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PUNJAB & HARYANA HIGH COURT
V.K.Bali and K.S.Kumaran JJ.
Surinder Paul
Versus
State Of Punjab
Criminal Appeal No. 139 of 1993,
Decided On : MARCH 6, 1996
CRIMINAL APPEAL - SECTION 302 IPC - DYING DECLARATION - ADMISSIBILITY - PROCEDURE FOR RECORDING - INTERPRETATION OF RULES - ROLE OF JUDICIAL MAGISTRATE AND POLICE OFFICER - CREDIBILITY OF WITNESSES - SEVERABILITY OF DYING DECLARATION - PARTIAL ACCEPTANCE - MAIN LEGAL POINT: Dying declaration is admissible as evidence if recorded in accordance with prescribed rules and procedures. However, if a part of the declaration is found to be incorrect, the court may sever and reject that part while relying on the corroborated part.
Fact of the Case:
Smt. Pushpa, wife of appellant Des Raj, sustained extensive burn injuries and made a dying declaration implicating her husband and three nephews in setting her on fire. The appellants challenged the conviction and sentence based on the dying declaration, arguing that it was recorded by a police officer instead of a judicial magistrate and that the Executive Magistrate who arrived later did not record the statement himself.
Finding of the Court:
The court held that the dying declaration was admissible despite being recorded by a police officer in the absence of a judicial magistrate, as the police officer had obtained the doctor's opinion on the declarant's fitness and had the doctor present during the recording. The court emphasized the importance of following the prescribed rules for recording dying declarations and directed that a copy of the judgment be sent to the relevant authorities for circulation to Executive Magistrates.
Issues: 1. Whether the dying declaration was admissible in evidence since it was recorded by a police officer instead of a judicial magistrate. 2. Whether the Executive Magistrate's failure to record the statement himself affected the admissibility of the dying declaration. 3. Whether the dying declaration could be severed and partially accepted, considering that part of it was found to be incorrect.
Ratio Decidendi: 1. The court held that the dying declaration was admissible despite being recorded by a police officer, as the police officer had taken necessary precautions to ensure the declarant's fitness and had the doctor present during the recording. The court emphasized that the welfare of the injured person should be the primary consideration and that proper medical treatment should not be delayed to obtain a dying declaration. 2. The court held that the Executive Magistrate's failure to record the statement himself did not affect the admissibility of the dying declaration, as the police officer had followed the prescribed procedure and obtained the doctor's opinion on the declarant's fitness. However, the court criticized the Executive Magistrate for not following the rules and emphasized the importance of adhering to the prescribed procedure. 3. The court held that the dying declaration could be severed and partially accepted, considering that part of it was found to be incorrect. The court relied on the Apex Court's decision in Godhu v. State of Rajasthan, which held that if part of a dying declaration is found to be incorrect, the court may reject that part while relying on the corroborated part.
Final Decision: The court dismissed the appeal filed by Des Raj, upholding his conviction and sentence. However, the court allowed the appeal filed by the other appellants, Surinder Pal, Raj Kumar, and Billa, and set aside their conviction and sentence, giving them the benefit of doubt.
V.K.BALI, J.
1. In these two separate Criminal Appeals bearing No. 139-DB of 1993 preferred by Surinder Pal, Raj Kumar and Billa and Criminal Appeal bearing No. 189-DB of 1993 preferred by Des Raj the challenge is to the order of conviction and sentence recorded by Additional Sessions Judge, Jalandhar dated 26th of April, 1993 vide which the appellants herein were held guilty under Section 302 read with Section 34 of the Indian Penal Code for having done to death Smt. Pushpa wife of appellant Des Raj and ordered to undergo imprisonment for life and to pay a fine of Rs. 5000/- each in default whereof, they were further ordered to undergo rigorous imprisonment for one year. Whereas Smt. Pushpa deceased was wife of Des Raj appellant, the other appellants Surinder Pal, Raj Kumar and Billa are (nephews) brothers sons of Des Raj. The only question raised in this appeal is as to whether the dying declaration made by Smt. Pushpa wife of Des Raj in the facts and circumstances of this case deserves to be believed and if so whether it has to be believed in its entirety or some part of it can be rejected. Before the sole question is answered one way or other, it would be useful to give brief resume of facts leading to the death of Smt. Pushpa.
2. Smt. Pushpa was taken to Civil Hospital, Jalandhar in injured condition when she had at that time 90% burn injuried on her body. Her statement was recorded at 4.00 A.M. on 15th of November, 1989 by Lashkar Singh A.S.I., Police Station Division No.6, Jalandhar. Dr. S. S. Thind, E.M.O. Civil Hospital, Jalandhar vide Ex. PE/I certified that Smt. Pushpa remained fit throughout while making her statement. Pushpa stated in her aforesaid statement that she was resident of Mohalla Bhargo Camp. Her husband Des Raj was engaged in the business of preparing Steel Pettis and trunks. He always came to the house after drinking from the shop and harassed her. He was not giving expenses for running the household for the last about one month and even had turned her out of the house earlier on her demand for expenses for running the house. At about 11.00 P.M. her husband came to the house after taking liquor from the shop. He called her from the Chobara to the shop situated on the ground floor. There was no light in the shop. Chhinda son of her Jethani (husbands elder brothers wife) Kaushalya, caught hold of her from her mouth and Billa gave her a slap on her face. Then Raja who was son of her Jethani picked up a canny containing kerosene oil from nearby and handed over the same to her husband Des Raj Then her husband Des Raj after taking canny of kerosene oil, threw the kerosene oil on her person and set her on fire with the help of match stick, saying that he would finish her and clear the passage of his life. When she was set on fire, at that time the shutter of the shop was half open. She raised alarm, Bachao, Bachao, as a result of which her husband Des Raj, sons of her Jethani (husbands elder brothers wife) namely, Raja, Chhinda and Billa fled away. Her son Surjit Kumar who was married and was also sleeping in a separate room on the back of the shop, woke up and came there on hearing her alarm. He extinguished the fire. Then her other children also came there from the chobara. Surjit Kumar and Nirma her daughter-in-law took her in their room. Thereafter, her daughter Parveen removed her to Civil Hospital, Jalandhar on the three wheeler and got her admitted there, where she had been under treatment. Her son Surjit Kumar did not come to admit her due to fear of her husband.
3. The occurrence as per the statement of Smt. Pushpa leading to her sustaining the burn injuries had taken place on 14th of November, 1989 at 11.00 P.M. On the statement of Smt. Pushpa reproduced above formal F.I.R. came to be registered at about 4.40 A.M. on 15th of November. 1989 and special report reached the Magistrate at Jalandhar on 16th of November, 1989 at 11.55 A.M.
4. With a view to bring home the offence against the appel
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