Whether the court should disbelieve the dying declaration if the deceased's relatives were present in the hospital when her dying declaration was recorded?

Further, merely

because the parents and other relatives of the deceased

were present in the Hospital, when the statement of the

deceased was recorded, it cannot be said that the said

statement was a tutored one. It is quite natural that

when such an incident happens, the parents and other

relatives try to reach the hospital immediately. Merely

because they were in the hospital, the same is no

ground to disbelieve the dying declaration, recorded by

the Magistrate, who was examined as PW-16.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.261 OF 2021

Satpal  vs.  State of Haryana 

Author: R.SUBHASH REDDY,J.

Dated: March 03, 2021

1. Leave granted.

2. This appeal has been filed by the accused in

Session Case No.20 of 2008, on the file of the learned

Additional Sessions Judge, Yamuna Nagar at Jagadhri,

aggrieved by the judgment and order dated 05th

September, 2016, passed by the High Court of Punjab and

Haryana at Chandigarh, whereby, his conviction and

order of sentence, for offence under Section 302 of the

Indian Penal Code (IPC), was confirmed.

3. On information received from J. P. Hospital,

Yamuna Nagar, regarding admission of the deceased,

Pooja Rani, on account of burn injuries, a case was

registered in FIR No. 112 on 20.03.2008, initially

under Section 307 read with Section 34 of the Indian

Penal Code and on death of Pooja Rani i.e. on

27.03.2008, Section 302 of the Indian Penal Code was

added. On receipt of information, Mr. Ishwar Singh,

A.S.I. of Police Station City, Yamuna Nagar, went to

the J. P. Hospital along with other police officials

and noticed that the deceased suffered 90 per cent

injuries and at that stage, she was declared fit to

make statement. On the request of the police, Ms. Kumud

Gugnani, Judicial Magistrate, First Class, Yamuna

Nagar, Jagadhri, recorded the statement of deceased,

Pooja Rani.

4. In the declaration, recorded by the Judicial

Magistrate, First Class, Yamuna Nagar, Jagadhri, the

deceased has stated that the appellant / accused has

poured kerosene oil and set her ablaze. After

investigation, Charge-Sheet was filed against the

appellant / accused and three others namely Kamlesh,

Mitter Sain and Anjali, mother-in-law, brother-in-law

and sister-in-law respectively of the deceased.

However, vide order dated 12.08.2008, the other accused

persons were discharged and charge was framed against

the appellant herein, for offence punishable under

Section 302 of the IPC, to which he pleaded not guilty

and claimed trial.

5. To prove the charge framed by the appellant

herein, the prosecution examined C. Narender Kumar as

PW-1, C. Ram Kumar as PW-2, Jai Pal, ASI as PW-3, EHC

Prem Singh as PW-4, Varsha Rani as PW-5, Kashmiri Lal

as PW-6, Pyara Singh, Inspector as PW-7, Jai Kishan,

ASI as PW-8, Dr. Manisha Singh as PW-9, EHC Satwinder

Singh as PW-10, Raj Kumar, SI as PW-11, Lal Singh, ASI

as PW-12, Dr. Amit Goel as PW-13, Balraj Singh, ASI as

PW-14, Ishwar Singh, ASI as PW-15 and Kumud Gugnani as

PW-16.

6. When the statement of the appellant under Section

313 of the Code of Criminal Procedure (Cr.P.C.) was

recorded, the appellant denied the allegations levelled

against him and pleaded that he was falsely implicated

inasmuch as the deceased, Pooja Rani, was under a

misconception that he had illicit relations with Anjali

(sister-in-law). On behalf of the appellant / accused,

no witnesses were examined.

7. The Trial Court, by appreciating oral and

documentary evidence on record, by judgment and order

dated 03.11.2009, convicted the appellant for offence,

punishable under Section 302 of the IPC and sentenced

him to undergo rigorous imprisonment for life and to

pay fine of Rs.10,000/- with a default clause to

undergo further rigorous imprisonment of two years.

8. Aggrieved by the conviction recorded and sentence

imposed by the learned Additional Sessions Judge,

Yamuna Nagar, Jagadhri, the appellant herein, preferred

Criminal Appeal No. D-147-DB of 2010 before the High

Court of Punjab and Haryana, at Chandigarh. The High

Court, vide impugned judgment and order dated 05th

September, 2016, dismissed the appeal by confirming the

conviction recorded and sentence imposed on the

appellant.

9. We have heard Mrs. Nanita Sharma, learned counsel

appearing for the appellant and Mr. Deepak Thukral,

learned Dy. A.G., appearing for the respondent-State.

10. Learned counsel for the appellant has contended

that though, the evidence on record led by the

prosecution, is not sufficient to prove the guilt of

the accused, the Trial Court has erroneously convicted

the appellant for offence under Section 302 of the IPC

and the same was confirmed by the High Court without

considering various grounds, raised on behalf of the

appellant. It is, further, contended by the learned

counsel that the conviction is mainly based on the

dying declaration, recorded by the Magistrate, who was

examined as PW-16. It is submitted that the dying

declaration was tutored one and the same was made at

the instance of family members of the deceased, who

were there with the deceased in hospital at the

relevant time. It is submitted that, in fact, when the

deceased made attempt to commit suicide, the appellant

has tried his best to extinguish the fire. Lastly, he

has submitted that the conviction, recorded by the

Trial Court, as confirmed by the High Court, is fit to

be set aside by this Court.

