Punjab-Haryana High Court
Shyam Lal Son Of Baru Ram vs State Of Haryana on 8 August, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-189-DB OF 2005 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO.D-189-DB OF 2005
Date of decision: August 08, 2013
Shyam Lal son of Baru Ram, resident of Chanana Colony,
Naraingarh, District Ambala.
.................Appellant
versus
State of Haryana
.............Respondent
CORAM:HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:-Mr. N.D. Achint, Advocate for the appellant.
Mr. H.S. Sran, Addl. Advocate General, Haryana for the respondent.
S.P. BANGARH, J The case of the prosecution is that Sarla-deceased was married to the appellant-Shyam Lal about 10 years ago. Prior to the occurrence, they had two children i.e. a daughter aged 7 years and a son aged 5 years. On the night of 28.10.2001, appellant (Shyam Lal) had a fight with his younger brother Gurdas. Sarla-deceased intervened at which appellant started beating her. Appellant also told her (Sarla-deceased) to be the wife of his brother and said that Gurdas was her husband. Then the appellant poured kerosene oil on his wife Sarla and set her on fire. When she ran outside, her Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -2 - brother-in-law (Gurdas) poured a bucket of water on her and covered her with a blanket. Thereafter, the appellant also tried to save her and in that process, he also received burn injuries. Both, Sarla- deceased and the appellant were removed to Civil Hospital, Naraingarh, where they were medically examined. Since, Sarla- deceased had 100 per cent burns, while the appellant had 45 per cent burns, both were referred to Post Graduate Institute of Medical Sciences (PGI - for short), Chandigarh and an intimation, thereof, was sent from PGI to Police Station Naraingarh.
As no conveyance was available at night, ASI Ishwar Singh (PW-9) of Police Station Naraingarh went to PGI, Chandigarh on the next day and obtained opinion of the doctor about the fitness of both the injured to make their statements. Both of them were declared fit to make statements by the doctor. Then ASI Ishwar Singh (PW-9) went to the house of Duty Magistrate Ms. Jatinder Walia (PW-8), Judicial Magistrate Ist Class, Chandigarh, in Sector 19-C, who came to PGI and after obtaining opinion about the fitness of Sarla- deceased, recorded her statement in english Ex.PF/4, which has been reproduced (supra). As ASI Ishwar Singh (PW-9) did not immediately receive the copy of the statement of Sarla-deceased, he also recorded her statement Ex.PC, that was sent to the Police Station Naraingarh, where FIR Ex.PC/1 was registered under Section 307 of the Indian Penal Code (IPC - for short).
On 02.11.2001, Sarla succumbed to her burn injuries at PGI, Chandigarh and intimation in this regard was received in Police Sunder Sham Station Naraingarh. Then offence under Section 302 IPC was added 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -3 - in the FIR already registered under Section 307 IPC. ASI Ishwar Singh (PW-9) went to PGI and prepared inquest report Ex.PM and then sent the corpse of Sarla-deceased to the mortuary for autopsy, on 03.11.2001. Appellant was arrested in this case on 19.02.2002.
After completion of investigation, Station House Officer of Police Station Naraingarh, instituted police report under Section 173 Cr.P.C against the appellant before the learned Illaqa Magistrate to the effect that it appeared that he had committed an offence punishable under Section 302 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant by the learned Illaqa Magistrate, who later committed the case to the Court of Session, at Ambala, where charge under Section 302 IPC was framed against the appellant, whereto, latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, the prosecution examined, as many as, 11 witnesses who testified as under: -
PW-1 Dr. Chander Parkash testified that on 03.11.2001, he alongwith Dr. Dalbir Singh conducted the autopsy on the corpse of Sarla-deceased aged about 27 years, resident of Ward No. 2, Chanana Colony, Naraingarh. The corpse was brought by ASI Ishwar Singh (PW-9) and was identified by Krishan Chand and Pal Chand. He also testified that Sarla-deceased was admitted in PGI on 28.10.2001 and died on 02.11.2001 at 11.35 a.m.. He further Sunder Sham deposed that they found as follows:
2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -4 - "Superficial to deep foul smelling septic burn injuries present all over the body except scalp (only singeing of scalp hair was present at places over frontal and temporal region of scalp on both side) and both soles and some patches of healthy skin were present over pertnial region and over both feet.
