicemia shocks at a result of 72% septic burns. The burns were antemortem in nature and it was a case of thermal injuries. The probable time that elapsed between injuries and death was about 3-4 days and the time between death and postmortem examination was 25 hours. I have seen the original postmortem. It bears my signature. Ex. P.N is the correct carbon copy of the MLR".
8. The prosecution further examined Dr. Parveen Kumar Jain as PW13, who had prepared death summary in the present case. Satish Ahlawat, the then CJM, Kaithal, apepared as PW14 and supported the case of the prosecution. However, he admitted the 9 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 10- presence of certain persons beside Dalbir Singh. He had only orally inquired from the Medical Officer as to whether the patient was fit to make the statement. Still further ASI had already taken an opinion from the doctor in writing and there was no need to take the opinion again.
9. After closer of the prosecution evidence, the statement of Sube Singh was recorded under Section 313 Cr.P,.C. and he stated as under:-
"It is a false case. On the day of occurrence, I was not present in village Balu and rather I was away to tillage Hajwana to meet my maternal uncle. My brother Dalbir Singh used to cultivate his land himself. I never cultivated his land. I was having no dispute with him. My brother Dalbir was habitual drunkard. He used to take liquor in the company of Dariva son of Radha Krishan, Pala s/o Nagar, Suraj Bhan s/o Mai Lal and Sadhu s/o Kuraria of our village. About six months prior to this occurrence i.e., in the month of October, 1998, he tied to commit suicide after taking poisonous tablets as his financial position was bad, and however, as he vomited, he was saved. In the month of June 1998, the aforesaid mentioned four persons had also inflicted injuries to me and however, the matter was compromised due to intervention of Inder Singh Sarpanch of village. All the said four persons had beg pardoned from me in the presence of Inder Singh. I have been falsely implicated in this case by Dalbir Singh deceased due to instigation of these four persons. I am innocent".
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10. In defence, the accused examined Sona Devi sister of Dalbir as DW1. She was sister of Sube Singh accused also. She clearly stated that Dalbir had set himself on fire. Even Samai Kaur mother of Dalbir was examined as DW2 and she also stated that Dalbir had committed suicide by setting himself on fire. Jai Singh, maternal uncle of Dalbir also tried to support the case of the defence. The accused examined Surjit Singh Secretary, Mini Bank, Balu, who stated that as per the account Dalbir had taken loan of Rs. 20,779/- from the bank and as per the ledger for the year 1997, Rs. 20,779/- was outstanding against him. The defence further examined Sat Narain, Record Keeper, who stated that Dalbir had obtained loan of Rs. 17,000/- from his bank. Even, Dalbir had not paid installments of the bank. The defence further examined Satbir Singh as DW6, who clearly stated that Dalbir had earlier also tried to commit suicide by consuming some poisonous substance and had set himself on fire.
11. Learned State counsel vehemently argued that in the present case, Dalbir son of Ram Dhari had suffered 60% burn injuries in the incident and the respondents had set him on fire by pouring kerosene oil on him. On the application moved by the police, Satish Ahlawat, the then CJM, Kaithal had reached the hospital and recorded the dying declaration of Dalbir. She further contended that in the present case, there was no evidence to discredit the dying declaration made by Dalbir, which was recorded by the Chief Judicial Magistrate, 11 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 12- Kaithal and the prosecution had sufficiently proved the case against the respondent by producing the said evidence. She further contended that there was nothing on record to show that the dying declaration was recorded under some suspicious circumstances rather before recording the statement, CJM had satisfied about the mental condition and alertness of making of the statement. Thus, the trial Court had committed grave injustice by clearly overlooking the dying declaration by Dalbir in the instant case and the impugned judgment is legally unsustainable.
12. While supporting the findings recorded by the trial Court, learned defence counsel submitted that the finding recorded by the trial Court were well reasoned and were liable to upheld by this Court.
13. I have heard the learned counsel for the parties at length and with their able assistance, I have gone through the trial Court record carefully.
14. In the present case, the primary contention raised by the learned State counsel is that the dying declaration of Dalbir injured/deceased was recorded by the Chief Judicial Magistrate, Kaithal, who had satisfied himself with regard to the fact that the deceased was in a fit condition to make the statement. She further contended that there was no ground to disbelieve the statement of Dalbir and even the Chief Judicial Magistrate had no reason to 12 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 13- concoct a dying declaration. As per the learned State counsel, the dying declaration in the present case was admissible and could be sole basis of convicting the respondent in the present case.
