Criminal Appeal No.778-DB of 2007 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 778-DB of 2007
Date of decision: 22.01.2013
Sanjay son of Ajit Singh, resident of Village Sanjarwas, District Bhiwani
………………….Appellant
Versus
State of Haryana
…………….Respondent
CORAM: HON’BLE MR. JUSTICE SURYA KANT
HON’BLE MR. JUSTICE R.P. NAGRATH
Present: Mr. Brijender Kaushik and Mr. Jitender Malik, Advocates for the appellant
Mr. R.D. Sharma, Deputy Advocate General, Haryana.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the reporter or not ?
3. Whether the Judgment should be reported in the Digest ?
R.P. NAGRATH, J.
The appellant has been convicted under Section 304-B of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to pay fine of Rs. one lac, in default thereof Criminal Appeal No.778-DB of 2007 2 to further undergo rigorous imprisonment for three and half years vide judgment/order passed by the Additional Sessions Judge, Bhiwani dated 1/ 4-08-2007. 75% out of the amount of fine, was payable by him as compensation under Section 357(4) Cr.P.C. to the parents of Babita, the victim. The appellant faced trial on the charge under Section 304-B IPC and in the alternative for offence under Section 302 read with Section 34 IPC along with his mother, Pushpa Devi and brother Yogender alias Yogesh. The other charges framed against them were for offences under Sections 406 and 498-A read with Section 34 IPC. The trial Court acquitted the co-accused but the appellant was convicted of the charge under Section 304-B IPC and sentenced as aforesaid.
2. The prosecution version is that the appellant was married to deceased Babita on 30.4.2005 and they have a female child from the wedlock. The child was about seven months old at the time of
occurrence. On 28.8.2006, Babita was repairing clothes on sewing machine, when her daughter started crying. She told appellant to hold the child but he remarked: “Why you have taken responsibility of stitching clothes of the villagers. You should rather take care of the child and keep the clothes aside.” Babita at that time was stitching clothes of her real aunt (Bhua) but the appellant told his wife as to why she agreed to do this work. The appellant started abusing Babita and slapped her. The appellant poured kerosene on her person and she started abusing and came rushing towards the street but was intercepted by her husband (appellant) and brought in the courtyard. She was caught hold by the appellant and his brother and Criminal Appeal No.778-DB of 2007 mother-in-law set her ablaze with a match stick. The appellant and other accused ran away from the spot. The neighbours were attracted and she was picked up from there and brought by those people in Government Hospital( G.H.), Bhiwani.
3. The above facts have appeared in the statement of Babita deceased recorded by Investigating Officer while she was admitted in the PGIMS, Rohtak. She also stated that earlier on two occasions
about three months back she brought cash amount of Rs.10,000/- from her father to meet demand of the appellant. The appellant also used to make demand of motor cycle and more cash amount and on that account she was being harassed.
4. A telephonic message was received by ASI Bhagwan Dass (PW16) Investigating Officer (IO) from the Police Post, GH Bhiwani on 28.08.2006 about admission of Babita wife of the appellant with burn injuries. He went to the Hospital and was informed that the victim had been referred to the PGIMS, Rohtak. PW16 reached there and on his application Ex.PM, the doctor concerned made endorsement Ex. PN/1 at 10.20 pm on 28.8.2006 that the patient was not fit to make a statement. On 29.08.2006 at about 3.45 pm, the doctor declared victim fit to make statement vide
endorsement Ex.PN/2.
5. PW16 then made application to the Duty Magistrate, Rohtak for recording statement of the victim but the request was declined by passing the following order Ex.PS/1, recorded at 4.30 pm:
“Applicant ASI Bhagwan Dass of P.S. Bond Kalan in Criminal Appeal No.778-DB of 2007 person. An application for recording statement of Babita has been moved by applicant before me being Duty Magistrate. The application is accompanied by certificate of doctor that Babita w/o Sanjay is fit to make the statement. However, a perusal of application shows that no FIR has yet been lodged nor any ruqqa has been sent for registration of FIR. The application does not disclose the commission of any cognizable offence. The Magistrate comes into picture only after registration of a case on happening of a cognizable offence and as investigation as provided under Section 164(1) Cr.P.C. has not yet been started, so the present application is premature and does not require any judicial action. Hence, the application is returned in original to the applicant. However, in case any FIR is lodged in the matter, the police may approach the Magistrate, if needed, for further necessary action.” That is really a disturbing feature which we would like to deal at a later stage.
