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2004 Supreme(Raj) 867
Rajasthan High Court
Honble SUNIL KUMAR GARG & DALIP SINGH, JJ.
Satish Kumar - Appellant
Versus
State of Rajasthan - Respondents
D.B. Criminal Appeal No. 485 of 2001
Decided On : September 14, 2004
M.L. Garg, for Appellant V.R. Mehta, Public Prosecutor Sandeep Mehta, for Complainant
Headnote:(a) Penal Code, Sec. 302/34 and Evidence Act, 1872, Sec. 32 – Dying declaration – Statement of deceased recorded on 14.1.1998 but died on 16.1.1998 – Credibility of the statement given on 14.1.1998 – Held – At that time, it was not expected that deceased would die later on – Expectation of death, when statement is made, is not a necessary ingredient – Statement can be treated as dying declaration. (Paras 27 & 28)(b) Penal Code, Sec. 302/34 and Evidence Act, Sec. 32 – Dying declaration – Statement given recorded by Police Officer before start of investigation – Held – Such statement is admissible u/Sec. 32 of Evidence Act. (Paras 30 to 34)(c) Penal Code, Sec. 302/34 and Evidence Act, Sec. 32 – Dying declaration not certified by a doctor as to the fitness of mind of declarant can be acted upon as the requirement of certificate by the doctor is a rule of caution and not rule of law. (Paras 42 to 44)
So far as Indian law is concerned,it can easily be held that Section 32 of Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person, who dies where death is homicidal or suicide provided the statement relates to the cause of death of exhibits circumstances leading to death, but it is not necessary that at the time when the statement was given the person giving statement must have been under expectancy of death because this is a departure from English law.
The statement of deceased was recorded by PW14 Jeerudin, at that time, it could not be expected the deceased would die later on. Therefore, it maker of that statement dies subsequently, that statement can be treated as dying declaration and thus, the learned trial Judge has rightly treated the statement of deceased Ex.P/32 as dying declaration, as expectation of death when statement is made is not a necessary ingredient in Indian law. (Para 27 & 28)
Thus, it can be held that the dying declaration recorded by the Police Officer when the deceased was in critical condition is admissible under section 32 of the Evidence Act, but it would be better if the services of the Magistrate could be availed. (Para 33)
Even a dying declaration which is not certified by a doctor as to the fitness of mind of declarant can be acted upon as the requirement of certificate by the doctor is a rule of caution and not rule of law. (Para 44)
(2). It may be stated here that in this case there was one more accused, namely, Yogesh Kumar, who was also being tried by the learned Trial Court alongwith accused appellant, but during the pendency of trial, he died on 12.4.1999 and therefore, proceedings against him were dropped by the learned Trial Court vide order dated 8.6.1999 and thus, thereafter, trial continued only against the present accused appellant.
(3). It arises in the following circumstances:
On 14.1.1998, PW14 Jeerudin, who was at that time ASI, Police Station Purani Abadi, Sri Ganganagar received a cryptic telephonic information/message that one person was lying in injured condition in the lane and he was being brought to the hospital and the information was reduced into writing by PW14 Jeerudin in the Rojnamcha Ex.P/40A and thereafter, PW14 Jeerudin reached hospital, where he found Ram Kishan (hereinafter referred to as the deceased) in injured condition and deceased gave parcha bayan (Ex.P/32) to PW14 Jeerudin on 14.1.1998 at about 12.30 AM to the effect that he was LDC in the Sales Tax Department and at about 10.00 PM when he was going to dhani of Surjeet Singh on foot and when he reached near the turn of road, accused appellant Satish Kumar and his nephew Yogesh Kumar (another accused, who died during the pendency of trial) and 2-3 more boys met him and they caughthold him and thereafter, he was taken to the house of the accused appellant, were he was given beating by knives by the accused appellant and his nephew (Yogesh Kumar, who died during the pendency of trial), as a result of which, blood came out from his body and seeing blood coming out from his body, he was shunted out from the house by the accused appellant and another accused Yogesh and thereafter, he made hue and cry and after some time, he was brought to the hospital by some persons. It was brought to the hospital by some persons. It was further stated by the deceased that he was demanding Rs. 25000/- from the accused appellant and the papers of the house of the accused appellant were with him, which were taken by the accused appellant from him and since he was again demanding papers of the house from the accused appellant, therefore, because of this, he was beaten by the accused appellant and another accused Yogesh by knife.
That parcha bayan of deceased was reduced into writing by PW14 Jeerudin and the same is Ex.P/32 and that parcha bayan Ex.P/32 of deceased was recorded by PW 14 Jeerudin in presence of PW 9 Dr. Avinash, who made endorsement on it to the effect that it was recorded in his presence.
On the basis of that parcha bayan of deceased Ex.P/32, a case for the offence under section 307, 342, 354, 147, 148, 149 IPC was registered and regular FIR Ex.P/39 being No. 18/98 dated 14.1.1998 at Police Station Purani Abadi, Sri Ganganagar was chalked out and investigation was started.
During investigation, deceased was got first medically examined by PW2 Dr. B.M. Sharma and his injury report is Ex.P/3, which shows that he received as many as 14 injuries and they all were caused by sharp edged weapon.
It may be stated here that deceased died on 16.1.1998 at 5.00 AM in the hospital and therefore, the case was converted into Section 302 IPC and thereafter, post mortem of the dead body of the deceased was got conducted by PW2 Dr. B.M. Sharma and the post mortem report is Ex.P/4, where it was opined that the cause of death of the deceased was shock due to injuries to the liver lung and pan crease.
The site plan Ex.P/2 was got prepared by PW14 Jeerudin and from the house of accus
