Hari Singh Rana & Anr. vs State
2009 Latest Caselaw 3948 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                              Reserved On : 22.09.2009
%                                         Date of decision :25.09.2009


+                               Crl.A. No. 207/2009

SUKHDEV SINGH ...                  ...    ...     ...    ...      ...     APPELLANT

                                 Through : Mr. K.K. Sud, Sr. Adv. with
                                           Mr. Kunal Malhotra and
                                           Ms. Diya D'Souza,
                                           Advocates.

                                  -VERSUS-

STATE          ...       ...         ...    ...     ...    ...   ..RESPONDENT

                                 Through : Mr. Pawan Sharma,
                                           Advocate.

                                      AND

+                               Crl.A. No. 220/2009

HARI SINGH RANA & ANR. ... ...                  ...    ...      .APPELLANTS

                                 Through : Mr. K.B. Andley, Sr. Adv. with
                                           Mr. M.L. Yadav,
                                           Advocate.

                                  -VERSUS-

STATE          ...       ...         ...    ...     ...    ...   ..RESPONDENT

                                 Through : Mr. Pawan Sharma,
                                           Advocate.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                   Yes

2.     To be referred to Reporter or not?                    Yes

3.     Whether the judgment should be
       reported in the Digest?                               Yes


Crl. A. Nos. 207 & 220 of2009                               Page No. 1 of 21
 SANJAY KISHAN KAUL, J.

1. The digging of the foundation of a plot for

construction resulted in an altercation and the

aggravation of the same is alleged to have caused the

murder of the deceased Surender Nath Pandey.

2. An incident took place in the morning of 20.10.2003

when a fight broke out between the deceased and the

appellants. The deceased confronted the appellants

for having dug the foundation in the plot. An

information vide DD Entry No. 4-A (Ex. PW - 18/A)

was received and HC Dharam Parkash was deputed to

visit the site and the matter was brought under

control at the site and the construction was stopped.

But the dispute again erupted at 11 AM when

information was received vide DD No. 11-A (Ex. PW -

18/B) resulting in the second visit of HC Dharam

Parkash who found that the appellants had again

started the activity of digging.

3. It is the case of the prosecution that on the same day,

an information was received in the police station

about the deceased having been admitted to

Safdarjung Hospital with 35 per cent burns. This

information was sent by Duty Constable Sunil Kumar,

Safdarjung Hospital and recorded at P.S. S.N. Puri as

D.D. No. 42B (Ex. PW - 13/A).

4. The MLC (Ex. PW - 14/A) shows the time of admission

of the deceased Surender Nath Pandey as 12.10 P.M.

The deceased was admitted by his niece Ms. Maya.

The MLC records that the burns are stated to be a

consequence of a quarrel of the deceased with three

persons who poured kerosene oil on the deceased

and put him on fire. The condition of the deceased

was recorded as critical, conscious and oriented, but

dehydration was (+++). SI Youdh Bir Singh reached

the hospital and sought permission to record the

statement of the deceased as per Ex. PW - 15/A. The

doctor opined that the patient was conscious and

oriented to give a statement. The statement of the

deceased was recorded, which shows that the

deceased wanted to give his statement about the

incident only after feeling better. This was so stated

by the deceased in the presence of his wife and three

other relatives including Ms. Maya as he felt that he

was not so well. The dying declaration (Ex. PW -

15/D) was recorded on 21.10.2003 by SI Youdh Bir

Singh at 9.30 AM. In terms of this statement, the

deceased was carrying on a business of dairy while

the appellants were his neighbours. It is stated that

there had been past disputes between the deceased

and the appellants and when on 20.10.2003 the

deceased tried to stop the appellants from digging,

the appellants became angry especially as the police

had intervened. The appellant Hari Singh Rana is

stated to have brought a bottle of kerosene oil on the

asking of Sukhdev Singh and poured it over the

deceased. The deceased was dragged towards the

railway line and a lit match was put to the deceased.