6. IO then proceeded to record statement of the victim (Ex.PJ) on the basis of which FIR for offences under Sections 498-A and 307 read with Section 34 IPC was registered. The Police party
visited the spot, prepared rough site plan and also took into possession the burnt pieces of sari of the victim and a trouser of the appellant, which were smelling kerosene. The broken pieces of bottle Criminal Appeal No.778-DB of 2007 supposedly containing kerosene were also lifted. These articles were prepared into sealed parcels vide memo Ex.PB. Two photographs of the place of occurrence Ex.P1 and Ex.P2 were taken on 29.8.2006 itself.
7. Babita ultimately succumbed to the burn injuries in PGIMS on 11.9.2006 and offence under Section 302 IPC was added. Postmortem examination on her dead body was also conducted.
Statement of Babita (Ex. PJ) is thus relied upon by the prosecution as her dying declaration.
8. The appellant was arrested by the police on 12.9.2006. The co-accused were arrested on 28.09.2006 and they made disclosure statements before the police in pursuance whereof dowry articles as per list Ex. PX were recovered from their residence.
9. The prosecution in all examined 16 witnesses. The plea of the appellant under Section 313 Cr.P.C. is that his wife suffered injuries by accidental fire. The appellant tried to save her and in the
process received burn injuries on his hands. He took his wife Babita to the hospital immediately. According to appellant the victim was unable to speak because of the burn injuries. The appellant himself appeared in his defence as DW1.
10. Learned appellant’s Counsel has challenged the findings recorded by learned trial Court on the following contentions:-
(i) The dying declaration is unreliable piece of evidence.
(ii) The co-accused having been acquitted on almost similar evidence, the same benefit deserves to be Criminal Appeal No.778-DB of 2007 6 extended to the appellant: and
(iii) That the other evidence comprises of the statements of parents of the deceased which cannot be accepted as both were declared hostile to the prosecution.
11. Per contra the State Counsel urged that dying declaration is reliable piece of evidence and the factum of demand of dowry and the harassment on that account has been consistently stated by the parents of the victim.
12. We have perused the record and thoughtfully considered the rival contentions.
13. The ingredients necessary for application of Section 304- B IPC are:
(1) that the death of a woman is caused by any burns or bodily injuries or occurs otherwise than under normal circumstances;
(2) within seven years of her marriage;
(3) It must be shown that soon before the death she was subjected to cruelty by her husband or any relative of the husband in connection with the demand of dowry.
14. The deceased was married on 30.4.2005 and the incident took place just about one and half years of marriage. Death of Babita was caused by burns admittedly. The basic question that has
been raised is whether the death of Babita was due to accidental fire as pleaded by the appellant ? The appellant was admittedly Criminal Appeal No.778-DB of 2007 7 present in the house at the time of occurrence, though as per defence plea he was in the Court yard and heard cries of his wife as “aag lag gai-aag lag gai” that is, she was burnt by fire. It is not the appellant’s plea that his wife was working on a kerosene stove for cooking food that there could be chances of accidental fire. The appellant rather testified that his relations with his wife were good. In cross-examination as DW1, the appellant stated that he does not know if on that day his wife was stitching clothes. This ignorance shown by the appellant is seriously doubted.
15. PW16 IO, visited the spot on 29.8.2006 and conducted necessary proceedings. He took into possession one bottle, pieces of burnt sari and one trouser all smelling kerosene. These articles
were duly sealed by the IO and sealed parcels were sent to the Forensic Science Laboratory and Ex.PM is the report of FSL. The opinion of expert is that kerosene residues were detected from all
these articles including trousers of the appellant which was lying in the house. This brings an important circumstance establishing presence of the appellant at the time, incident of fire took place. No suggestion is put to IO nor stated by the appellant himself as DW1 or during his examination under Section 313 Cr.P.C. that there was any such article lying at the spot giving rise to an assumption of the accidental fire. Therefore the first two ingredients of Section 304-B IPC are established.
