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PUNJAB AND HARYANA HIGH COURT
Harbans Singh Rai, J.
Sudama and anr. - Appellants
Versus
State of Haryana - Respondent
Criminal Appeal No. 296-SB of 1985.
Decided On : 24 August, 1987
CRIMINAL LAW - DYING DECLARATION - ADMISSIBILITY - STATEMENT RECORDED BY POLICE OFFICER WITHOUT ATTESTATION BY DOCTOR - DELAY IN RECORDING STATEMENT - STATEMENT CONTRADICTED BY OTHER EVIDENCE - NOT LEGALLY SUFFICIENT TO CONVICTION.
Fact of the Case:
The appellants were convicted of murder based solely on a dying declaration recorded by a police officer without attestation by a doctor. The trial court had rejected the testimony of eyewitnesses and found no motive for the crime.
Finding of the Court:
The court held that the dying declaration was not legally sufficient to convict the appellants. It noted that there was a delay in recording the statement, it was not attested by the doctor, and it contradicted the testimony of the eyewitnesses.
Issues: Whether a dying declaration recorded by a police officer without attestation by a doctor and contradicted by other evidence is legally sufficient to convict an accused person.
Ratio Decidendi: A dying declaration is admissible in evidence if it is made by a person who is conscious of his impending death and who has no hope of recovery. However, the court must carefully scrutinize the circumstances surrounding the making of the statement to ensure that it is reliable. In this case, the court found that the statement was not reliable because it was recorded by a police officer without attestation by a doctor, there was a delay in recording the statement, and it contradicted the testimony of the eyewitnesses.
Final Decision: The court allowed the appeal and acquitted the appellants.
JUDGMENT
Harbans Singh Rai, J. - The appellants were convicted by the Additional Sessions Judge (II), Sonepat, vide his order dated 29th May, 1985, under Sections 326/34, and 323/34, Indian Penal Code, and were sentenced to undergo rigorous imprisonment for five years and six months, each respectively. Feeling aggrieved, they have filed this appeal.
2. Kanta Parshad was a resident of Sekunderpur in UP and for the last four years, prior to the incident, he was employed in the Atlas Cycle Factory, Sonepat. He used to live in Bawa Colony. On 28th June, 1983, at about 8.30 p.m., he had gone to the house of Shiv Sagar in Roop Nagar and after meeting him, he was going to his house when in the way he was confronted by the appellant, and Sudama, appellant, was armed with a knife while Moti, appellant, and Rajinder Singh accused were having Dandas. They challenged him that he will be dealt with for the leadership. Sudama gave a knife blow in the left hand side ribes while Moti gave a Lathi blow at his neck and Rajinder accused had give a Lathi blow at his forehead. Sudama further gave a tooth bite at Kanta Parshads right hand fingers Kanta Parshad raised a cry which attracted Shiv Sagar, Ram Avtar Nanda, PWs to the spot who rescued him. Kanta Parshad was taken to the hospital where ultimately, he died on 4th July, 1983. The appellants were tried and the trial Court convicted them under Sections 326/34 and 323/34, Indian Penal Code.
3. The prosecution has produced Shiv Sagar PW 8, and Ram Avtar PW 13, as eye-witnesses, and Gajraj PW 7 as the witness reaching immediately after the occurrence.
4. Dr. Deepak Parkash, PW 9, had examined Kanta Parshad at 10.30 p.m. on 28th June, 1983, and had found the following injuries :-
(i) Punctured wound vertical in direction on the left side of chest measuring 2 cm. x .5 cm. x ?. This was present on the anterior maxillary line, fresh bleeding was present. X-ray was advised for ribs.
(ii) A lacerated wound transverse in direction on the occipital region of scalp measuring 4 cm. x 0.5 cm. x bone deep. X-ray of skull was advised.
(iii) Lacerated wound on the left side of back of the chest measuring 3 cm. X 1 cm. skin deep, fresh bleeding was present.
(iv) Two lacerated wounds of the size of 2 cm. x 1 cm. skin deep and 1.5 cm. x .5 cm. x skin deep on the palmer surface of right ring and little finger, or right hand respectively. Fresh bleeding was present. There was no tenderness or swelling.
5. PW 6 Dr. Sharma had conducted the post-mortem examination on the dead body of Kanta Parshad on 5th July, 1983 and found the following injuries :-
(i) There was a wound of 2 x 1 cm. x 5 cm. deep, 3 cm. above the public symphaysis after opening the bandage of the abdomen.
(ii) There was a gapped infection wound 22 x 3 cms. on the left paramedical side of the abdomen upto the rectum sheath.
(iii) Oblique incised wound 3 cm. x 2 cms. on the left side of the chest 6 cms. deep after probing. Blood was present in the surrounding subcutaneous tissues.
(iv) Oblique incised wound 3 cms. x 1 cm 4 cm. deep, 2 cm. above the wound. Blood in the surrounding the subcutaneous tissues.
(v) Stitched wound 6 cms. oblique on the anterior-medial side of right thigh upper 1/3rd region.
(vi) Stitched wound of 4 cms. on the right upper limb on the anterolateral aspect.
(vii) 3 cms. stitched wound lower 1/3rd region both the lower limbs.
6. After opening the abdomen and thorax :-
(i) Thoracic cavity was full of blood. Lateral surface of the left lung was ruptured of the size of 1.5 x 0.5 cm. in the side.
(ii) There was irregular rupture of the spleen on the lateral side.
(iii) Abdominal cavity was full of blood, serozengineous foul smelling infected fluid was present.
(iv) Small intestine and mesentry was stitched.
7. The prosecution had also produced Randhir Singh, Head Constable, PW 19, to prove the statement of the deceased which was recorded by him on 29.6.1983 in Civil Hospital, Sonepat. That state is Exhibit P.K.
8. The appellants when examined unde
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