On the deceased shouting, the appellants are stated

to have run away. On hearing the noise of the

deceased, his niece Ms. Maya along with other people

reached the spot and extinguished the fire whereafter

Ms. Maya rushed the deceased to the hospital. The

deceased stated that he had not given the statement

earlier because he was under pain. The deceased

passed away on 21.10.2003 at 10.40 PM.

5. The FIR No. 421/2003 was registered under Section

307/34 of IPC at Police Station S.N. Puri on

21.10.2003, which was converted into one under

Section 302/34 IPC. The charge was framed against

the appellants under Section 302 r/w Section 34 of

IPC. The appellants pleaded not guilty and claimed

trial.

6. The case of the prosecution is resting primarily on this

dying declaration and the testimony of PW3 Sh.

Parmod Kumar Thakurai (brother of the wife of the

deceased) as an eyewitness whose testimony has not

been given much credence even by the Trial Court.

It may also be noticed that the niece of the deceased

Ms. Maya was not produced in the witness box and

according to the prosecution, the reason for the same

is that the IO was informed by the wife of the

deceased that she had become hostile. The learned

Sessions Judge found that there was no reason to

disbelieve the dying declaration (Ex. PW - 15/D),

which was found to be sufficiently corroborated by

the surrounding circumstances and convicted the

appellants for offence punishable under Section 302

of IPC vide Judgment dated 03.03.2009 and

sentenced them to undergo imprisonment for life and

to pay fine of Rs.5,000/- each in default to undergo

simple imprisonment for six months in terms of the

Order on Sentence dated 12.03.2009, against which

the appellants have preferred the present appeal.

7. The appellants in their defence had produced three

witnesses who have deposed that there was a fight

between the wife of the deceased and the deceased,

which resulted in the deceased pouring kerosene oil

on himself at about 11.30 AM whereafter he lit the

match stick and put himself on fire. Thus, the

defence of the appellants is that though the deceased

suffered burns, the same were on account of

kerosene oil being poured on the deceased by the

deceased himself on account of acrimony between

him and his wife and blame was sought to be put on

the appellants.

8. The prosecution in order to establish the dispute,

which occurred on 20.10.2003 examined HC Dharam

Parkash as PW - 1. The other material witness is the

wife of the deceased Smt. Satyabhama who appeared

in the witness box as PW - 2. She deposed about the

earlier dispute whereafter she went to the local MLA

seeking his intervention in view of the advice of the

deceased as according to her the appellants had

threatened her husband. She, however, admitted

that there was no prior quarrel with the appellant /

accused Mr. Ramjani @ Ramjan Mohd. nor was there

any altercation with him. The other material witness

is PW - 3, Mr. Parmod Kumar Thakurai, who is stated

to be an eyewitness and is the brother of PW - 2. He

claimed there were past quarrels between the

deceased and the appellants though he could not tell

the number of such instances, which had taken place

between November, 2002 and January, 2003. In para

40 of the impugned judgment, it has been noticed

that the evidence brought on record established the

existence of a prior dispute between the deceased

and the appellants. A perusal of the record shows

that except the testimony of PW - 2, no other

evidence has been brought on record to prove the

existence of the prior civil dispute. Even PW - 2 in her

testimony stated that there existed a prior civil

dispute between the deceased and appellant Hari

Singh Rana.

9. The important aspect to be examined in the present

appeals is whether PW - 3 can be stated to be an

eyewitness and whether his testimony would stand

scrutiny. The said witness has stated that he was

living with the deceased for the last 14-15 years and

knew all the three appellants. He claimed to be

present at the house of the deceased on 20.10.2003

when the dispute arose. He admitted in the cross

examination that he was busy in giving bath to his

buffaloes at a distance of 20 to 25 feet from the place

where kerosene oil is alleged to have been poured on

the deceased and rushed to save the deceased only

when he heard the alarm that the deceased had been

set on fire. There were about 2-3 turns from the

place where he was giving bath to his buffaloes and

the place of incident.