Base of the burnt area was having greenish, yellowish, pus pus points at places. 96 per cent septic burn injury.
Brain, larynx, trachea, lungs, liver, spleen and kidneys were congested and heart and pancreas were apparently normal.
Uterus was found empty and overy was apparently normal."
He further testified that in their opinion, the cause of death was septicemia, as a result of 96 per cent septic burn injuries. He proved the autopsy report Ex.PA of Sarla-deceased. He also testified that after autopsy, they handed over to the police; photocopy of autopsy report, body of deceased duly stitched, 22 police inquest papers, two photographs of the corpse. He further testified that the time elapsed between injury and death was around five days and between death and autopsy 24 hours and 45 minutes.
PW-2 Constable Ram Saran testified that on 20.02.2002, on pointing out of ASI Ishwar Singh (PW-9). he prepared the scaled site plan Ex.PB.
PW-3 ASI Randhir Singh testified that on 29.10.2001, he was posted in Police Station Naraingarh and on that day, he recorded the formal FIR Ex.PC/1 on the basis of ruqa Ex.PC. He Sunder Sham further testified that after registration of FIR, he made endorsement 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -5 - Ex.PC/2 on the statement Ex.PC.
PW-4 SI Karta Ram testified that on 29.10.2001, he was posted as SHO, Police Station, Naraingarh and on 19.02.2002, he arrested the appellant in this case and after completion of investigation, he prepared a report under Section 173 Cr.P.C. He also testified that he also recorded the statement of draftsman under Section 161 Cr.P.C.
PW-5 HC Bani Singh brought the daily diary register of Police Station Naraingarh containing entries of 28/29.10.2001 and 02.11.2001. He proved the carbon copies, thereof, Ex.PD and Ex.PE respectively.
PW-6 Raj Kumar testified that his eldest daughter Sarla- deceased was married with the appellant present in Court about 10- 11 years ago and two children were born out of their wedlock, who are presently living with their grandmother. He further testified that the appellant used to raise quarrel with his wife Sarla (deceased) under the influence of liquor and on 28.10.2001 he received a telephonic message from the neighbour of the appellant that they were taking his daughter to PGI, Chandigarh and he should reach there. He alongwith with his wife Ranjana and son Sham Lal (PW-7) went to PGI, Chandigarh and on their asking, his daughter told them that the appellant (Sham Lal) and his brother Gurdas had sprinkled kerosene oil on her and set her ablaze. He further testified that on 02.11.2001, his daughter succumbed to burn injuries in PGI, Chandigarh. He also testified that his daughter was killed by Sham Sunder Sham Lal (appellant) by setting her on fire after sprinkling kerosene oil. 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -6 - PW-7 Sham Lal testified that Sarla-deceased was his sister and from the beginning of marriage, appellant used to harass her and many a time, she (Sarla-deceased) told them that the appellant used to give her beatings and many a time, they went to the house of the appellant and tried to counsel him. He further testified that on 28.10.2001 at about 9.00 or 9.30 p.m., he received a telephonic message that his sister (Sarla-deceased) had been set on fire and taken to Civil Hospital, Naraingarh. After a short while, he again received a telephonic message that the condition of his sister was serious and she was being taken to PGI, Chandigarh and then, he, his elder brother Ram Lal, his parents, uncle and other relatives went to PGI Chandigarh and his sister was completely burnt.
PW-7 further testified that his brother-in-law (appellant) was also present there in burnt condition and he asked him, as to how the occurrence took place, the appellant told him that his sister had caught fire on account of bursting of stove and he himself (appellant) was burnt while trying to save his wife (Sarla-deceased). Then he (PW-7) enquired from his sister (Sarla-deceased), who told them that she has been set on fire by the appellant (Sham Lal) and his brother Gurdas. He further testified that after some time, ASI Ishwar (PW-9) came to PGI, Chandigarh and he told him about the occurrence. He further testified that the police never recorded his statement in this case.
