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2011 (7) Supreme 233
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Surinder Kumar — Appellant(s)
versus
State of Haryana — Respondent(s)
Criminal Appeal No. 328 of 2004
Decided on : 21-10-2011
(1992) 2 SCC 474; (1976) 3 SCC 104; (1985) 1 SCC 552; (1983) 1 SCC 211; (1976) 3 SCC 618; (1974) 4 SCC 264; 1981 Supp SCC 25; (1981) 2 SCC 654; 1980 Supp SCC 455; 1980 Supp SCC 769; 1988 Supp SCC 152; (1989) 3 SCC 390; (1982) 1 SCC 700; (2010) 6 SCC 566; (2008) 17 SCC 190 – Relied upon
(b) Evidence Act, 1872 – Section 32 – Dying declaration – Doctor not present at the time of recording of dying declaration – Later opining that the patient was fit to make statement – Procedure not acceptable. (Para 11)
(c) Evidence Act, 1872 – Section 32 – Dying declaration – Executive Magistrate not certifying about the declaration being voluntary and about his reading over the same to the deceased – Doctor not attesting the declaration – Statement made in mixed dialect of Hindi and Punjabi but recorded only in Hindi – Being under influence of medicines, deceased not having mental alertness – Declaration shrouded by suspicious circumstances, not acceptable. (Para 12)
(d) Administration of Justice – Judicial Review – Valid and well reasoned judgment of the trial Court is seldom set aside unless it was perverse or not based on correct law. (Para 13)
(e) Criminal Trial – Conviction – Relevant witnesses including children of the deceased not examined – Discrepancy in time of death – Dying declaration also suspicious – Accused not liable to conviction. (Para 14)
Facts of the case:
This is a case of conviction by High Court setting aside the order of acquittal passed by the Session’s Court and it discuses acceptability of dying declaration.
Finding of the Court:
High Court erred in setting aside the valid and well reasoned judgment of the trial court.
JUDGMENT
P. Sathasivam, J. —
1) This appeal is directed against the final judgment and order dated 19.12.2003 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 241-DBA of 1993 whereby the High Court while reversing the judgment dated 17.12.1992 passed by the Sessions Judge, Ambala allowed the appeal filed by the State and convicted the appellant herein under Section 302 of the Indian Penal Code, 1860 (in short ‘IPC’) and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year.
2) Brief facts:
(a) According to the prosecution, the accusation against the appellant-accused was that he was on visiting terms to the house of Inder Pal (PW-7), husband of Kamlesh Rani (since deceased), who was working at Mullana and keeping his family at Naraingarh, Dist. Ambala, Haryana. The appellant-accused had been visiting Inder Pal’s house and developed illicit relationship with his wife-Kamlesh Rani. Inder Pal (PW-7) suspected the same between them and stopped his wife from meeting the appellant-accused. When the appellant-accused was stopped to visit their house, he had started threatening and harassing Kamlesh Rani for which she made a complaint to her husband. Inder Pal (PW-7) also visited the shop of the appellant-accused and told him not to visit his house and harass his wife.
(b) On the intervening night of 25/26.06.1991, when Inder Pal (PW-7) was away from his house, the appellant-accused went to his house and taunted his wife that she had become a woman of immoral character and called upon her to burn herself to death if she had any sense of shame. Thereafter, the appellant-accused picked up a kerosene can lying in the one room apartment and after pouring the same on the deceased, set her on fire. When the fire developed, the appellant-accused ran away from the room after placing a quilt on the deceased. The neighbours of the deceased took her to the Civil Hospital, Naraingarh where she was examined by Dr. Ashwani Kumar Kashyap, Medical Officer (PW-1). He immediately sent intimation to In-charge Police Station, Naraingarh to the effect that the deceased had been brought to the hospital with 100% burns, and as the condition of the patient was critical she had been referred to P.G.I., Chandigarh. At P.G.I. Chandigarh, she was admitted in the Emergency Ward and Dr.Vipul Sood (PW-9) examined her and reported a case of 95% burn injuries.
(c) On receiving the information, Dalip Rattan (PW-3), Sub-Inspector, P.S. West, Chandigarh applied to the Sub-Divisional Magistrate, Chandigarh for appointment of an Executive Magistrate to record the statement of Kamlesh Rani. Consequently, Shri P.K. Sharma, Tehsildar-cum-Executive Magistrate (PW-2) was deputed to record her statement. On 26.06.1991, PW-2 recorded her statement and a First Information Report was registered being No. 86/1991 at P.S. Naraingarh at 5.30 p.m. under Section 307 IPC. On the intervening night of 28/29.06.1991, Kamlesh Rani succumbed to the injuries and the case was converted into Section 302 IPC. Thereafter, Ram Niwas (PW-13), Sub Inspector, P.S. Ambala, arrived at P.G.I., Chandigarh and prepared the inquest report. Post mortem was conducted at General Hospital, Sector 16, Chandigarh by Dr. V.K. Chopra and Dr. Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m. On the same day, the accused was arrested and the case was committed to the Court of Sessions.
(d) The Sessions Judge, Ambala, after analyzing the evidence and after giving the benefit of doubt, vide judgment dated 17.12.1992 acquitted the appellant-accused.
(e) Challenging the said judgment, the State of Haryana filed an appeal bearing Criminal Appeal No. 241-DBA of 1993 before the Division Bench of the High Court. The High Court, vide judgment dated 19.12.2003, reversed the judgment of the Sessions Judge, Ambala and sentenced the appellant-accused to rigorous imprisonment fo
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