IMPORTANT POINT
Statement recorded by Investigating Officer at hospital which was treated as FIR could be treated as dying declaration.

Headnote:(i) Indian Evidence Act, 1872-Section 32-Dying declaration-Statement recorded by Investigating Officer at hospital which was treated as FIR-At the time of recording statement investigating officer did not possess capacity of investigating officer as investigation had not commenced by then-Such statement could be treated as dying declaration in evidence under Section 32(1).
       Section 32 of the Evidence Act is an exception to the general rule of exclusion of hearsey evidence and the statement made by a person written or verbal of relevant facts after his death is admissible in evidence if it refers to the cause of his death or any circumstances of the transactions which resulted in his death. To attract the provisions of Section 32, the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured wihout any amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Evidence Act. (Para 8)
       It is well settled that dying declaration must be dealt with caution for the reason that the maker of the statement had not been subjected to cross-examination. There is no rule of law or rule of prudence that dying declaration cannot be accepted unless it is corroborated. (Para 11)
       In the instant case, learned counsel appearing for the appellants submitted that as the statement was recorded by the investigating officer which was treated as FIR, the same could not be treated as dying declaration and was inadmissible in evidence. The submission has no substance because at the time of recording the statement PW 22 Balwan Singh did not possess the capacity of an investigating officer as the investigation had not commenced by then. Such a statement can be treated as a dying declaration which is admissible in evidence under Section 32(1) of the Evidence Act. After critically scanning the statement of PW 22 ASI Balwan Singh and details of Exhibit PW 22/ B, we have no hesitation to hold that the aforesaid statement was voluntarily made by the deceased which was reduced to writing and have rightly been treated as dying declaration after the death of the maker. It cannot be disputed that Islamuddin who made a statement PW 22/B has died and in his deposition he has referred to the circumstances which ultimately proved to be the cause of his death. Nothing has been pointed out by the defence side which could create any doubt in our mind regarding the making or admissibility in evidence of the statement Exhibit PW 22/B. (Paras 7 and 8)
       (ii) Indian Penal Code, 1860-Section 302/34-Murder-Appeal against conviction-Deceased allegedly set ablaze by his father-in-law, brother-in-law, wife and co-brother-Dying declaration of deceased-Material facts stated in dying declaration corroborated by various witnesses and attending circumstances-Wife gave kerosene on the asking of her father without knowing for what purpose kerosene has been obtained by her father-She could not be imputed with common intention to commit murder-Co-brother of accused woke deceased up and allegedly held his hands-Presence of co-brother at scene of occurrence on facts and circumstances could not be said to be with intention to commit murder-Common intention to commit murder not proved against him-Conviction of father-in-law and brother-in-law upheld-Wife and co-brother acquitted. (Paras 10 to 15)

JUDGMENT

Sethi, J.-The appellant Ms. Shabnam is the wife, appellant Gulam Hussain, is the father-in-law, appellant Roshan is the brother-in-law and appellant Shakil Ahmad is the co-brother of the deceased Islamuddin who died on 13.10.1989 of the burn injuries caused on his person by the appellants. Upon conclusion of the trial the court of Additional Sessions Judge, Delhi convicted the appellants under Section 302 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 500/- each. The appeals filed against the conviction and sentence were dismissed by the High Court of Delhi vide the judgments impugned in these appeals which have been preferred by the appellants from the jail.

2. We have heard Shri Jagdev Singh Manhas, amicus curaie appointed and Shri K.N. Shukla, Senior counsel who appeared for the respondents.

3. According to the prosecution FIR was registered on the basis of statement of the deceased which was recorded after he was admitted in LNJP Hospital. In the statement Islamuddin had stated that he was married to appellant Shabnam, daughter of Gulam Hussain about 5-6 months before the date of occurrence. When he came to Jhuggi No. 215, near Public Latrine, Sanjay Amar Colony, Boat Bridge, Yamuna Pushta about 7-8 days before the occurrence to take back Ms. Shabnam, a quarrel ensued between him and Shabnam because of her having brought with her gold and silver ornaments worth Rs. 5,000/-. As Shabnam was not sent along with him he slept for three nights in a tea shop which was situated on the corner of the house of his father-in-law and he was not allowed to live in Jhuggi with other members of Gulam Hussain. On 13.10.1989 at about 3.30 a.m. all the three male accused came on the spot where he was sleeping and woke him up. Shakil Ahmad caught hold of his both hands from behind. His father-in-law asked Shabnam to bring kerosene oil which she brought in a small container and handed over the same to her father who poured kerosene oil on Islamuddin forcibly and Roshan thereafter set him ablaze. The neighbourers came there and tried to extinguish the fire while crying "Bachao-Bachao (save-save), he reached near the iron bridge where a policemen got him seated in a three wheeler scooter for being taken to the hospital. PW 22 Balwan Singh is stated to have recorded his statement which was later on treated as his dying declaration.

4. To prove the case against the appellants, the prosecution examined PW 1 Constable Rajbir Singh, PW 2 Constable Naubat Singh, PW 3 Constable Jit Singh, PW 4 lady constable Tara, PW 5 Constable Krishan Pal, PW 6 Inspector Davinder Singh, PW 7 ASI Budhi Singh, PW 8 Shashi Dharan, PW 9 Nannay Khan, PW 10 Inspector Niranjan Singh, PW 11 Constable Balbir Singh, PW 12 Mohd. Satter, PW 13 Laloo, PW 14 Dr. B.N. Acharya, PW 15 Constable Krishan Kumar, PW 16 Dr. George Paul, PW 17, Constable Krishan Kumar, PW 18, Aslam, PW 19 S.N. Shai, PW 20 Constable Surinder Singh, PW 21 Head Constable Prem Pal Singh, and PW 22 ASI Balwan Singh. Besides oral testimony of the witnesses, the prosecution relied upon two written dying declarations i.e. Exhibit PW 19/A and Exhibit PW 22/B.

5. Despite various opportunities granted, the accused did not lead any evidence.

6. Learned counsel appearing for the appellants has vehemently argued that as there was no direct evidence in the case it was not proper for the courts below to convict and sentence the appellants merely relying upon the dying declaration which, according to him, was not corroborated by any other witness in its material particulars. He has further contended that the dying declarations having been recorded in suspicious circumstances cannot be held to have been proved. Per contra, the learned Senior Advocate appearing for the respondent submitted that the dying declarations have been duly recorded and the material facts corroborated by other evidence produced in the case.

7. Exhibit PW 22/B was recorded by PW 22 ASI Balwan Singh in the hospital o

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2000 Supreme(SC) 1267

IMPORTANT POINTStatement recorded by Investigating Officer at hospital which was treated as FIR could be treated as dying declaration.

Cases Referred (1)

IMPORTANT POINT
Statement recorded by Investigating Officer at hospital which was treated as FIR could be treated as dying declaration.