PW-8 Ms. Jatinder Walia, testified that on 29.10.2001, she was posted as Judicial Magistrate Ist Class, Chandigarh and on that Sunder Sham day, an application Ex.PF was moved by ASI Ishwar Singh (PW-9), 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -7 - whereon, she made her endorsement Ex.PF/1 about the receipt of application and she reached PGI, Chandigarh on the same day, at 9.30 a.m. regarding which she made endorsement Ex.PF/2. She further testified that on her asking, patient Sarla was declared by the doctor fit to make her statement as per his endorsement Ex.PF/3 and then she recorded the statement Ex.PF/4 of Sarla-deceased. The statement was made by Sarla-deceased in hindi but she translated and recorded it in english and that she explained to Sarla-deceased, who put her thumb impression, thereon. She further testified that Sarla-deceased remained fit during the recording of her statement. She further testified that the statement of Sarla-deceased was recorded in the presence of doctor, who made his endorsement Ex.PF/5 about the fitness of the patient. She further testified that after recording the statement, she gave a certificate Ex.PF/6 at the foot of it and then she passed an order Ex.PF/7 directing the ahlmad of her Court to seal the statement and sent it to the concerned Illaqa Magistrate. She further testified that before the statement was sealed, a copy, thereof, was allowed to be given to ASI Ishwar Singh (PW-9) on his application Ex.PF/8. She also testified that order allowing the delivery of copy is Ex.PF/9.
PW-9 ASI Ishwar Singh also testified that on 28.10.2001, he was posted as Investigating Officer and on that day, he received a ruqa Ex.PG from General Hospital, Naraingarh about the arrival of Sarla-deceased and appellant in the hospital in burnt condition. Both the above-named patients had already been referred to PGI, Sunder Sham Chandigarh. He also testified that he had no means of conveyance 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -8 - at night, he went to PGI Chandigarh on the next day and he received ruqas Ex.PH and Ex.PJ from Police Post, PGI Chandigarh, then he moved an application Ex.PK to the doctor for obtaining his opinion regarding the fitness of both the patients to make their statements. The doctor in his opinion Ex.PK/1 declared both the patients fit to make their statements. He further testified that then he moved an application Ex.PF before the Duty Magistrate, Chandigarh for recording the statement of both the patients and Smt. Jatinder Walia, Duty Magistrate came to PGI Chandigarh and after obtaining the opinion of the doctor about the fitness of the patients, recorded the statement of Sarla-deceased Ex.PF/4. He further testified that after recording the statement of Sarla-deceased, he made a request Ex.PF/8 about obtaining the copy of statement of Sarla-deceased. He further testified that request Ex.PF/8 was allowed and he received a copy of the statement as per his endorsement Ex.PF/10 and in the hospital Duty Magistrate told him to obtain the copy of the statement from the Court.
PW-9 (ASI Ishwar Singh) further testified that he recorded the statement Ex.PC of Sarla-deceased and sent the same to Police Station Naraingarh alongwith his endorsement Ex.PF/3 for registration of the case. He also testified that he recorded the statements of Raj Kumar, Ranjna, Ram Lal and Sham Lal under Section 161 Cr.P.C. and then he went to the Court premises Chandigarh from where, he obtained the copy of statement of Sarla- deceased. He further testified that a constable alongwith the file of Sunder Sham this case met him at bus stand Chandigarh. Then he went to the 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -9 - place of occurrence at Naraingarh, where he inspected the spot and prepared rough site plan Ex.PL on the pointing out of Gurdas brother of the appellant. He further testified that on 02.11.2001, he was present at bus stand of Naraingarh. Constable Raj Pal came to him and told him that Sarla-deceased had died due to burn injuries and he gave him a copy of report Ex.PE to that effect. He further testified that then offence under Section 302 IPC was added and then he alongwith Constable Raj Pal went to PGI Chandigarh, where he prepared inquest report Ex.PM and sent the corpse of Sarla to the mortuary for autopsy and after autopsy on 03.11.2001, corpse of Sarla-deceased was handed over to her relatives for cremation. He further testified that on return to Naraingarh, he handed over the file to SHO of Police Station Naraingarh and he also testified that he recorded the statement of draftsman, who prepared the scaled site plan Ex.PB.