15. Before we proceed to decide the credibility of the dying declaration made by Dalbir, it would be appropriate to reproduce the law laid down by the Hon'ble Supreme Court in the matter of Jayamma and another Vs. State of Karnataka and its connected case titled as Lachma s/o Chandyanaika and another Vs. State of Karnatka, 2021(3) R.C.R. (Criminal) 50: 2021 AIR (Suprem Court) 2399, where the Hon'ble Supreme Court has summed up the law relating to the admissibility and credibility of a dying declaration in a criminal case and held as follows:-
"14. Before we advert to the actual admissibility and credibility of the dying declaration (Ex.P5), it will be beneficial to brace ourselves of the case law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments. A. In P.V. Radhakrishna. v. State of Karnataka, (2003) 6 SCC 443, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was 13 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 14- held that there is no hard and fast rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factor.
B. In Chacko v. State of Kerala, (2003) 1 SCC 112, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case. C. In Sham Shankar Kankaria v. State of Maharashtra, (2006) 13 SCC 165, it was restated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is 14 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 15-
stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat, (1992) 2 SCC 474 wherein this Court summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria (Supra) reiterated::
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104]);
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar [(1983)1 SCC 211]);
(iii) The Court has to scrutinise 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.
(See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618]);
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264]);
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See 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. (See Ram 15 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 16- Manorath v. State of U.P. [(1981) 2 SCC 654]);
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]);
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769]);
(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. (See 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. (See 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. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])".
16. In the instant case also, no doubt, the case of the prosecution solely rests upon the statement made by Dalbir, injured/deceased but the witnesses of the prosecution themselves had raised serious questions with regard to the averments made by Dalbir 16 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 17- in his dying declaration. Rather the entire prosecution evidence makes the dying declaration inadmissible and apparently Dalbir had made his dying declaration under some external influence or he was tutored by four other persons, who were admittedly present with Dalbir immediately prior to recording of his dying declaration.
17. In the present case, Dalbir was brought to Civil Hospital Kaithal at 03.00 a.m. on 30.05.1999 by PW7 Inder Singh, Ex. Sarpanch, his wife and others. He was medico legally examined by PW1 Dr. D.C. Thukral, who deposed that the police had talked to the patient, after he declared the patient fit to make the statement. Even other witnesses clearly stated that the police had recorded the statement of Dalbir. However, even during the course of trial/investigation, no such statement was placed on record by the police. Still further, PW1 Dr. D.C. Thukral, clearly admitted that several other persons were present near Dalbir. Even, the statement of injured was not recorded by any police officer or any other persons in his presence. However, Rishi Pal, nephew of Dalbir appeared as PW2, who clearly stated that he alongwith others had shifted Dalbir to the hospital and Dalbir had told him that he was under a great financial crisis as he had to pay substantial amounts to different persons and he had himself set him on fire. He further admitted that Dalbir was a drunkard and used to remain in the company of four persons namely, Dariya, Pala, Suraj Bhaj and Sadhu and those four persons had caused 17 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 18- injuries to Sube Singh in June 1998 and the matter was compromised in the presence of Sarpanch. He admitted that immediately prior to recording of the dying declaration, these persons were with Dalbir, since deceased and were close friends of Dalbir. Even, PW7 Inder Singh, Ex. Sapanch clearly stated that on inquiry Dalbir told him that he was under depression as he had to pay substantial amount to different persons and he himself had poured kerosene oil and set himself on fire. Even, PW7 Inder Singh admitted that Dariya, Pala, Suraj Bhan and Sadhu came to the hospital at 04.15 a.m. and these persons were inimical towards Sube Singh. It requires mention that statement/dying declaration of Dalbir was recorded at 05.15 a.m. on the said day. He further admitted that all the aforesaid four persons had talked to Dalbir in private. These four persons started instigating Dalbir to give statement against Sube Singh accused and he had come there. Still further, the prosecution had examined PW9 S.I. Chander Pal, who admitted that Ram Devi wife of Dalbir had sworn an affidavit before him and she had clearly stated that her husband Dalbir remained frustrated on account of his poor financial condition and he had committed suicide due to the said reason. The prosecution further examined PW11 S.I. Bishnu Dutt, who had recorded the statements of several villagers of village Balu and their statements did not reveal that Sube Singh accused had set Dalbir on fire. Thus, it is evident that even during investigation, the averments made by Dalbir 18 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 19- in his dying declaration were found to be false. Apart from that, the respondent examined Sona Devi, sister of deceased as DW1 and his mother Samai Kaur as DW2. Both the witnesses clearly stated that Dalbir had committed suicide and he had attempted suicide earlier also. Even, they clearly stated that Dariya, Pala, Suraj Bhan and Sadhu, who were inimical towards respondent were present with Dalbir immediately prior to making of the dying declaration. DW3 Jai Singh, maternal uncle of Dalbir and DW6 Satbir Singh, brother of Dalbir had also deposed on the similar lines. Apart from that, the defence has examined Surjit Singh, Secretary, Mini Bank, Balu, who stated that Dalbir deceased was under debt. Similarly Sat Narain DW5, Record Keeper, Kalayat Primary Co-operative Agricultural and Rural Development Bank Limited also stated that Dalbir was under
debt from his bank.