16. For the third ingredient of the offence, the State relies upon the contents of statement of the victim Ex.PJ in the nature of dying declaration. There is otherwise also convincing corroborative
Criminal Appeal No.778-DB of 2007 8 evidence to prove this ingredient of offence.
17. PW3 Fakir Singh father of the victim stated that he married his two daughters in the same family. Babita deceased was elder and married with the appellant and his younger daughter Manju
was married with Yogesh co-accused, who has since been acquitted. PW3 also stated that though the marriages of Manju and Babita were performed on the same day, Manju was still not sent to her marital home and that part of the statement of PW3 is not even disputed.
18. PW3 categorically stated that the appellant was a drunkard and used to maltreat Babita, deceased. The appellant demanded cash amount of Rs.10,000/- from PW3 on three occasions and the money was paid to him. On the birth of female child to Babita the appellant raised demand of a motor-cycle at the time of ‘chhuchhak’ ceremony, which evidence stands corroborated from the
statement of deceased relied upon as dying declaration. Santra PW4, mother of the victim similarly stated that the appellant used to taunt his daughter that her parents have not given sufficient dowry in the marriage.
19. We can understand the predicament of the parents who married two of their daughters in the same family. The younger daughter was yet to be sent to the family of her-in-laws. PW3 and
PW4 have not uttered a word attributing harassment at the hands of Pushpa and Yogesh, the co-accused but withstood by stand of demand of dowry made by appellant and also harassment and
maltreatment of the deceased for not meeting the same. There is absolutely no reason to reject their sworn testimony. In fact during Criminal Appeal No.778-DB of 2007 the cross-examination of PW3 and PW4, an attempt was made only to take out the co-accused from the charges against them.
20. Learned appellant’s Counsel contended that the prosecution story, however, was that a quarrel took place between the husband and wife on account of stitching clothes of other people by Babita deceased and refusal of the appellant to hold the child who was crying and,therefore it cannot be said that unfortunate death of Babita took place on account of harassment for non fulfillment of demand of dowry soon before the death. The appellant cannot take advantage of this argument because the genesis of the arrogant behaviour was clearly the demand of dowry and the harassment on account of not meeting the said demand.
21. It was further contended on behalf of appellant that PW3 and PW4 cannot be relied on the above aspect as they were declared hostile to the prosecution. The law on the subject is quite well
settled that the court can take into consideration the part of statement of the hostile witness which supports the case of the prosecution. It is not an abstract rule that whenever the witnesses are declared hostile, it must prove fatal to the prosecution. Reference in this regard can be made to judgment of the Hon’ble Supreme Court in Bajju @ Karan Singh v. State of Madhya Pardesh, 2012(4) SCC 327. PW3 and PW4 were declared hostile as they supported the conduct of Yogesh and Pushpa, the coaccused but on other aspects they are quite consistent about demand of cash amount and motor-cycle and continued harassment and maltreatment of Babita, their daughter on that account. The statement of PW3, father of the deceased is reproduced below:-
Criminal Appeal No.778-DB of 2007 10
“…….The accused Sanjay demanded three times a sum of Rs. 10,000/-. After one year of the marriage, one female child was also born and sufficient articles were given in the Chhuchhak ceremony. Accused Sanjay demanded motorcycle at the time of Chhuchhak ceremony. After one month of the delivery he brought his daughter Babita to his house at Village Bapora and she
stayed there for about 20 days. Thereafter, she was sent to village Sanjarwas with accused Sanjay. After that accused Sanjay again beat up his daughter Babita and a panchayat was also convened regarding beating Babita. He himself, his brother-in-law Kuldeep and some respectables went to village Sanjarwas in the shape of a panchayat and tried to make the accused understand but in vain.”
The above statement of PW3 is supported by PW4, which has not been virtually challenged in their cross-examination by the defence, except a simple suggestion to the contrary only to PW4 mother of the deceased.
22. The contention that the dying declaration was not recorded by a Magistrate is untenable because Investigating Officer (PW16) had been running from pillar to post to get the statement of
the victim recorded by a Magistrate. The Investigating Officer was thus left with no other option but to record statement of the victim himself by going to the PGIMS Rohtak. He completed the statement of the victim at 5.20 pm as per endorsement of doctor attending the Criminal Appeal No.778-DB of 2007 11 patient.
