Important Point
Merely because that endorsement of Doctor that declarant was in fit condition to make statement was made not on the Dying Declaration itself but on the application, would not render the Dying Declaration suspicious in any manner.

Headnote:(i) Indian Penal Code, 1860- Section 302 - Murder-Conviction on basis of dying declaration-Charge that accused mother-in-law, father-in-law and husband killed victim by pouring kerosene over body of victim and setting her fire-First dying declaration to police stating that no one was responsible-Second dying declaration recorded by Sub-Divisional Magistrate wherein victim narrated sequence of incidents - Lower Courts believing second dying declaration as true convicted all accused-Interference unwarranted-Circumstances clearly indicate that victim was not a free person when she gave first dying declaration. (Paras 5 to 7)
(ii) Evidence Act, 1872-Section 32-Dying declaration-Magistrate obtained endorsement of Doctor in application requesting recording of dying declaration that declarant was in fit condition to make statement-Plea that endorsement must be in dying declaration and as such dying declaration cannot be relied upon-Not tenable-Declarant narrated events and magistrate recorded same - Non-recording of declaration in question answer form not ground to suspect dying declaration. (Paras 5 to 7)

Judgement Key Points

Key Points: - Three appellants (mother-in-law, father-in-law, husband) convicted under Section 302 IPC for dowry-related murder by pouring kerosene and setting Parminder Kaur on fire (!) [1000038950001]. - Conviction relied on second dying declaration recorded by SDM (PW7) on 3.5.92; first declaration to police on 30.4.92 claimed accident with no one responsible [1000038950002][1000038950006]. - SDM obtained doctor's endorsement of fitness on the application (not declaration), confirmed victim's condition, recorded narrative in English after Punjabi statement, and took thumb mark [1000038950003][1000038950004]. - No relatives present during recording; initial presence of 3-4 persons cleared, nurse asked to leave; agitation by relatives does not imply pressure on SDM [1000038950004]. - Thumb mark valid despite burns; medical evidence does not preclude it; SDM credible independent witness [1000038950005]. - First declaration not voluntary due to lack of freedom (delayed hospital trip, no parental notification); second more probable and natural [1000038950006]. - Courts below correctly relied on second dying declaration; appeals dismissed [1000038950006] (!) .

What effect does a doctor's endorsement of fitness on the application (rather than the dying declaration itself) have on its reliability?

Is a dying declaration unreliable if not recorded in question-answer form?

Can a second dying declaration form the basis of conviction when it contradicts an earlier dying declaration to police?

Judgment

Nanavati, J.-The three appellants, in these two appeals, have been convicted under Section 302 IPC for causing death of Parminder Kaur. The appellant in Criminal Appeal No. 822 of 1997 is Harjit Kaur, the Mother-in-Law of Parminder Kaur. The two appellants in Criminal Appeal No. 823 of 1997 are Charan Singh and Sukhjeet Singh, the Father-in-Law and Husband of Parminder Kaur.

2. What has been held proved against them is, that they were not satisfied with the dowry brought by Parminder Kaur and, therefore, they used to ill-treat her and beat her also. Ultimately on 30.4.92 at about 2.00 a.m. they killed her by pouring kerosene over her body and then applying a lighted match stick to her clothes.

3. The trial Court convicted the three appellants and one Gurjit Singh, Brother-in-Law of Parminder Kaur, mainly relying upon the Dying Declaration made by Parminder Kaur on 3.5.92. The High Court has also believed the Dying Declaration and confirmed the conviction of the appellants, but gave benefit of doubt to the Brother-in-Law.

4. The contention of the appellants in these appeals is that the Dying Declaration made by Parminder Kaur does not deserve to be accepted and in any case cannot be made the sole basis of conviction of the appellants. The Dying Declaration, exhibit PL was recorded by Addl. District Collector, Vijay Kumar Janjua (P.W. 7), who was then working as Sub-Divisional Magistrate at Ludhiana. He has deposed that on 2.5.92, he had received an application addressed to the District Magistrate and sent to him by the District Magistrate, for recording the Dying Declaration of Parminder Kaur. He had forwarded it to the Tehsildar but as the Tehsildar was not available it was returned. He then, sent it to the Executive Magistrate for taking action on it. He was also not available. So on 3.5.92, he went to the hospital and recorded her Dying Declaration. He has also stated that he inquired from the Doctor in-charge as to whether she was in a fit condition to make a statement. After the Doctor confirmed that she was fit and made an endorsement to that effect on the application, he preceded with the work of recording the Dying Declaration. He had put questions to Parminder Kaur to ascertain whether she was able and willing to make a statement. Only thereafter he recorded what she had to state. He was further stated that she spoke in Punjabi and he wrote down what she had stated after translating it in English. Thereafter the statement was explained to her and her thumb mark was obtained on it.

5. It was submitted by the learned counsel for the appellants that about hundred persons had approached the District Magistrate for getting the Dying Declaration of Parminder Kaur recorded and that some of the relatives of the deceased had even accompanied the S.D.M. (P.W. 7) while he was going to the hospital for recording her Dying Declaration. He also submitted that the evidence of this witness discloses that three to four persons were present in the room where Parminder Kaur was kept. According to the learned counsel these two circumstances clearly indicate that P.W. 7 had recorded the Dying Declaration under pressure and in presence of those persons who were interested in Parminder Kaur. We do not find any substance in this contention because this witness has categorically stated in his Examination-in-Chief that when he was recording her statement, nobody was present in the room and even the Nurse attending on her was asked to get out of that room. What he has stated in cross examination is that when he had reached that place, three or four persons were seen sitting in the room. Therefore, it is not correct to say that the Dying Declaration was recorded in presence of some relatives of the deceased. The other circumstance that there was an agitation by the relatives of Parminder Kaur for recording her statement cannot lead to an inference that P.W. 7, who was an I.A.S. Officer and holding high position of Sub-Divisional Ma

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1999 Supreme(SC) 738

Important PointMerely because that endorsement of Doctor that declarant was in fit condition to make statement was made not on the Dying Declaration itself but on the application, would not render the Dying Declaration suspicious in any manner.

What effect does a doctor's endorsement of fitness on the application (rather than the dying declaration itself) have on its reliability?

Is a dying declaration unreliable if not recorded in question-answer form?

Can a second dying declaration form the basis of conviction when it contradicts an earlier dying declaration to police?

Important Point
Merely because that endorsement of Doctor that declarant was in fit condition to make statement was made not on the Dying Declaration itself but on the application, would not render the Dying Declaration suspicious in any manner.