18. Thus, from the evidence produced by the prosecution as well as the respondent, it is abundantly clear that immediately prior to making of dying declaration by Dalbir, four persons namely, Dariya, Pala, Suraj Bhan and Sadhu had come to the hospital at 04.15 a.m. and all these four persons had talked to Dalbir, deceased privately.
Even, as per PW7 Inder Singh Ex. Sarpanch, they were instigating Dalbir to give statement against Sube Singh. Even close relatives including the brother, sister, wife and mother of Dalbir had appeared as either defence/prosecution witnesses and all have categorically 19 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 20- deposed that dying declaration was made by Dalbir under the influence of aforementioned four persons and statement was tutored. It has also come on record that all the aforesaid persons namely, Dariya, Pala, Suraj Bhan and Sadhu had earlier caused injuries to Sube Singh, however, the matter was compromised in the presence of the Sarpanch of the village. Thus, the trial Court had correctly disbelieved the dying declaration made by Dalbir in the present case. Apart from that, in the present case, the prosecution had examined PW1 Dr. D.C. Thukral, who had declared Dalbir fit to make statement at 04.00 a.m. on 30.05.1999. In his presence the statement of injured was neither recorded by the police officials nor by any other person. Further, in the present case, the statement of Dalbir, injured was recorded by Satish Ahlawat, CJM, Kaithal at about 05.15 a.m. Satish Ahalawat, CJM, appeared as PW14, who clearly stated that he did not obtain the opinion of the doctor in writing with regard to the fitness of Dalbir. Thus, there is nothing on record to suggest that PW14 had taken a medical opinion with regard to the fit state of mind of the injured as he had suffered burn injuries in the present case.
19. Even otherwise, we have carefully perused the findings recorded by the trial Court and the trial Court has correctly refused to place reliance on the dying declaration made by Dalbir, since deceased, as he had made statement under the influence of four persons, namely, Dariya, Pala, Suraj Bhaj and Sadhu, who were 20 of 21 ::: Downloaded on - 22-07-2024 05:38:25 ::: Neutral Citation No:=2024:PHHC:084423 CRA-D-146-DBA of 2003 - 21- admittedly present before making the statement to the CJM Kaithal. Apart from that, such dying declaration could not have been acted upon without an independent corroboration. Further, all the witnesses of the prosecution further proved on record that Dalbir had committed suicide as he was facing financial hardships and was under debt from various financial institutions and other persons. Even there is no illegality or perversity in the impugned judgment passed by the trial Court and we found no reason to overturn the findings recorded by the trial Court. The appeal is, accordingly, ordered to be dismissed.
20. The impugned judgment dated 03.04.2002 passed by the Additional Sessions Judge (I) Kaithal is upheld.
21. All pending applications, if any, are disposed off, accordingly.
22. Trial Court record be sent back to the trial Court.
(GURVINDER SINGH GILL) JUDGE (N.S.SHEKHAWAT) 05.07.2024 JUDGE amit rana Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 21 of 21 ::: Downloaded on - 22-07-2024 05:38:25 :::