23. PW16 stated that after the Duty Magistrate passed the order on his application, he again went to the PGIMS, Rohtak and recorded the statement of the victim in the presence of Dr. Gurdip
Tinna (PW14). Thereafter the doctor made endorsement that patient was fit during the statement Ex. PJ/1. IO recorded a detailed narration of incident, which he could not possibly fabricate. PW16 stated that apart from the doctor no other person was present with the victim except Nagesh Kumar Constable. The appellant has even tried to dispute signatures of Babita (deceased) on the statement Ex. PJ, but such a challenge cannot be accepted as Investigating Officer would not dare to forge the signatures of victim to invite his own implication on a criminal charge. The authenticity of signatures of Babita on Ex. PJ was rather not challenged during cross-examination of parents of the deceased. PW14 Dr. Pardeep Tinna stated that there is possibility that the victim could write even though both her hands were burnt.
24. PW14 Dr. Pardeep Tinna made endorsement Ex. PJ/2 on the statement of victim to the effect that the patient remained fit during the statement. The doctor further stated that he remained
around the Investigating officer at the time of recording of the statement. The doctor further stated that in order to find mental state of Babita he put questions to the victim regarding her orientation, consciousness, her name, residence etc. but she did not disclose anything about the incident. The above clinical examination of the patient by the doctor would repel the contention that the victim was Criminal Appeal No.778-DB of 2007 not in fit state of mind at the time of making statement. The doctor categorically denied suggestion that the statement of victim was not
recorded in his presence. The suggestion to the Doctor that IO obtained opinion Ex. PJ/1 from him on a blank paper is unacceptable.
25. The autopsy on the dead body of Babita was conducted on 11.9.2006 by board of doctors comprising Dr. Satish Ahuja of General Hospital, Rohtak and Dr. Vikas PW5. There were superficial
to deep burns all over the body except scalp and an area starting from 3 cm above right patella up to right foot spared. There were about 80 to 90 percent burns on the victim and the cause of death was due to burns and its complications. The doctor stated that in these types of patients one is unable to speak anything after the incident. Therefore, it is contended that the victim could not be in a fit mental state to make the statement. There is, however, no suggestion to the doctor that such a patient can never recover with activity of speech and orientation after expiry of, may be, about 20 to 24 hours of the incident. In fact the victim was initially held to be not fit to make a statement on the previous night. There is the medical opinion about fit mental state at the time when statement of victim was recorded on the next evening, more so when the said statement bears signatures of the victim.
26. In Laxman V. State of Maharashtra (2002)6 SCC 710, it was held as under:-
“……..Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to Criminal Appeal No.778-DB of 2007 13 make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of
communication whether by words or by signs or otherwise will suffice, provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity, it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, what evidential value or weight
has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied Criminal Appeal No.778-DB of 2007 that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is
essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.”
27. In the instant case, there is nothing to suggest that anybody could influence the victim in coming up with some imaginary story. PW3 Fakir Singh father of Babita deceased stated that when
they reached Civil Hospital, Bhiwani she was not in a position to speak. Similar is the version of PW4 Santra, her mother. The above factors would show that the victim was not under the influence of her family members, when she recorded her statement before IO.
28. We, however find that a part of dying declaration of Babita was not accepted by trial Court and the co-accused to whom equal role was attributed in setting the victim on fire, were acquitted.
In the statement Ex. PJ Babita stated that her husband and other accused fled from there and she was brought to the hospital by some neighbourers. Babita was immediately taken to the Civil Hospital, Bhiwani where Dr. Naresh Kumar, PW15 medically examined her at about 4.45 p.m. before the patient was referred to PGIMS Rohtak. There were superficial to deep burns with kerosene smell emitting form the body and clothes. Ex. PQ is copy of the MLR. The doctor Criminal Appeal No.778-DB of 2007 stated from record that the patient was brought by Sanjay her husband. The presence of appellant with the victim in Civil Hospital, Bhiwani does not bring any mitigating circumstance because soon after the incident he would have realized the consequences of his act. The appellant, however, did not accompany the victim upto PGIMS Rohtak. PW16 IO denied the suggestion that appellant was also accompanying the patient when she was brought in PGIMS
Rohtak. IO further stated that the patient was brought by two ladies, driver of the ambulance and father of victim.