10. The testimony of this witness has been challenged on

the ground it would be unnatural that the brother-in-

law of the deceased did not rush the deceased to the

hospital if he was present there while niece of the

deceased took the deceased to the hospital. No

statement of PW - 3 was recorded at the time of the

incident though he claimed to be present at the time

of cremation. His statement was recorded 21 days

later. The explanation given by this witness in this

regard is that he had gone to his village to perform

the last rites of the deceased. The Trial Court has

noticed that from the admission of the said witness, it

is reflected that he cannot be actually present at the

time of the incident and may have arrived

subsequently to the recording of the dying

declaration, but the dying declaration is sufficiently

corroborated by surrounding circumstances.

11. On examination of testimony of this witness, we are

unable to give any credence to what has been stated

by PW - 3. He is the real brother-in-law of the

deceased being the brother of the wife of the

deceased. He claimed to be at a short distance from

the place of incident yet did not intervene at the

beginning of the incident but claims to have arrived

there on hearing the shouts of the deceased having

been set on fire. The said witness did not rush the

deceased to the hospital, but let niece of the

deceased do the needful. He did not even

subsequently arrive at the hospital over the two days

when the deceased was admitted nor his statement

was recorded. He disappeared after the cremation for

about three weeks whereafter his statement was

recorded. The conduct of PW - 3 is contrary to the

natural conduct of a man who was closely associated

by relationship with the deceased. This factor

coupled with the delay in recording the statement of

this witness and his deposition make the testimony of

this witness untrustworthy and unreliable. The

deceased in the dying declaration (Ex. PW - 15/D) has

mentioned about his niece rushing him to the

hospital, but does not name PW - 3 as a person who

attended to him. This seals the fate insofar as the

testimony of PW - 3 is concerned coupled with other

circumstances mentioned hereinabove.

12. The prosecution seems to have compounded its

problems by not producing the niece of the deceased

Ms. Maya. The reason for non-production of Ms. Maya

is stated to be the information received from the wife

of the deceased that Ms. Maya had turned hostile.

The question of her turning hostile would have arisen

only when she had entered the witness box and the

prosecution would have had the benefit of cross-

examining her. She was the person who had rushed

the deceased to the hospital after the incident and

was the first person to attend to the deceased. The

decision of the prosecution not to produce Ms. Maya

has thus caused prejudice to the defence of the

appellant.

13. The result of the aforesaid is that the sole basis of the

case of the prosecution rests on the dying declaration

(Ex. PW - 15/D).

14. The counsel for the appellants have contended that

the dying declaration recorded by the IO is not a

reliable piece of evidence to convict the appellants as

the courts have frowned upon the IO recording a

dying declaration. It has further been pointed out

that though the doctor had opined on 20.10.2003 at

4.10 PM that the deceased was oriented and in a

position to give statement, the deceased himself

expressed his helplessness to make such a statement

as he was under pain. The presence of the wife of the

deceased, the niece of the deceased and the other

relations is recorded in the said statement, which

shows that there was always the possibility of

influencing the mind of the deceased. It was

submitted that this also casts a doubt on the

certificate given by the doctor that the deceased was

in a fit condition to make a statement. Insofar as Ex.

PW - 15/D is concerned, it was contended that no

fresh certification was taken from the doctor about

the medical condition of the deceased to make a

statement. The certificate given earlier on 20.10.2003

at 4.10 PM could not be utilized to record the

statement on 21.10.2003 at 9.30 AM during which

period of time admittedly the medicines including

sedatives had been given to the deceased. The fact

that the deceased had suffered only 35 per cent

burns and yet passed away on 21.10.2003 shows that

the condition of the deceased deteriorated within a

short period of less than two days.

15. Learned counsel for the appellants emphasized

that the first dying declaration in the form of

MLC (Ex. PW - 14/A) does not name any persons

though the appellants were known to the deceased.

