2006 Supreme(SC) 898

2006(7) Supreme 442
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Balbir Singh & Anr.—Appellants
versus
State of Punjab—Respondent
Criminal Appeal No. 957 of 2005
Decided on 26-9-2006
Counsel for the Parties :
For the Appellants : Rishi Malhotra and Prem Malhotra, Advocates.
For the Respondent : Ms. Avneet Toor and Sanjay Jain (for Arun K. Sinha), Advocates.

IMPORTANT POINT
Only because a dying declaration was not recorded by Magistrate may not be a ground to disbelieve the prosecution case.

Headnote:(i) Indian Penal Code, 1860—Section 302/34—Appellants, husband and mother-in-law of deceased, convicted under—Deceased having received 90 burn injuries was taken to hospital—Dying declaration was recorded by doctor in presence of other doctors—Investigating Officer recorded second dying declaration and deceased then died on 4th day of incident—Defence contention that Magistrate was not called to record such statement by itself could not be a ground to reject the whole prosecution case—Dying declaration must be voluntary and should not be tutored—If wholly inconsistent or contradictory statements are made or if it appears from record that dying declaration was not reliable, question could arise as to why Magistrate was no called for—In the first dying declaration appellant No. 2 was not named—Culpability of accused husband was stated in both dying declarations—Deceased was rescued by neighbours by unbolting door of bathroom ruled out case of suicide—Dying declaration recorded by doctor showed that it was voluntary and not tutored—Appellant No. 2 deserved to be given benefit of doubt but conviction of appellant No. 1 was liable to be confirmed.

       Held : The law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers. Only because a dying declaration was not recorded by a Magistrate, the same by itself, in our view, may not be a ground to disbelieve the entire prosecution case. When a statement of an injured is recorded, in the event of her death, the same may also be treated to be a First Information Report. Dying declaration, however, must be voluntary. It should not be tutored. It is admissible in evidence in special circumstances. But it must be borne in mind that its admissibility is statutorily recognized in terms of Section 32 of the Indian Evidence Act. The effect of the statement being not recorded before a Magistrate would depend upon the facts and circumstances of each case and no hard and fast rule can be laid down therefor. If, however, wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon.(Paras 19 to 22)

       There is, however, no escape from the fact that in the first dying declaration, Appellant No. 2 was not named. The fact that she was brought in a burnt condition is not in dispute. She had exonerated her father-in-law. According to her, she was brought in the hospital by her father-in-law. The records, however, suggested that she was admitted by her husband. Presumably both were present. We have earlier noticed that her husband was forced to bring her to the hospital by the neighbours. His culpability has categorically been stated by the deceased in both the dying declarations. She had categorically stated that her husband had put kerosene oil upon her and upon igniting, locked the door of the bathroom from outside. She was rescued by the neigbours. A case of suicide, therefore, must necessarily be ruled out.(Paras 25 to 27)

       We are of the opinion that whereas the findings of the learned Sessions Judge as also the High Court in regard to guilt of Appellant No.1 must be accepted, keeping in view the inconsistencies between the two dying declarations, benefit of doubt should be given to Appellant No.2. We, however, uphold the conviction and sentence of both the Appellants under Section 498-A IPC.(Para 35)

       (ii) Indian Penal Code, 1860—Section 302/34—Framing of charge with alternative charge for offence of dowry death—Illegality in framing of charge—No such point was taken before trial Court or High Court and no prejudice was shown in statements u/s 313 Cr.P.C.—Appellants could not be allowed to raise the point at this stage.

       Held : This leaves us the alternative question as to whether framing of charge was permissible in law. The said question has not been raised even in the special leave petition. No such point was also taken before the learned Trial Judge or the High Court. Appellants have not shown any prejudice even in their statements under Section 313 of the Code of Criminal Procedure.(Para 36)

       Effect of framing of alternative charges vary from case to case. In the peculiar facts of present case, we are of the opinion that Appellants having not raised any grievance at any stage in that behalf, they cannot be allowed to do so at this stage.(Para 40)