29. Reference has also been made to cross-examination of Dr. Sajjan PW1 who medicolegally examined the appellant when he was arrested on 13.9.2006. The appellant was having burn injuries
on left upper limb at dorsal aspect of hand and lower half of ventral aspect of left fore-arm with new growing skin over the burnt parts. Ex. PA/1 is report of the doctor. Even Dr. Naresh Kumar PW15 of Government Hospital, Bhiwani, who conducted initial medical examination of the victim, found burns on the person of appellant. The extent of burn injuries on the body of the victim would show that the appellant did not make real attempt to save her life by extinguishing fire. The doctor (PW1) rather stated that injuries on the person of appellant could be possible while saving a person and also while setting the victim afire.
30. The other argument on behalf of appellant was that the victim remained alive for about 13 to 14 days but no attempt was made to record her statement by a Magistrate. But we find that no
material has been brought on record to show that the victim regained Criminal Appeal No.778-DB of 2007 consciousness after her initial statement was recorded by IO nor any question was put to the Investigating Officer as to why any further attempt was not made to get the statement of victim recorded by a Magistrate. The above contention, therefore, is without substance.
31. The basic question would be whether the dying declaration can be accepted in part especially when the co-accused, who were also inculpated in the same manner have been acquitted by the trial Court. It is contended that the State has neither preferred appeal against acquittal of the co-accused nor for seeking conviction of the appellant under Section 302 IPC, which was the alternative charge.
32. Such a question arose in Godhu and another V. State of Rajasthan (1975)3 SCC 241 and the Hon’ble Supreme Court held as under:
“16. We are also unable to subscribe to the view 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. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in Criminal Appeal No.778-DB of 2007 17 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 of 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.”
33. We also find that due to the above factors the learned trial Court adopted a correct approach of finding the appellant guilty of offence made under Section 304-B IPC as all the essential
ingredients for the offence were established even if a part of the dying declaration inculpating the accused for a specific role played by each of them is not accepted. Therefore, the conviction of the
appellant for the said offence is maintained.
34. Coming to the quantum of sentence, it was urged that punishment awarded to the appellant is on extreme higher side. It is worth noticing that marriage of the appellant with Babita deceased
was solemnized only about one and half year before the occurrence. The victim gave birth to a female child who was seven months old at Criminal Appeal No.778-DB of 2007 the time of occurrence. The manner in which the life of the deceased was put to an end should attract harsher punishment as the appellant does not deserve any leniency and that part of the sentence,
therefore, must be upheld.
35. Learned trial court also imposed Rupees one lac as fine for the said offence which is not permissible. The Apex Court in Arun Garg V. State of Punjab and another 2004(8) SCC 251 held that
Section 304-B IPC is one of the few sections in the Indian Penal code where imposition of fine is not prescribed as punishment. The appellant in that case was also sentenced to pay a fine of Rupees two lakhs with a direction that the fine, if recovered, shall be paid to the complainant. As no fine could be imposed as punishment for offence under Section 304-B IPC, direction to the appellant to pay fine of Rupees two lakhs was held wholly illegal. It was also contended in that case in such an event the amount can be treated as compensation in terms of Section 357(3) of the Code of Criminal Procedure. The Hon’ble Supreme Court negatived this contention by holding as under:-
“………Section 357(3) contemplates a situation where the complainant has suffered any loss or injury and for which the accused person has been found prima facie responsible. There is no such finding or observation by the High Court. Of course, the daughter of the complainant passed away but the direction of the High Court to pay Rs. 2 lakhs was on the assumption that the complainant had paid Rs. 2 lakhs as part of the Criminal Appeal No.778-DB of 2007 dowry to the appellant. There is no evidence to show that such an amount was given to the appellant. On the
other hand, the appellant’s learned Counsel contended that it was a love marriage between the appellant and the deceased and no dowry passed between the parties. It is also pertinent to note that Section 357 (5) of the Cr.P.C. says that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. The direction to pay compensation under Section 357 (3) is on the assumption of basic civil liability on the part of person who committed the offence to redress
the victim or his dependents by payment of compensation. The complainant could not have filed a civil suit for recovery of the dowry amount, if any, as the payment itself was illegal and prohibited under law. In any view of the matter, the direction of the High Court to pay a sum of Rs. 2 lakhs as fine was not warranted by law and we set aside the same and also further direction that the appellant to undergo default sentence.”