Learned counsel submitted that the stand of PW - 15

that he had verbally enquired from the doctor about

the state of the deceased before recording his

statement is falsified by the testimony of PW - 17,

Dr. Abhishekh Sharma to the effect that the IO did not

contact him after obtaining certificate Ex. PW - 17/A.

That certificate was issued on 20.10.2003 on the

application moved by the IO which is Ex. PW - 15/A.

PW - 17 further deposed that he did not accompany

the IO while recording the statement nor did he direct

any medical staff to be present at the time of

recording the statement of the deceased. He was

also unaware as to whether permission in respect of

witness was sought from any other source.

16. The testimony of PW - 15 had been referred to

contend that no Magistrate was called when the

statement of the deceased was recorded nor did the

witness remember who was the doctor on duty. He

did not even remember the number of DD entry made

on his departure from the police station nor was it

mentioned in the list of documents. After having

stated that he had verbally obtained the permission,

the witness stated that one day earlier i.e. on

20.10.2003 the doctor had given his written report

that the deceased was conscious and oriented. There

is no attesting witness to the dying declaration.

17. Insofar as testimony of PW - 2, Smt. Satyabhama is

concerned, learned counsel for the appellants

contended that even she was examined belatedly on

10.11.2003 and was not a witness to the occurrence.

Learned counsel for the appellants referred to the

judgment of the Apex Court in Ganesh Bhavan Patel

and Another v. State of Maharashtra; (1978) 4 SCC

371 to contend that delay in examining an eyewitness

by the IO amounts to serious infirmities in the

prosecution case. Learned counsel also submitted

that it cannot be lost sight that a dying declaration

stands on the same footing as another piece of

evidence and has to be judged in the light of

surrounding circumstances and with reference to the

principles governing the weighing of evidence. The

dying declaration has to be analyzed keeping in mind

the capacity of a man to remember facts stated and

to ensure that whether the same had not been

impaired by circumstances beyond his control. The

dying declaration has to be subjected to close

scrutiny keeping in view the fact that the statement

had been made in the absence of accused who had

no opportunity of testing the veracity of the

statement by cross-examination. The IO is alleged to

have not followed the norm of getting the dying

declaration recorded by a Judicial Magistrate and

further did not obtain a certificate in respect of fitness

of the declarant to make a statement on 21.10.2003.

18. Learned counsel specifically referred to Chapter 13-A,

Volume-III of Delhi High Court Rules to the following

effect:

―1. Statements made by a person as to the cause of his death or as any of the circumstances of the transaction which resulted in his death are themselves relevant facts and admissible in evidence under Section 32(1) of the Indian Evidence Act in cases in which the cause of the person's death comes into question. A statement commonly known ―dying declaration‖ constitutes such an important evidence in criminals that their Lordships of the Supreme Court ruled in Khushal v. State of Bombay (AIR 1958 SC 22), which was followed in Singh v. The State (AIR 1962 SC

439) that it could form the sole basis of conviction. It is thus necessary that a Court trying the case should have before it a correct and faithful record of the statement made by the dead person. As far as possible the dying declaration should be recorded in the manner hereinafter prescribed, and in

the event of death of the person making it, should be submitted at the enquiry or trial.

2. Dying declarations to be recorded by Judicial Magistrates--(i) Where a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of an alleged crime, is in danger of dying before the enquiry proceedings or the trial of the case commences, his statement, if possible, be got recorded by a Judicial Magistrate. When the police officer concerned with the investigation of the case or the medical officer attending upon such person apprehends that such person is in the danger of dying before the case is put in Court, he may apply to the Chief Judicial Magistrate, and, in his absence, to the seniormost Judicial Magistrate present at the headquarters, for recording the dying declaration.

(ii) On receiving such application, the Judicial Magistrate shall at once either himself proceed, or depute some other stipendiary Judicial Magistrate to record the dying declaration.

3. Fitness of the declarant to make the statement should be got examined-- Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting or the attendance of the Medical Officer, the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considered it impracticable or inadvisable to wait for a doctor's attendance.

... ... ... ... ... ... ...

