2010 Supreme(SC) 881

Supreme Court of India
THE HONOURABLE MR. JUSTICE V.S. SIRPURKAR & THE HONOURABLE MR. JUSTICE A.K. PATNAIK
Sunder Singh
Versus
State of Uttaranchal
CRIMINAL APPEAL NO.1164 OF 2005
Decided on : 16-09-2010

Headnote:(a) Criminal trial – Appreciation of evidence – Contradiction in statement – Magistrate recording dying declaration u/s 164, CrPC – Contradictions alleged by defence – Magistrate not cross-examined on alleged contradictions – Unless a contradiction is proved by putting it to the person who records the original statement, such contradiction is of no consequence. (Para 12)

       (b) Indian Evidence Act, 1872 – Section 32 – Dying declaration recorded – Witness survives – Use of such statement recorded by a Police Officer is barred under Section 162 Cr.P.C. – However, the same recorded by a Magistrate under Section 164, Cr.P.C. can be used to corroborate the witness as proved under Section 157 of the Evidence Act. (Para 12)

       (1999) 5 SCC 30 – Relied upon

       (c) Criminal trial – Appreciation of evidence – Dying declaration of injured witness recorded – Witness surviving – Dying declaration and substantive evidence largely consistent – Minor contradictions – Not fatal – Dying declaration held reliable and properly recorded and truthful and corroborating oral evidence of the injured witness. (Para 12, 14)

       (d) Indian Evidence Act, 1872 – Section 32 – Dying declaration – Sometimes dying declaration can be accepted even without doctor’s certification – Present case is one such case. (Para 18)

       (2002) 6 SCC 710; (2002) 10 SCC 4; (2003) 6 SCC 443 – Relied upon

       (e) Criminal trial – Conviction – Courts below relying on dying declaration of one deceased and evidence of one injured witness – The declaration and the evidence voluntary, consistent and corroborated – No infirmity in conviction. (Para 23)

       (f) Criminal trial – Slipshod investigation and casual prosecution – Investigating officer could have recorded dying declaration of witnesses/victims who died before Magistrate reached hospital – FSL report not obtained and filed – Casual prosecution – Trial Judge has to control the trial by active application of mind – Lack of, deprecated. (Para 24)

       (g) Indian Penal Code, 1860 – Section 302 – Capital; punishment – Appellant wiping out five persons of a family including a child of 9 years – Sixth and last person survived to live with 70% burn injuries – Murder committed in a cruel, grotesque and diabolical manner burning all the persons inside the room – Accused showing extreme depravity of mind in causing a sword blow on the neck of Balwant Singh, who himself was burnt and was trying to escape – Accused carrying a sword and a pistol – Absconding thereafter for 12 years – Capital sentence confirmed. (Para 35, 36)

       AIR 1980 SC 898; AIR 1983 SC 957; AIR 2002 SC 1661; JT 2010 (8) SC 372; Criminal Appeal Nos. 127-130 of 2008; (1996) 2 SCC 175; (1994) 2 SCC 220; (1988) 4 SCC 574; AIR 2004 SC 394; AIR 1974 SC 799; AIR 2003 SC 4187; (1979) 3 SCC 646; (1999) 4 SCC 108; (1999) 3 SCC 19; (2001) 2 SCC 28; (2002) 3 SCC 76; (2009) 15 SCC 551; (2010) 1 SCC 775; AIR 2008 SC 3040 – Relied upon

       Facts of the case:

       The incident in this case had taken place on 30.6.1989 in village Mahargheti, Patwari Circle Dangoli in the newly formed District Bageshwar. In this ghastly incident, Pratap Singh, his wife Nandi Devi, his elder son Balwant Singh (aged about 28 years), another son Prem Singh (aged about 19 years), daughter Kamla (aged about 16 years) lost their lives while wife of Balwant Singh, namely, Vimla Devi (PW-1) sustained grievous burn injuries. Five victims who lost their lives including Balwant Singh were roasted alive and died either on the spot or while being taken to the hospital or in the hospital. Balwant Singh, however, was almost beheaded while he also suffered the burn injuries. The prosecution alleged that this incident took place at about 10 p.m. when all the victims were taking their dinner in the ground floor room of their house. The appellant/accused came there with jerry can containing petrol and burning torch and threw the petrol in the room and after setting fire by torch, he shut the door of the room. Though Balwant Singh was in flames he managed to come out of the room by opening the door. However, as soon as he came out of the room, the accused who was still waiting there gave him a sword blow on the neck because of which he fell down dead out side the house. The other five family members who sustained severe burns also died barring Vimla Devi who alone survived. Nandi Devi died on the way to the Primary Health Centre at Baijnath while Pratap Singh also died there itself. Kamla and Prem Singh died in the District hospital, Almora later on, where they were shifted from Baijnath.

       The Sessions Judge convicted the appellant/accused Sunder Singh for offences under Sections 302, 307 and 436, Indian Penal Code (IPC). While he was awarded the death sentence along with a fine of Rs.5,000/- and in default to suffer further rigorous imprisonment for one year, he was given the punishment of seven years along with fine of Rs. 5,000/-and in default to suffer further rigorous imprisonment for one year separately on the other two counts.

       High Court affirmed the conviction and sentence.

       Finding of the Court:

       Judgments of the Trial Court and the High Court endorsed and their findings on conviction confirmed.

       Result:

       Appeal dismissed.