PW-10 Dr. Ramesh Kumar also testified that on 28.10.2001, he was posted in General Hospital, Naraingarh and on that day, he medically examined Sarla Devi wife of Sham Lal, 35 years, female and found as follows:
"The patient was conscious. Pulse B.P. was not recordable. Pupil were normal and normally reacting to light. She was having varying degree of burns all over the body. There was peeling of skin at places and the underlying area was redent. The injuries were 100% burns and the nature of injuries was dangerous to life and the duration of the injuries was within six hours."
He also testified that Sarla Devi was accompanied by her Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -10 - sister-in-law Seema wife of Kamal and proved the copy of MLR Ex.PN of Sarla-deceased. He further testified that on the same day, he examined Sham Lal (appellant), 37 years male and found as follows:
"He was conscious. Pulse B.P. could not be recorded because of burns. Pupil were normal in size and normally reacting to light. He was having varying degree of burns over the face, front of chest, abdomen and both the upper limbs. There was peeling of skin at places and reddening of underlying skin. The patient was having 45% burns, which were suffered within duration of six hours. The nature of injury was kept under observation".
He also testified that Sham Lal was also accompanied by his sister Seema and proved the copy of MLR Ex.PQ of Sham Lal (appellant). He further testified that he sent ruqa Ex.PG to SHO, Police Station Naraingarh about the arrival of Sarla Devi. and Sham Lal (appellant) in General Hospital, Naraingarh on 28.10.2001, who were found having 100% and 45% burns respectively. He also proved the copies of their MLRs Ex.PN and Ex.PQ respectively.
PW-11 Dr. Ramandeep Singh Jaggi testified that on 29.10.2001, he was posted in PGI Chandigarh and on that day, on the asking of the Magistrate, he gave his opinion Ex.PF/3 declaring Sarla fit to make her statement and later statement of Sarla was recorded in his presence and after the statement was over, he gave certificate Ex.PF/5 to the effect that Sarla remained fit during the recording of her statement. Thereafter, prosecution evidence was closed.
Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -11 - After the closure of prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case. He gave his own version that there was an accidental fire in the house and in that, his wife Sarla got burnt and in order to save her, he also got burnt.
Appellant was called upon to enter in defence and he closed the same without examining any witnesses in defence.
After hearing both the sides, as also, after perusing the evidence and documents on record, the learned trial Court vide impugned judgment of conviction dated 16.11.2004, convicted the appellant for commission of offence punishable under Section 302 IPC and vide impugned order of sentence dated 16.11.2004 sentenced him to undergo imprisonment for life and to pay a fine of `2500/- and in default of payment of fine to further undergo imprisonment for a period of six months for commission of offence punishable under Section 302 IPC. Period of imprisonment already undergone by the appellant in jail was ordered to be set off towards the substantive sentence awarded to him. Aggrieved, there against, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of the offence punishable under Section 302 IPC .
Learned counsel for the appellant contended that the dying declarations Ex.PF/4 and Ex.PC were recorded by the learned Magistrate and the police officer respectively and the learned trial Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -12 - Court erroneously believed those albeit the fact that neither one of them was written in the language of the deceased nor these were written in question-answer form. It was also contended that ASI recorded the dying declaration Ex.PC of the deceased (Sarla) in hindi and did not seek the opinion of the doctor about her fitness to make her statement. It was also contended that the opinion taken by ASI Ishwar Singh (PW-9) before recording the dying declaration at 7.15 a.m. was not be considered, as a valid opinion.