7. Recording of a Dying declaration by a Police Officer or Medical Officer-- Where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall, so far as possible, be got attested by one or

more of the persons who happen to be present at the time.

8. Fitness of the Declarant to make a statement to be certified by the Judicial Magistrate or other officer concerned-- The Judicial Magistrate or other officer recording a dying declaration shall at the conclusion of the dying declaration certify that the declarant was fit to make a statement and it contained a correct and faithful record of the statement made by him as well as of the questions, if any, that were put to him by the justice recording the statement. If the accused or his counsel happens to be present at the time the dying declaration is recorded, his presence and objection, if any, raised by him shall be noted by the Judicial Magistrate or the officer recording the dying declaration, but the accused of his counsel shall not be entitled to cross-examine the declarant.‖

19. Learned counsel submitted that in the present case,

there was breach of all the aforesaid rules.

20. The appellants sought to draw strength from the

observations of the Division Bench in Raj Bahadur v.

State; 45 (1991) DLT 144 (DB) to advance the plea

that once injections or sedatives are given, normal

awareness of the deceased can be impaired.

21. Further, a Division Bench judgment of Karnataka High

Court in State of Karnataka v. Aslam alias Aslam

Pasha; 2000 Cri.L.J. 1167 was relied upon where it

was observed in para 3 as under:

―3. The learned State Public Prosecutor vehemently submitted that an exception can be made provided the Court is fully satisfied from the oral evidence and the rest of the record that the deponent was in a sound, physical and mental condition good enough to make a cogent and true dying

declaration and that where the rest of the record is generally satisfactory, the Court should not outright reject the dying declaration on this ground itself. We do not propose to recount the very sound reasons why the Court insists on the Certificate being superscribed on the dying declaration itself, the most important of them being that it represents to the Court some guarantee of the fact that at the relevant time, the doctor in-charge of the ease has applied his mind and has certified about the capacity of the patient to make a correct dying declaration. This requirement is well- known and despite this, the present one is not the only case in which we find this error having been committed. It is something that is fatal to the prosecution and therefore, we consider it equally necessary to once again reiterate that the concerned department must specifically bring it to the notice of all the public hospitals in the State and the doctors manning them that in each and every case where a dying declaration is required to be recorded that it must be done at the earliest point of time and secondly, that the doctor must correctly and carefully evaluate the physical and mental condition of the patient and certify on the dying declaration itself, if in the opinion of the doctor the patient is in a sound condition to make the statement. The evaluation will include the elementary factors such as consciousness of the patient and mental condition of the patient having regard to the pain, shock etc. as also the condition of the patient in the light of whatever drugs or pain killers that must have been administered. The Certificate is not to be mechanically issued but must be done on the basis of a careful and thorough evaluation. This is necessary because a dying declaration is a very strong piece of evidence and a hundred percent valid dying declaration could form the basis of a conviction whereas on the other hand the accused will have no opportunity to test its correctness as the deponent has already died. We desire that hereinafter steps be taken to ensure that no laches or errors take place even in a single case and if it does, for reasons of negligence or dishonesty, stringent disciplinary action will follow.

The learned State Public Prosecutor to forward a copy of this order to the Director of Health Services and the Secretary to the Government, Department of Health with a request that the guidelines be communicated in writing to all Govt. hospitals and doctors in the State in order to ensure that such errors do not take place in future.‖

22. The Full Bench judgment of the Supreme Court in

Tarachand Damu Sutar v.The State of Maharashta;

AIR 1962 SC 130 was referred to contend that a dying

declaration is not to be believed merely because no

possible reason can be given for accusing the

accused falsely. It can only be believed if there are

no grounds for doubting it at all.

23. Learned counsel for the State on the other hand has

supported the impugned judgment by contending that

there is no ground whatsoever to doubt the dying

declaration.

