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2012 Supreme(P&H) 1602
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Swatanter Kumar
The Hon’ble Mr. Justice Madan B. Lokur
Criminal Appeal No. 766 of 2008
Krishan
v.
State of Haryana
{Decided on 13/12/2012}
For the Respondent:Mr. Kamal Mohan Gupta, Mohd. Zahid Hussain, Mr. Sanjeev Kumar, Advocates.
Headnote:Dying Declaration--Hostile witness--Hostility of prosecution witnesses cannot demolish the value and reliability of the dying declaration of the deceased which has been proved in accordance with law.
(A) Evidence Act, 1872, S.32--Dying Declaration--It is an absolute principle of law that a dying declaration can form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with the established practice and principles. (Para 18)
(B) Indian Penal Code, 1860, Ss.302 & 498-A--Cruelty to wife--Bride burning after 19 years of marriage--Dying Declaration--Hostile witness--Hostility of prosecution witnesses cannot demolish the value and reliability of the dying declaration of the deceased which has been proved in accordance with law--Same is reliable and in fact, to some extent, finds corroboration from the statements of other witnesses--Conviction upheld--Evidence Act, 1872, S.32. (Para 26)
(C) Indian Penal Code, 1860, Ss.302 & 498-A--Cruelty to wife--Bride burning after 19 years of marriage--Dying Declaration--Hostile witness--Social set up in rural areas, the fact that another daughter, sister of the deceased had been married in the same family, gives a definite indication as to the reason why relative witnesses turned hostile--Hostility of these witnesses would, in no way, render the dying declaration doubtful, much less inadmissible or of no evidentiary value--The hostility of the witnesses is a relevant consideration, but is not the sole determinative factor for deciding the guilt or otherwise of an accused--Evidence Act, 1872, S.32. (Para 23)
(D) Evidence Act, 1872, S.32--Murder--Dying Declaration--Burning of wife--75% burns--Thumb Impression on Dying Declaration--Contention that as per statement of Doctor both hands of deceased were burnt, including fingers and Thumb, therefore her thumb impression could not have been taken on dying declaration--Contention rejected--Held; As no specific question was put to the doctor that the extent of burns was such that her thumb impression could not have been taken--Not even a suggestion was made to the doctor and the Investigating Officer to the effect that it was not possible to take the thumb impression of the deceased in the state of health that she was in--Who performed the autopsy on the dead body of deceased clearly noticed that there were superficial to deep burns all over the body except her lower parts of both thighs, both legs and feet--In other words, it is not only possible but quite feasible that her thumb impression could rightly be taken--Indian Penal Code, 1860, Ss.302 & 498-A--Criminal Procedure Code, 1973, S.291. (Para 21)
Mr. Swatanter Kumar, J.: - This appeal is directed against the judgment of conviction and order of sentence dated 17th July, 2007 passed by the High Court of Punjab and Haryana at Chandigarh whereby the High Court reversed the judgment of acquittal passed by the Trial Court against the accused Krishan. However, it maintained the acquittal of another accused Shardi, mother of the accused Krishan.
2. In brief, the facts are that Ex. PH/1, FIR No. 134 was registered against accused Shardi and Krishan under Sections 307, 498A, 109 read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”) on 30th March, 1998. This FIR was registered in furtherance of the rukka, Ex.PH, received by the Police Station Sadar Narwana, from Civil Hospital, Jind. After receiving the rukka ASI Umed Singh, PW9 along with police officers reached the Civil Hospital, Narwana. That police officer obtained the evidence certificate in respect of Smt. Rani, wife of Krishan. She was admitted to the hospital with burn injuries. The doctor declared Rani fit to make the statement and also provided her medico-legal report to the Investigating Officer. Since Rani’s condition was serious, the Investigating Officer summoned Sh. Baljit Singh, then SDJM Narwana for the purpose of recording the statement of Rani.
3. On the request of the police, the said SDJM came to the hospital and proceeded to record the statement of Rani. The statement of the deceased was recorded on 30th March, 1998 at about 11.40 a.m. As per the dying declaration, Ext. PR/2 she was married to Krishan approximately 18-19 years ago. Krishan was addicted to liquor and used to harass her. When she served food to Krishan, he would throw away the thali on the ground.
4. From this wedlock, two sons were born aged 9 years and 7 years respectively. According to Rani, accused Krishan used to give her beatings whenever he was under the influence of liquor. Krishan also used to make demands for a car, and used to ask Rani to bring money to purchase the car from her father. She also stated that her father-in-law used to help her, but mother-in-law never helped. Shardi, mother of the accused used to instigate him.
5. On the fateful day, Rani herself took kerosene oil from the store at about 7 a.m. in the morning to burn the stove. At that time, her husband poured the kerosene oil on her body and set her on fire. On the night previous to the occurrence, Krishan had come with his friend Bedu, son of Teka and asked her to prepare tea which she prepared and served to both of them. According to Rani, when she was set on fire by the accused, her father-in-law and sister-in-law extinguished the fire and seeing them even her husband helped in putting off the fire. The father-in-law and sister-in-law had come to the place of occurrence after hearing her screams, but none of them were present when the accused Krishan had sprinkled kerosene on her body.
6. Vide Ext. PJ, PW9 had sought the opinion of the doctor, which was recorded vide Ext. PJ/1 wherein it was stated that “patient is fit to make her statement”. The Investigating Officer then requested the SDJM to record the statement of the deceased which then was recorded vide Ext. PR/2 and thumb impression of Rani was taken. This was signed by the SDJM.
7. Based upon the dying declaration made by the deceased, FIR was registered under Sections 498A, 307, 109 and 34 IPC. However, subsequently on 2nd April, 1998 Rani died and the offence was converted to Section 302 IPC and FIR accordingly amended. The Investigating Officer prepared the site plan, recorded statement of PWs and prepared the Inquest Report, Ext.PN, with regard to the dead body of Rani. The doctor, PW14, who performed the post-mortem upon the body of the deceased and noticed the condition of the body and injuries upon the body of the deceased stated in his statement as follows:-
“On dated 3.4.98 vide PMR No. 325/98 I conducted the autopsy of the dead body of Rani wife of Krishan Balmiki by Cas