36. Even in the instant case, the dowry articles were recovered by the police during investigation of the case. Otherwise too the Hon’ble Supreme Court in Arun Garg’s case (supra) observed that the complainant i.e. father could not have filed civil Criminal Appeal No.778-DB of 2007 suit for recovery of the dowry amount, if any, as the payment was itself illegal and prohibited under the law. What at best in this case could be done is to award compensation to be meant for the minor girl of the couple. That amount of compensation is assessed at Rs. 25,000/- by setting aside the sentence of fine. Accordingly, we direct the appellant to pay amount of Rs.25,000/- in the shape of a draft in the name of minor child as compensation which shall be kept in fixed deposit in some nationalized bank bearing the maximum interest and renewed from time to time, to be withdrawn by her on attaining the age of majority. Sentence of fine is,therefore set aside and the appellant is directed to pay Rs.25,000/- as compensation in terms of Section 357(3) Cr.P.C. to be kept in the name of the child as observed above.
37. Before parting with the judgment we find it appropriate to deal with the situation in which the investigation was virtually blocked at the initial stage by the Duty Magistrate, Rohtak declining to record dying declaration of the victim on the ground that no FIR had been registered for a cognizable offence.
38. This was only an unfounded notion of self restraint by the duty Magistrate. Section 32 of the Indian Evidence Act makes the statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, as themselves relevant facts in the cases illustrated in the Section. Clause (1) of Section 32 Criminal Appeal No.778-DB of 2007 21
says that such a statement is relevant when it is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
39. A plain reading of the above provision does not suggest that the recording of the statement is permissible only when a case for cognizable offence is made out. The Magistrate has taken shelter
of sub Section (1) of Section 164 of the Cr.P.C to put his hands off in recording the dying declaration unless there was an FIR. There is no such restriction contained in the said provision. Section 164(1) Cr.P.C. provides that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. Section 174 of the Code of Criminal Procedure deals with certain inquiries and sub-section (3) thereof relates to cases involving death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman etc.
40. Section 32 of the Evidence Act has a very wide scope. The only caution for the Magistrate in recording such a statement could be that the request has come from Police or Medical Officer
attending the patient and in the present case indisputably the application was made by ASI Bhagwan Dass of a Police Station, Criminal Appeal No.778-DB of 2007 which was located outside District Rohtak i.e. District Bhiwani. It may often happen that an information is received at a Police Station from the hospital, as in the present case, about a woman or any other person for that matter, having been admitted with burn injuries or other serious injuries. If the victim is not accompanied by any relative or other person, the manner in which injuries were suffered or received by the victim cannot be revealed unless the statement of victim is recorded. That is the whole intent of Section 32 sub Section 1 of the Indian Evidence Act to make certain statements admissible.
The law rather is well settled that a dying declaration can be sole basis of conviction as held in Bajju’s case (supra).
41. This Court has also framed necessary guidelines in Chapter 13-A Vol. 3 of the High Court Rules and Orders. Rule 2 of the Chapter would be relevant in this regard and is reproduced as under:-
“2. Dying declaration to be recorded by Judicial Magistrates. (1) Where a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of an alleged crime, is in danger of dying before the enquiry proceedings or the trial of the case commences, his statement, if possible, be got recorded by a Judicial Magistrate. When the police officer
concerned with the investigation of the case or the medical officer attending upon such person apprehends that such person is in the danger of dying before the case is put in court, he may apply to the Chief Judicial Criminal Appeal No.778-DB of 2007 23 Magistrate, and, in his absence, to the senior most Judicial Magistrate present at the headquarters, for recording the dying declaration.
(2) On receiving such application, the Judicial Magistrate at once either himself proceed, or depute some other stipendiary Judicial Magistrate to record the dying declaration.”
42. To avoid such a dilemma, we direct that the observations made by us in paragraphs No. 37 to 41 be communicated to all the subordinate Courts in the States of Punjab, Haryana and U.T.
Chandigarh for meticulous compliance.
43. In views of the discussion made in the main part of the judgment the instant appeal is dismissed with modification in the sentence of fine.
(SURYA KANT) (R.P. NAGRATH)
JUDGE JUDGE
January 22, 2013