Learned counsel for the appellant further contended that a Judicial Officer before proceeding to record the dying declaration should seek the opinion of the medical officer regarding the fitness of the maker to make statement and no such opinion was recorded. He also contended that the learned trial Court failed to appreciate that the appellant had also suffered 45% burn injuries, as he was trying to save his wife Sarla-deceased, therefore, this circumstance was sufficient to establish the innocence of the appellant, who was saving his wife. He further contended that there was no eye witness to support the case of the prosecution. He also contended that non- examination of Gurdas by the prosecution, has also created a doubt in the prosecution version and, therefore, the appellant was entitled to be acquitted. So, he contended that the appellant may be acquitted of the offence punishable under Section 302 IPC by according him benefit of doubt.
Learned Additional Advocate General, Haryana contended that the learned trial Court rightly convicted and sentenced the Sunder Sham appellant on the basis of dying declaration, which was only evidence 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -13 - available at that time, as Gurdas being the brother of the appellant might not have supported the case of the prosecution. So, he contended that the learned trial Court rightly relied upon the dying declaration for basing conviction and sentence upon the appellant vide impugned judgment of conviction and order of sentence dated 16.11.2004, that may be upheld and affirmed, as these do not suffer from any illegality or impropriety.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties, as also, perused the evidence and documents placed on the record of the learned trial Court with their assistance.
The first question, which arises for consideration is, as to whether the conviction upon the appellant could be based solely on the dying declaration Ex.PF/4 of the deceased-Sarla.
Reliance can be placed upon Parbin Ali and another v. State of Assam; 2013 AIR (SC) 542, passed by Hon'ble Supreme Court of India, wherein, it was held as under:
The conviction can be founded solely on the basis of dying declaration if the same inspires full confidence;
Conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts, in arriving at the judgment of conviction, shall look for some corroborating evidence;
Court, in order to satisfy, whether the deceased was in a fit mental condition to make the dying declaration, looks up to Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -14 - the medical opinion - But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail;
A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite;
A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration;
When it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification to discard the credibility of such a dying declaration.
The Hon'ble Supreme Court of India in K. Ramachandra Reddy and another v. The Public Prosecutor; 1976 (3) SCC, 618, held that dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -15 - 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. 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.
The Hon'ble Supreme Court of India in Laxman v. State of Maharashtra; 2002 (6) SCC, 710, held that where declarant was in a fit state of mind to make the declaration but where the eye witnesses' evidence (in the present case, the evidence of the Magistrate who had recorded the dying declaration) to that effect was available, mere absence of doctor's certification as to the fitness of the declarant's state of mind, would not ipso facto render the dying declaration unacceptable. It was also held that evidentiary value of such a declaration would depend on the facts and circumstances of the particular case.
The Hon'ble Supreme Court of India in Ranjit Singh v. State of Punjab; 2006 (13) SCC, 130, held that dying declaration can be sole basis for conviction, if reliable, if suspicion, court can look for some corroborating evidence.
Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -16 - The Hon'ble Supreme Court of India in Munnu Raja and another v. The State of M.P., 1976 AIR (SC), 2199, held that statement by victim recorded as FIR could be treated as dying declaration. Such statement is admissible under Section 32 (a) of Evidence Act and corroboration is not necessary. It was also held that law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
The Hon'ble Supreme Court of India in Paniben v. State of Gujarat; 1992 (3) RCR (Criminal) 552, held that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. It was also held that if the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration.
The Hon'ble Supreme Court of India in Puran Chand v. State of Haryana; 2010 (91) AIC 226, held that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.
The Hon'ble Supreme Court of India in State of Uttar Pradesh v. Ram Sagar Yadav and others; 1985 (1) RCR (Criminal) 600, held that if dying declaration is true, no corroboration, thereof, arises. It was also held that where surrounding circumstances are not clear or convincing, court may look for corroboration to the dying declaration. It was held that it is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. There is not even a rule of prudence Sunder Sham 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -17 - 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.