24. We find from a reading of the impugned judgment

that the learned Trial Court appears to have been

weighed by the fact that undoubtedly the deceased

died due to burns caused on account of kerosene oil

being poured on him and a lit match being put on

him. If the appellants did not do so who could have

done it? Thus, considerable emphasis has been laid

by referring to various judgments on the proposition

that justice system would break down and lose

credibility if the principle that a thousand guilty men

may go scot free, but one innocent person shall not

suffer is taken to its extreme.

25. It is also not in doubt that the dying declaration made

by a person on the verge on the death has a special

sanctity as the person is most unlikely to make any

untrue statements in the shadow of impending death.

This is the reason why a dying declaration is given

special weightage as per Section 32 of the Indian

Evidence Act, 1872 as ‗truth sits on the lips of a dying

man'. Simultaneously, it cannot be lost sight of that,

in case of a dying declaration, the accused does not

have an opportunity to cross-examine the witness.

The dying declaration can be the sole basis of

conviction if it inspires full confidence of the court and

the rule of corroboration is merely a rule of prudence

as observed in Muthu Kutty and Anr. v.State; (2005) 9

SCC 113. In the facts of the case, the doctor had not

certified the condition of the declarant but the

testimony of the doctor who was present when the

dying declaration was recorded came to the

assistance of the prosecution.

26. We find force in the contention of learned counsel for

the appellants the dying declaration is not free from

doubt. The certificate given by the doctor for

recording the dying declaration, the patient being

conscious and oriented, was on 20.10.2003 at 4.10

PM. Despite this fact, the deceased did not find it

feasibly to narrate his side of the story as he was

under pain. The deceased did give a 7-8 line

statement stating his condition and that an incident

had occurred on 20.10.2003, but stated that he would

give details when he felt better. The name of the

appellants was not taken as the persons who carried

the heinous act. The MLC (Ex. PW - 14/A) recorded

that the deceased was brought to the hospital by the

niece of the deceased Ms. Maya only talks about

three persons but does not refer to the appellants

even though they were the neighbours of the

deceased and known persons. The dying declaration

(Ex. PW - 15/D) was recorded on 21.10.2003 at 9.30

AM without obtaining a certification from the doctor or

in the presence of a doctor. The IO claimed that he

alone was present. The IO did not take care to obtain

the presence of a SDM or a Magistrate to record the

statement of the deceased since generally recording

of a dying declaration by IO is to be discouraged

unless the facts are such that delay can be fatal. The

deceased was administered various medicines

including sedatives. As to what would be the mental

state of the deceased when the statement was being

recorded remains a question mark. The IO claims to

have obtained a verbal consent of the doctor, but in

the same breath stated that the written consent was

obtained on the previous day. PW - 17, the doctor,

has denied that he was ever asked about the medical

state of the deceased before recording the statement

on 21.10.2003. The deceased passed away on

21.10.2003 at 10.40 P.M. The deceased having only

35 per cent burns succumbed to the injuries within

two days and thus obviously his condition was not

good and deteriorated. The MLC itself records that

his condition was critical and dehydration was (+++).

In such a situation, to rely on the dying declaration

recorded by the IO without any medical certificate or

presence of witness as the sole piece of evidence to

convict the appellants would not be free from doubt.

27. We feel the present case is one where the

investigation has been botched by the IO. The

infirmities in the case of the prosecution could easily

have been taken care by recording the dying

declaration in a proper manner and ensuring that the

testimony of eye-witnesses was recorded promptly.

There was no reason not to produce Ms. Maya, niece

of the deceased, who reached the spot and rushed

the deceased to the hospital merely on an information

received from the wife of the deceased that she has

turned hostile. This deprived the prosecution of the

opportunity to confront Ms. Maya even if she would

have turned hostile. The appellants are getting the

benefit only because of the manner in which the

prosecution has proceeded with the case and we

strongly deprecate the conduct of the IO of the case.

We have no option but to allow the appeal and set

aside the conviction and sentence giving benefit of

doubt to the appellants.

28. The appellants are directed to be released forthwith if

not wanted in any other case.

SANJAY KISHAN KAUL, J.

September 25, 2009 AJIT BHARIHOKE, J. dm