11. On the other hand, the learned Dy. A.G., appearing

for the State, has contended that the prosecution has

proved the guilt of the accused for offence under

Section 302 of the IPC beyond reasonable doubt. It is

submitted that immediately on receipt of information,

Mr. Ishwar Singh, ASI went to the hospital, along with

other police officials and found that the deceased has

suffered 90 per cent injuries, but she was in a fit

condition to make statement. It is submitted that, on

request, Ms. Kumud Gugnani, the then Judicial

Magistrate, First Class, Yamuna Nagar, Jagadhri,

recorded the statement of deceased, Pooja Rani under

Exhibit ‘Ex-PL’, wherein she stated that she was

married to the appellant three years prior to the

incident and that the appellant was under the influence

of his brother’s wife and used to act on her

instigation. In the statement recorded, the deceased

clearly stated that the appellant has poured kerosene

oil on her and set her ablaze. It is submitted that

merely because her family members have reached the

hospital, on coming to know of the burn injuries,

suffered by the deceased, it cannot be said that the

declaration made by the deceased before the Magistrate

was a tutored one. It is submitted that at the time of

recording of statement of deceased, all the family

members were sent out and the statement was recorded,

as deposed by the deceased. It is submitted that if the

entire evidence is considered, it clearly proves the

case of the prosecution for offence under Section 302

of the IPC. It is submitted that the evidence on record

is properly appreciated by the Trial Court as well as

the High Court, and in view of the concurrent findings,

recorded by both the Courts below, no case is made out

to interfere with the same.

12. Having heard learned counsels on both sides, we

have perused the impugned judgment, judgment of the

Trial Court and other material evidence placed on

record.

13. In this case, it is to be noticed that, at first

instance, on coming to know that the deceased, Pooja

Rani, was admitted to hospital with the burn injuries,

as informed by the police, the ASI went to the hospital

along with other police officials. When it was noticed

that the deceased has suffered 90 per cent injuries and

was in a fit condition to make a declaration, he sent a

request to the concerned Magistrate, upon which, the

Judicial Magistrate, First Class, Yamuna Nagar,

Jagadhri, recorded the statement of the deceased, Pooja

Rani, which was exhibited as Ex-PL. In her dying

declaration, she has clearly stated that the appellant

has poured Kerosene Oil on her and set her ablaze.

Though, the family members of the appellant were also

chargesheeted, they were subsequently discharged vide

Order dated 12.08.2008. On information given to the

parents of the deceased, they have come to hospital.

The deceased, Pooja Rani was admitted in the hospital

on 20.03.2008 and ultimately, succumbed to injuries on

27.03.2008. It is also clear from the material

evidence, placed before this Court, that though the

family members of the deceased were in the hospital,

they were sent out, when the dying declaration was

recorded by the Magistrate, who was also examined on

behalf of the prosecution as PW-16.

14. If we look at dying declaration, recorded by the

Magistrate, it looks natural and no reason to

disbelieve the same. In addition to the dying

declaration, the statements of PW-5 and PW-6, who are

mother and maternal uncle respectively of the deceased,

corroborate the case of prosecution. It is clear from

their statements that the deceased was tortured at the

hands of the appellant and his family members. The

Magistrate, in her deposition, has clearly stated that

the relatives of deceased, Pooja Rani, were not there

at the time of recording dying declaration of the

deceased.

15. Further, it is also relevant to notice here,

though the appellant has stated in his statement,

recorded under Section 313 of Cr.P.C., that many

persons from the neighbourhood came to the house of the

appellant at the time of incident, no one was examined

on his behalf.

16. If the dying declaration, recorded by PW-16, is

considered along with the depositions of PW-5, PW-6 and

other witnesses, who were examined on behalf of the

prosecution, it clearly establishes the guilt of the

appellant, beyond reasonable doubt, as such, we find no

merit in any of the contentions, advanced by the

learned counsel for the appellant. Further, merely

because the parents and other relatives of the deceased

were present in the Hospital, when the statement of the

deceased was recorded, it cannot be said that the said

statement was a tutored one. It is quite natural that

when such an incident happens, the parents and other

relatives try to reach the hospital immediately. Merely

because they were in the hospital, the same is no

ground to disbelieve the dying declaration, recorded by

the Magistrate, who was examined as PW-16.

17. For the above stated reasons and the reasons

recorded by the High Court, we are of the view that

there is no error committed in the impugned judgment

and order, so as to interfere with the same in this

Appeal. This Criminal Appeal is devoid of merits and

the same is accordingly dismissed.

..........................J.

(ASHOK BHUSHAN)

..........................J.

(R. SUBHASH REDDY)

NEW DELHI;

March 03, 2021