The Hon'ble Supreme Court of India in Krishan v. State of Haryana; 2013 (2) RCR (Criminal) 88, held that the accused can be convicted solely on the basis of dying declaration, if it is true and correct and the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, dying declaration alone can form the basis for the conviction of the accused.
The law laid down in the aforementioned judgments would candidly reveal that the conviction, as has been done in the case in hand, can be based upon dying declaration alone. Now, it is to be seen, as to whether the dying declaration in this case was voluntary, truthful or not. It may be mentioned here that the dying declaration Ex.PF/4 was made by Sarla-deceased before Ms. Jatinder Walia (PW-8) and Sarla-deceased also made another dying declaration Ex.PC to ASI Ishwar Singh (PW-9). The dying declaration Ex.PF/4 Sunder Sham contained detailed circumstances, whereunder, the appellant picked 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -18 - up quarrel with his younger brother Gurdas at his house on the night of 28.10.2001. When this fight was going on, Sarla-deceased intervened and the appellant started beating her and stated that she was the wife of his brother Gurdas. Thereafter, the appellant poured kerosene oil on her and set her ablaze. Sarla-deceased in her dying declaration Ex.PF/4 stated that when she ran outside, her brother-in- law poured a bucket of water on her and covered her with a blanket. Thereafter, her husband tried to save her and in that process, he (appellant) also suffered burn injuries. She also stated that her husband used to given her beatings after consuming liquor.
Ms. Jatinder Walia (PW-8) before recording the statement of Sarla-deceased obtained the opinion of the doctor about her fitness to make her statement vide endorsement Ex.PF/2. She was declared fit by Dr. Ramandeep Singh Jaggi (PW-11) to make her statement vide endorsement Ex.PF/3. Then the statement Ex.PF/4 of Sarla-deceased was recorded in the presence of Dr. Ramndeep Singh Jaggi (PW-11), who remained present till the completion of statement of Sarla-deceased. Dr. Ramandeep Singh Jaggi (PW-11) gave another certificate Ex.PF/5 to the effect that Sarla-deceased remained fit during the course of recording of her statement. Dr. Ramdeep Singh Jaggi (PW-11) also made statement in this regard that could not be shattered during cross-examination.
The statement of Ms. Jatinder Walia (PW-8) also could not be shattered. No motive can be ascribed to these witnesses to testify falsely in this case, especially when they are not alleged to Sunder Sham have any animus or hostility against the appellant prior to the 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -19 - occurrence. In these circumstances, it is satisfied that when Sarla- deceased made her dying declaration Ex.PF/4, she was in a fit state of mind. Dr. Ramandeep Singh Jaggi (PW-11) certified that she was in a fit state of mind to make statement and he remained present during the recording of statement of Sarla-deceased by Ms. Jatinder Walia (PW-8) and at the time of conclusion of the statement, Dr. Ramandeep Singh Jaggi (PW-11) certified that Sarla-deceased remained in a fit state of mind during the course of recording of her statement.
So, in this view of the testimony, it can be safely held that Sarla-deceased was in a fit state of mind. No circumstance has come on the record to come to a different conclusion that the deceased was not in a fit state of mind, when her dying declaration Ex.PF/4 was recorded by Ms. Jatinder Walia (PW-8). According to K. Ramachandra Reddy and another's case supra, solemnity and sanctity have to be attached to the dying declaration Ex.PF/4, for Sarla-deceased on the verge of death was not likely to tell lies or to concoct a case, so as to implicate an innocent person.
The occurrence had taken place in the house of the appellant in the presence of Gurdas brother of the appellant. Police did not join Gurdas during investigation. Possibly, he may not have supported the prosecution version. He would not have deposed against his own brother (appellant). Even the appellant has not brought him to witness box in his defence, that the occurrence has not taken place in the manner alleged in the dying declaration Sunder Sham Ex.PF/4. Even, it is not the case of the appellant that Gurdas or 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -20 - someone else put Sarla-deceased on fire.
According to the appellant, it was an accidental fire, wherein, he and his wife Sarla-deceased were burnt. Strange enough, he has not narrated the manner in which the accidental fire occurred. He has not explained, as to what was the mode of cooking food in the home, whether it was cooked with wood or kerosene oil or through LPG gas. If it would have been accidental fire, the police would have recovered stove or LPG gas etc, which were the mode of accident. When the accidental fire has not been proved by the appellant, the onus shifts upon him to explain as to how his wife received 100% burns.
It is now his case that his brother or someone else put her on fire. He himself was burnt to 45% in this fire incident. It is not his case that his wife Sarla-deceased committed suicide. He has not stated in his examination under Section 313 Cr.P.C, that he did not suspect illicit relations between his deceased-wife (Sarla) and his brother Gurdas Possibly, illicit relation between Gurdas and the deceased provoked the appellant to set her ablaze. It appears that illicit relations between the deceased-Sarla and Gurdas could not be swallowed by the appellant and that provoked him to set the deceased on fire and when he realized his folly, he tried to save the deceased.
If the appellant would not have been guilty of setting his wife Sarla-deceased ablaze, in that event, he would have brought Gurdas Sunder Sham in his defence and on the basis of Gurdas's statement, he could be 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -21 - exonerated of charge of setting his wife Sarla-deceased on fire.
Even, on the night of 28.10.2001 the father, brother and other relatives of Sarla-deceased reached PGI Chandigarh. They enquired Sarla-deceased about the manner in which she received 100% burns. It has come on record that the deceased told her father PW-6 (Raj Kumar) and brother PW-7 (Sham Lal), that appellant and his brother Gurdas sprinkled kerosene oil on her and set her ablaze. The participation of Gurdas is ruled out in view of the dying declaration Ex.PF/4 by Sarla-deceased in setting her ablaze. However, PW-6 (Raj Kumar) in his examination-in-chief testified that his daughter had been killed by the appellant by setting her on fire, after sprinkling kerosene oil on her.
So, the narration of incident by Sarla-deceased to PW-6 (Raj kumar) and PW-7 (Sham Lal) is an oral dying declaration, that corroborates the dying declaration Ex.PF/4 made by the deceased- Sarla before Ms. Jatinder Walia (PW-8). In other words, Ex.PC and Ex.PF/4 are not the only documents/evidence against the appellant. Whatever was stated by Sarla-deceased to PW-6 (Raj Kumar) and PW-7 (Sham Lal) before her death, is also relevant and that can be used for corroborating her dying declarations Ex.PC and Ex.PF/4.
Appellant himself was burnt to the extent of 45%. Evidence of PW-3 (ASI Randhir Singh), PW-6 (Raj kumar) and PW-7 (Sham Lal) cannot be repelled and the same may be used for corroborating the dying declarations Ex.PC and Ex.PF/4 made by the deceased before PW-9 (ASI Ishwar Singh) and PW-8 (Ms. Jatinder Walia) Sunder Sham respectively. The mere fact that the appellant himself was burnt in 2013.09.06 15:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-189-DB OF 2005 -22 - the fire cannot be a ground for exonerating him from the liability of commission of murder of Sarla-deceased. The case of the appellant cannot be brought in the ambit of Section 304 IPC, as the deceased received 100% burns. It was a gruesome incident and the appellant knew full well that by his this act, Sarla-deceased would not survive.
Dr. Chander Parkash (PW-1) omitted to mention the presence of kerosene oil on the body and clothes of the deceased- Sarla, but that cannot be made a ground for rejection of prosecution version, especially when the learned counsel for the appellant before the learned trial Court did not put any question to him about the presence or absence of kerosene oil on the body or clothes of the deceased (Sarla). There is, thus no merit in the contentions raised by the learned counsel for the appellant, that are, hereby, repelled.
There is, thus, no illegality or impropriety in the impugned judgment of conviction and order of sentence dated 16.11.2004, which are, hereby, upheld and affirmed.
Resultantly, the appeal fails and is, hereby, dismissed.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
August 08, 2013
sham
Sunder Sham
2013.09.06 15:52
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh