Punjab-Haryana High Court
Rattan Lal & Ors vs State Of Haryana on 11 November, 2024
Author: Karamjit Singh
Bench: Karamjit Singh
Neutral Citation No:=2024:PHHC:146151-DB
CRA-D-154-DB-2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-154-DB-2012
Reserved on 30.08.2024
Date of decision: 11.11.2024
Rattan Lal @ Rattan kumar and others
...Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH
HON'BLE MR. JUSTICE KARAMJIT SINGH
Argued by:Mr. Vinod Ghai, Sr. Advocate with
Mr. Arnav Ghai, Advocate for the appellants.
Mr. Ashok S. Chaudhary, Addl. A.G. Haryana.
KARAMJIT SINGH, J.
The instant appeal is directed against the
judgment and order dated 12.01.2012 passed by the
learned Sessions Judge, Sirsa, in case bearing FIR No.21
dated 23.02.2009 registered under Sections 306, 498-A,
511 IPC Police Station Nathusari Chopta District Sirsa, vide
which the appellants were convicted and sentenced to
undergo rigorous imprisonment for life and to pay a fine of
Rs.10,000/- each, and in default of payment of fine, to
further undergo simple imprisonment for three months,
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under Section 302 read with Section 34 IPC.
2. Briefly stated the case of the prosecution is that
on 23.02.2009, PW-10 SI Sita Ram, who was present in
Police Station Nathusari Chopta, received a telephonic
message from MHC, Police Station City Sirsa regarding
admission of Anuradha wife; Karamjit (son) and Simran
(daughter) of Rattan Lal, resident of village Nejia Khera, in a
burnt condition in General Hospital Sirsa. On this, PW-10
telephonically informed PW-18 Inspector/SHO Daljit Singh,
who directed PW-10 SI Sita Ram to approach the Magistrate
concerned for recording a dying declaration of injured. PW-
10 went to the Government Hospital Sirsa and moved an
application Ex.PR to seek opinion about the medical
condition of Anuradha and the concerned duty Doctor
declared her fit to make statement. Then, PW-10 SI Sita
Ram approached the duty Magistrate Sirsa with a request to
record the statement of Anuradha, on which the Magistrate
concerned directed him to firstly initiate proceedings as per
Rules. Accordingly, PW-10 informed PW-18 Inspector Daljit
Singh. Then PW18 reached General Hospital, Sirsa and
recorded the statement of injured Anuradha wherein she
stated that she got married with Rattan Lal of village Nejia
Khera and they were having two children and on that day at
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about 9/9.30 a.m. she set herself and both her children
Karamjit and Simran, on fire by pouring kerosene oil
because she was annoyed with her husband as he did not
use to come to the house and she also set on fire both the
children as their future was uncertain after her death. She
further stated that she studied upto 8th class. Injured
Anuradha after understanding the contents of aforesaid
statement and accepting the same to be correct appended
her right thumb impression thereunder, as she was unable
to put her signatures. PW18 obtained medical papers from
the Medical Officer concerned, who opined that Anuradha
had suffered 90% burns, whereas Karamjit and Simran
suffered 75% to 80% and 90% to 95% burns, respectively.
On finding commission of offence punishable under
Sections 306, 498-A, 511 IPC, PW18 made his endorsement
below the aforementioned statement of Anuradha and then
sent the same to Police Station through Constable Ashok
Kumar and resultantly the FIR was registered in the present
case. The investigation of the case was initiated. Thereafter,
on the same day, separate request was made to the Duty
Magistrate concerned to record the statement of Anuradha
under Section 164 Cr.P.C. The Duty Magistrate concerned
reached Civil Hospital Sirsa and after obtaining opinion
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regarding fitness of the injured to make statement, recorded
her statement wherein she stated that her husband Rattan
Lal, her mother-in-law, sister-in-law (Jethani) and brother-
in-law (Jeth) had set her ablaze after pouring kerosene oil
and they had been harassing her for the last so many days
and also used to beat her and they also set on fire both her
children along with her. She further stated that one another
woman was the cause of quarrel. She requested that her
children be handed over to her parents and the accused be
awarded severe punishment.
3. Later on injured Anuradha was shifted to a
Private Burn Hospital at Hisar on the same very day i.e.
23.02.2009. However Karamjit aged about 6 years and
Simran aged about 1 ½ year died, while they were being
shifted to hospital at Hisar. Post mortem examination on
the dead bodies of both children was conducted at General
Hospital Sirsa on 24.02.2009 and Offences under Section
302, 307 read with Section 34 IPC were added. Accused
Rattan Lal was arrested. Anuradha, who was undergoing
treatment in a private hospital at Hisar also succumbed to
her injuries on 26.02.2009 in the early morning. Post-
mortem on her dead body was conducted on the same very
day. During investigation which was verified by Deputy
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Superintendent of Police, accused Diwan Singh (father-in-
law), Narsi (elder brother of Diwan Singh), Raj Kumar (Jeth)
Raman Devi (Jethani), Meera (Nanad) and Indero Devi
(mother-in-law) of deceased Anuradha were found innocent.
On completion of investigation Police presented its final
report and challaned accused Rattan Lal under Section 306
IPC.
4. The Court of Ilaqa Magistrate committed the case
to the Sessions Court. The trial Court on finding a prima
facie case framed charge against accused Rattan Lal under
Section 302 IPC to which he pleaded not guilty and claimed
trial.
5. While the prosecution was at the stage of
recording its evidence, it had moved an application under
Section 319 Cr.P.C to summon Indero Devi, Raj Kumar,
Raman Devi, all residents of village Nejia Khera as
additional accused. The said application was allowed by the
trial Court and Indero Devi, Raj Kumar, Raman Devi were
summoned as additional accused to face trial along with
Rattan Lal.
6. On receiving the notice/summons, the aforesaid
additional accused appeared in the trial Court. Finding a
prima facie case, charge was framed under Section 302 read
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with Section 34 IPC against Rattan Lal and all the above
stated additional accused, to which they did not plead guilty
and claimed trial.
7. In order to prove its case, the prosecution had
examined PW-1 is Dr. S.K. Soni Burn Hospital, Hisar who
produced the bed head ticket of the deceased who was
admitted in his hospital on 23.02.2009 with history of 100%
burns and was treated by his son Dr. Rajat Soni; PW-2
Archana Aggarwal, MO, General Hospital Sirsa, who proved
post mortem report Ex.P-B, diagram showing the seat of
burn injuries Ex.P-B/1 and police request Ex.P-C which
was accompanied by the inquest report Ex.P-D of Simran;
PW3- Dr. Kuldeep Sain, Medical Officer, CHC, Ellanabad,
District Sirsa, who proved post mortem report Ex.P-F of
Karamjit; PW4- Rajesh Kumar, resident of village
Chaharwala, District Sirsa, who deposed regarding the
marriage of the deceased with Rattan Lal and the alleged
demands of dowry raised by her in-laws; PW5- ASI
Narender Singh, who prepared the inquest reports Ex.P-D
and Ex.P-G of Simran and Karamjit; PW6- MHC Narender
Kumar who recorded FIR Ex.P-I/2 on the basis of ruqa
Ex.P-I; PW-7 Prem Kumar (complainant); PW8-S.K. Sharma,
JMIC, Chandigarh (the then JMIC, Sirsa, who had recorded
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the second dying declaration); PW9-HC Mahabir Singh, who
proved copy of special report (FIR) Ex.P-I/2; PW10- SI Sita
Ram; PW11-Dr. Joginder Singh Incharge Scene of Crime
team, who proved his report Ex.PS; PW-12 Constable
Mukesh Kumar, who had deposited the sealed parcels in
FSL Madhuban; PW13-Dr. Vikas Bhadoo, Medical Officer,
General Hospital Sirsa, who proved medico legal report
Ex.P-U, pictorial diagram Ex.P-U/1 and bed head ticket
Ex.P-U/2 of Anuradha, medico legal report Ex.P-V and
pictorial diagram Ex.P-V/1 of Karamjit and medico legal
report Ex.PW and pictorial diagram Ex.PW/1 of Simran;
PW-14 Dr. Manjula, Medical Officer, General Hospital Hisar,
who deposed as regards conducting of post mortem
examination on the dead body of Anuradha and proved
inquest report Ex.P-BB and post mortem report Ex.P-CC;
PW15-ASI Subhash Chander deposed that on 26.02.2009
he prepared inquest report Ex.P-BB of dead body of
deceased-Anuradha; PW16-HC Sita Ram, who handed over
the sealed parcels to Constable Mukesh Kumar for
depositing the same with DFSL Madhuban; PW-17 Radhey
Sham Draftsman in the office of SP Sirsa proved scaled site
plan Ex.P-EE of place of occurrence; PW-18 Inspector Daljit
Singh (Investigating Officer) and PW-19 Dr. Rajat Soni of
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Soni Burn Hospital Hisar, who proved bed head ticket
Ex.P-JJ of the patient Anuradha. Besides that several
documents were also tendered into evidence. Thereafter,
statements of the accused under Section 313 Cr.P.C. were
recorded. The entire incriminating material were put to the
accused, which they denied and pleaded their false
implication. In defence, one Sahab Ram S/o Sh. Ram Dhan,
was examined by the prosecution.
8. The learned trial Court, after taking into
consideration the rival contentions and evidence on record,
convicted the accused of the offence under Section 302 read
with Section 34 IPC and sentenced them as noticed above,
by recording the following findings:-
(i) The testimony of the Investigating Officer PW18-
Daljit Singh, that the second dying declaration recorded
by S.K., Sharma, Judicial Magistrate 1st Class, Sirsa,
contained a tutored version, is not tenable as the
Investigating Officer has toed the line to make out a case
under Section 306 IPC, in view of the statement (Ex.P1) of
the deceased.
ii) There is nothing on record that Investigating Officer
had recorded the statement (Ex.P1) of the deceased in the
presence of any Doctor, Nurse or any other person and,
thus, the said statement is liable to be discarded.
iii) The second dying declaration Ex.PO made by the
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deceased before the Judicial Magistrate 1st Class, Sirsa
inspires confidence.
iv) The link evidence stands proved from the testimony
of PW12-Constable Mukesh Kumar and PW16-H.C. Sita
Ram. There was no tampering with the sealed parcels and
the case property during the period it remained in the
police possession.
9. The learned Senior counsel for the appellants has
submitted that the appellants were falsely implicated in the
present case and the impugned judgment and order of the
trial Court are not sustainable. It has been further argued
that from the very initial stage, the prosecution tried to
project that the in-laws of deceased-Anuradha used to
demand dowry from her parents and they also subjected
her to cruelty and when their demands were not met, the
accused persons committed murder of Anuradha and her
children by setting them ablaze. It has been further argued
that it has come on record that one boy, namely, Vikram of
the village of accused, used to visit Anuradha in her
matrimonial home, which was objected to by her in-laws
and other inhabitants of village and due to the aforesaid
relationship, the deceased had ended her life by committing
suicide on 23.02.2009 and at that time she also set on fire
her two children, as she was worried about their future,
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after her death. The learned Senior counsel has further
argued that the allegations regarding demand of dowry or
cruel treatment given to Anuradha by her in-laws, were not
established during the investigation and that is why offence
under Section 498A was dropped by the Police. It has been
further contended that on 23.02.2009, when the Police
received information regarding the occurrence and
admission of three injured in the Civil Hospital, Sirsa, the
Police officials made sincere efforts to record the statement
of injured Anuradha by approaching the Duty Magistrate
concerned, but the said Magistrate called upon the Police
firstly to initiate the police proceedings as per law and
accordingly, PW18-Daljit Singh, recorded statement Ex.P1
of Anuradha, after she was declared fit to make statement
by the concerned Doctor. It has been further contended that
in the said statement Ex.PI, Anuradha clearly stated that
she set herself and her two children on fire after having
poured kerosene oil and that she had been fed up with her
husband Rattan Lal, who did not use to come to the house
and that there were no allegations of demand of dowry or
cruel treatment being given to her by her in-laws. It has
been further contended that on the basis of the statement
Ex.PI, the Investigating Officer sent ruqa and consequently,
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FIR was registered in the Police Station under Sections 306,
498A and 511 IPC against accused Rattan Lal only.
10. The Senior counsel for the appellants has further
argued that the second dying declaration recorded on the
same day i.e. 23.02.2009 at 2.30 p.m., by PW8 the Duty
Magistrate concerned, contains a tutored version, as it has
come in the testimony of PW8 that when he went to the
hospital to record the statement of the deceased, some
relatives of hers were present near her. This fact is further
corroborated from the testimony of PW13-Dr. Vikas Bhadoo,
who stated that on 23.02.2009 at 2.10 pm, when the
treatment was being given to Anuradha by the Surgeon,
many relatives of the patient were present in the Hospital.
It is further argued that PW-19 Dr. Rajat Soni, who had
treated the deceased at Soni Burn Hospital, Hisar, deposed
in his testimony that the deceased gave him the history of
self inflicted burns by pouring kerosene oil on herself. It is
further submitted that at the time of inquest proceedings of
deceased, the dead body was identified by Sahab Ram
Sarpanch and Bal Chand son of Pat Ram and both of them
made statements under Section 175 Cr.P.C., wherein they
stated that Rattan Lal got married with Anuradha about
7/8 years back and they used to quarrel with each other
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and on account of the said marital discord Anuradha had
committed suicide by pouring kerosene oil and then setting
ablaze herself and her two children. It is further argued
that during investigation, the police found all the other
accused, except the husband of the deceased (Rattan Lal),
innocent and the challan was only filed against Rattan Lal
under Section 306 IPC.
11. The Senior counsel for the appellants has further
argued that the conduct of PW-7 Prem Kumar, father of
deceased Anuradha was totally unnatural and he did not
come forward to collect the dead bodies of his daughter and
grandchildren, and all three of them were cremated in the
village of in-laws of Anuradha. It is yet further argued that
the testimony of complainant-Prem Kumar, if examined in
detail, would only bring out that it contains only a hearsay
version and the said witness has contradicted himself in
many aspects, which creates a dent in the case of
prosecution.
12. On the other hand, the State Counsel, while
supporting the judgment and order passed by the trial
Court has submitted that the dying declaration Ex.PO
which was recorded by the Duty Magistrate concerned, after
the Doctor on duty found the patient to be mentally fit, was
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rightly relied upon by the learned trial Court while,
convicting the appellants. The State counsel has further
argued that in case of multiple dying declarations which are
contradictory to one another as is there in the present case,
the statement recorded by the Magistrate can be relied upon
keeping in mind the element of truthfulness and being free
of suspicion. The State counsel has further argued that it
has come on record that after the occurrence had taken
place, no one informed about the same to the family
members of Anuradha, including her parents. While
countering the arguments of the learned Senior Counsel for
the appellants, regarding the second dying declaration being
the result of tutoring and prompting, it is submitted that
when the relatives of the deceased had learnt about her and
her children's admission in the hospital after having
suffered burn injuries, it was but natural for them
(relatives) to visit the said hospital and thus, their mere
presence would not render the second dying declaration as
tutored or prompted, especially when such dying
declaration was recorded by the Duty Magistrate himself.
The State counsel in support of his contentions has placed
reliance on the judgment of Hon'ble Supreme Court in case
of Naeem Versus State of Uttar Pradesh, 2024 AIR Supreme
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Court 1381.
13. We have heard the learned counsel for the parties
and have also gone through the records of the case
carefully. In our opinion the following questions would
arise for determination:-
"1. Which of the two dying declarations made
by the deceased, is more authentic and
believable?
2. Whether in view of the diverging dying
declarations, the conviction of the appellants
can be maintained?
14. In the instant case, there are two dying
declarations of the deceased Anuradha. In the first dying
declaration dated 23.02.2009 made before SHO/ Inspector
PW-18 Daljit Singh in the Civil Hospital, Sirsa, the deceased
stated that on 23.02.2009 at around 09-9:30 a.m., she had
poured kerosene oil upon herself and her two children and
then set herself and her children ablaze and that she had
taken said extreme step after having been tortured by her
husband. She further stated that her husband never visited
her and that was why she had taken the said extreme step.
Subsequently, in another dying declaration made on the
same day i.e., 23.02.2009 at 2:20 PM before the Judicial
Magistrate 1st Class, Sirsa, the deceased stated that she
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had been set ablaze by her husband, her mother-in-law,
sister-in-law (jethani) and brother-in-law (jeth), by pouring
kerosene oil upon her. She further stated that they had
been torturing her for the last so many days and they used
to beat her and that her children were also set on fire by
them. It was further stated by her that she was having
dispute with her husband because of his involvement with
other women and that there was no demand of dowry. She
had further stated that her children should be given to her
parents and they should also be given their rights and that
a strict action should be taken against the accused.
15. The prosecution had examined Dr. Rajat Soni, as
PW-19. The said Doctor had treated the deceased at Soni
Burn Hospital, Hisar. He deposed in his examination-in-
chief that deceased had given him the history of self
inflicted burn injuries by pouring kerosene oil on herself.
Still further, in her cross-examination Doctor i.e. PW-2 Dr.
Archana Aggarwal, had corroborated the fact that in the
inquest report, it was mentioned that the deceased had
poured kerosene upon herself and her children and then set
them and herself ablaze. Similar was the testimony of PW3-
Dr. Kuldeep Sain Medical Officer, CHC Ellahanabad,
District Sirsa. Still further, PW-14 Dr. (Mrs) Manjula,
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Medical Officer, GH, Hansi, who had conducted post
mortem examination on the dead body of deceased-
Anuradha, deposed in her cross-examination that it was
mentioned in the inquest report that the deceased had
sprinkled kerosene over her body and her children and set
herself and her children on fire.
16. PW-8 S.K. Sharma, JMIC, before whom the
second dying declaration dated 23.02.2009 at 2:20 PM, was
made, stated in his cross-examination that when he
reached the hospital for recording the dying declaration of
the deceased, some persons were present near the patient.
He deposed to the following effect:-
"It is correct that some persons were present near
the patient when I reached the hospital. I did not
ask their names, addresses and their relation with
the injured or her husband. No other person was
present when Medical Officer gave above opinion
Ex.PM/1. The Medical Officer declared the patient
fit to make her statement after examining her but
he did not give his observations. The Medical
Officer had put some general questions to the
witness but he did not record the same. I also did
not record the said questions and their answers. I
did not ask the doctor to make a record of his
observations of the patient. Except Medical Officer
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no other person was present near the bed of the
patient when I recorded her statement. I also did
not record anywhere that I had directed the other
persons to go away when I reached there. I did not
administer oath to the witness before recording her
statement."
17. Still further, the most material witness in this
case is the father of the deceased i.e. PW-7 Prem Kumar.
However, in his testimony, the said witness stated that he
had not visited the Hospital at Hisar, where his daughter
was admitted with the burn injuries. The said witness had
also stated about the inquiries conducted by the Deputy
Superintendent of Police and the Additional Superintendent
of Police, but he could not disclose about the fate of the said
inquiries. The relevant extract from the testimony of the
said witness would read as under:-
"I got application Ex.PK typed at Nathusari Chopta
on 23.2.2009 after visiting the hospital at Sirsa. I
do not know the name of Typist but I got this
application typed from Bhagwati Book Store. My
statement was recorded by the police but I do not
recollect the date. I did not tell the police that
marriage of Anuradha and Rattan Lal was
solemnized in February, 2003. This fact was also
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not got typed by me in application Ex.PK. It is
correct that I did not get recorded in my application
that in-laws of Anuradha started harassing her
after one and half year. Volunteered I told that her
in-laws started harassing her. Narsi has his wife,
sons and daughters. Diwan, father of accused, and
his brother Narsi are separate in mess and
cultivation. Meeran is sister of accused Rattan Lal. I
do not know whether Meeran was married prior to
or after Anuradha's marriage. Meeran has two
children but I do not know their age. She is married
in village Ali Mohammad and she resides there. It is
incorrect to suggest that Rattan Lal was residing
separately from his family for the last several years
and was cultivating land separately. It is correct
that Anuradha was taken to Hisar hospital by the
family of the accused. Volunteered no intimation
was given to us by them. It is correct that dead
body of Anuradha was also cremated by her in-laws
in their village. Volunteered no intimation about her
death was given to us by her in-laws. I did not visit
Anuradha in Hisar Hospital to enquire about her
well-being. After the incident I went to my village
and talked to Om Parkash and Pala Ram who are
sons of my paternal uncle. Police had visited the
hospital and recorded statement of Anuradha. It is
incorrect that Vikram used to visit Anuradha in the
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absence of Rattan Lal. It is incorrect that Anuradha
committed suicide as people came to know about
her relations with Vikram. It is incorrect to suggest
that in-laws of Anuradha never either harassed her
nor demanded dowry. It is also incorrect to suggest
that accused was residing separately from his
family. It is incorrect to suggest that I got this
application typed after due deliberations with my
family members. It is correct that this application
was addressed to the Director General of Police but
its copy was also endorsed to the SHO. It is correct
that DSP had made enquiry about this occurrence
and I and others had appeared before him. It is
correct that in the typed application I had made
allegations against seven persons including Rattan
Lal. Later on I came to know that the police did not
challan the six relatives of Rattan Lal and challaned
only Rattan Lal and to that extent my application
was declined by the police. Addl.SP had also
conducted enquiries and I had appeared in that
enquiry also. I do not know if Addl.SP had also
found my allegations against six relatives of Rattan
Lal to be false. It is correct that Diwan Chand
father of accused Rattan Lal owns 40/42 area of
agricultural land. It is 'incorrect to suggest that
both sons of Diwan Chand had separated from him
after the marriage of Rattan Lal. I do not know if
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Diwan Chand had given 16 killas of land to his
each sons and kept 8 killa land in his own name. I
do not know if house of Ram Murti adjoins the
house in which occurrence took place. Then said a
Nohra is situated adjacent to that house. I know
Rajesh son of Rameshwar resident of Chaharwala
for the last 8-10 years. It is correct that said Rajesh
is living in Gurgaon and is running business of
stone crushing. I do not know from which time he
is living there. I also do not know for how much
time prior to the marriage of Anuradha, Rajesh is
living in Gurgaon. I cannot tell at what time Rajesh
met me prior to the death of Anuradha. Self-stated
he might have met me off and on. On the day of
occurrence nor thereafter Rajesh Met me. I do not
know where he was on 23rd and 24th February,
2009.
I do not know if large number of respectables
of Nejia had given sworn affidavits to the police that
Rattan and his family members were innocent in
this case and that Rattan was residing separately
from his parents. I do not know whether the village
panchayat and respectables had given an
application to the police that case against Rattan
and his family members was false. It is incorrect to
suggest that there was no demand of dowry and
there was no such complaint. Self-stated Anuradha
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was turned out from her house during night hours
many times. It is incorrect to suggest that she was
neither turned out nor maltreated and that there
was no demand of dowry. I did not mention specific
demand of the accused in the application Ex.PK
and other applications made by me. It is incorrect
to suggest that I have made a false statement."
18. Section 32 of the Evidence Act, stipulated about
the statement made by a person, who is dead or cannot be
found, being relevant. Sub-section (1) provides that when
the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the causes of
that person's death come into question, such statement is
relevant. This Section is an exception to the general rule of
exclusion to the hearsay evidence and the statements of a
person, written or verbal, of relevant facts, after his death
are admissible in evidence, if they refer to the cause of his
death or to any circumstances of the transaction, which
resulted in his death.
19. In Laxman v. State of Maharashtra, (2002) 6
SCC 710, the Constitution Bench of the Hon'ble Supreme
Court, has summed up the principles applicable as regards
the acceptability of dying declaration to the following effect:-
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"3. The juristic theory regarding acceptability of a
dying declaration is that such declaration is made
in extremity, when the party is at the point of death
and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man
is induced by the most powerful consideration to
speak only the truth. Notwithstanding the same,
great caution must be exercised in considering the
weight to be given to this species of evidence on ac-
count of the existence of many circumstances
which may affect their truth. The situation in which
a man is on the deathbed is so solemn and serene,
is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of
oath and cross-examination are dispensed with.
Since the accused has no power of cross-
examination, the courts insist that the dying decla-
ration should be of such a nature as to inspire full
confidence of the court in its truthfulness and cor-
rectness. The court, however, has always to be on
guard to see that the statement of the deceased was
not as a result of either tutoring or prompting or a
product of imagination. The court also must further
decide that the deceased was in a fit state of mind
and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental
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condition to make the dying declaration looks up to
the medical opinion. But where the eyewitnesses
state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion
will not prevail, nor can it be said that since there
is no certification of the doctor as to the fitness of
the mind of the declarant, the dying declaration is
not acceptable. A dying declaration can be oral or in
writing and any adequate method of communica-
tion whether by words or by signs or otherwise will
suffice provided the indication is positive and defi-
nite. In most cases, however, such statements are
made orally before death ensues and is reduced to
writing by someone like a Magistrate or a doctor or
a police officer. When it is recorded, no oath is nec-
essary nor is the presence of a Magistrate absolute-
ly necessary, although to assure authenticity it is
usual to call a Magistrate, if available for recording
the statement of a man about to die. There is no re-
quirement of law that a dying declaration must
necessarily be made to a Magistrate and when such
statement is recorded by a Magistrate there is no
specified statutory form for such recording. Conse-
quently, what evidential value or weight has to be
attached to such statement necessarily depends on
the facts and circumstances of each particular
case. What is essentially required is that the person
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who records a dying declaration must be satisfied
that the deceased was in a fit state of mind. Where
it is proved by the testimony of the Magistrate that
the declarant was fit to make the statement even
without examination by the doctor the declaration
can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A cer-
tification by the doctor is essentially a rule of cau-
tion and therefore the voluntary and truthful na-
ture of the declaration can be established other-
wise."
The Hon'ble Supreme Court in Purhsottam
Chopra Vs. State (NCT of Delhi), (2020)11 SCC 489, while
summing up the principles regarding the admissibility of
the dying declaration and its reliability, has held as under:-
"21. For what has been noticed hereinabove, some
of the principles relating to recording of dying
declaration and its admissibility and reliability
could be usefully summed up as under:-
21.1. A dying declaration could be the sole
basis of conviction even without corroboration, if it
inspires confidence of the court.
21.2. The court should be satisfied that the
declarant was in a fit state of mind at the time of
making the statement; and that it was a voluntary
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statement, which was not the result of tutoring,
prompting or imagination.
21.3. Where a dying declaration is suspicious
or is suffering from any infirmity such as want of fit
state of mind of the declarant or of like nature, it
should not be acted upon without corroborative
evidence.
21.4. When the eyewitnesses affirm that the
deceased was not in a fit and conscious state to
make the statement, the medical opinion cannot
prevail.
21.5. The law does not provide as to who
could record dying declaration nor there is any
prescribed format or procedure for the same but the
person recording dying declaration must be
satisfied that the maker is in a fit state of mind and
is capable of making the statement.
21.6. Although presence of a Magistrate is
not absolutely necessary for recording of a dying
declaration but to ensure authenticity and
credibility, it is expected that a Magistrate be
requested to record such dying declaration and/or
attestation be obtained from other persons present
at the time of recording the dying declaration.
21.7. As regards a burns case, the percentage
and degree of burns would not, by itself, be decisive
of the credibility of dying declaration; and the
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decisive factor would be the quality of evidence
about the fit and conscious state of the declarant to
make the statement.
21.8. If after careful scrutiny, the court finds the
statement placed as dying declaration to be
voluntary and also finds it coherent and consistent,
there is no legal impediment in recording conviction
on its basis even without corroboration.
20. When there are multiple dying declarations, a
duty is cast upon the Court to carefully examine the
entirety of the materials as also the circumstances
surrounding the making of different dying declarations.
While doing so, the truthfulness and such statement being
voluntary one, must be examined and it must be ensured
that there is no tutoring and prompting. In Jagbir Singh
Vs. State (NCT of Delhi), 2020 Cr.LJ 266(SC), while
examining the question of multiple dying declarations, it
was held by the Hon'ble Supreme Court as under:-
"We would think that on a conspectus of the law
as laid down by this court, when there are more
than one dying declaration, and in the earlier dying
declaration, the accused is not sought to be roped
in but in the later dying declaration, a summersault
is made by the deceased, the case must be decided
on the facts of each case. The court will not be
relieved of its duty to carefully examine the entirety
of materials as also the circumstances surrounding
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the making of the different dying declarations. If the
court finds that the incriminatory dying declaration
brings out the truthful position particularly in
conjunction with the capacity of the deceased to
make such declaration, the voluntariness with
which it was made which involves, no doubt, ruling
out tutoring and prompting and also the other
evidence which support the contents of the
incriminatory dying declaration, it can be acted
upon. Equally, the circumstances which render the
earlier dying declaration, worthy or unworthy of
acceptance, can be considered."
21. In the instant case, as noticed above, there are
two dying declarations made by the deceased. In the first
dying declaration made before the SHO/Inspector Daljit
Singh, she had stated that she had poured upon herself and
her children kerosene oil and set her and her children on
fire and that the said step was taken by her because of the
torture given by her husband. There was neither any
mention of her mother-in-law, Jeth and Jethani being
involved in the said incident nor there was any allegation
regarding the demand of dowry. Rather, in the said dying
declaration she had held her husband alone, responsible for
her taking the said extreme step. However, in the second
dying declaration recorded on the same date i.e. 23.02.2009
at 2:20 PM before the JMIC, Sirsa, the deceased stated that
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she had been set on fire by her husband along with her
mother-in-law, Jeth and Jethani.
22. As there is a complete contradiction in the
aforesaid two dying declarations, this Court is to see
whether there is any other evidence on record, which can
support either of the aforesaid two dying declarations. In
this regard, it may be noticed that the treating Doctor
examined as PW-19 Dr. Rajat Soni, stated in his testimony
that the deceased told him that she had suffered self-
inflicted burn injuries. The said witness had been examined
by the prosecution and the aforesaid part of his testimony
in the examination-in-chief was neither put to the test of
cross-examination nor the said witness had been declared
hostile. This, in effect, means that the prosecution had
accepted the version of the said witness.
23. It has come on the record that after the
registration of FIR, the matter was also inquired into by the
gazetted police officers of the rank of Deputy
Superintendent of Police and Additional Superintendent of
Police and this fact has not been disputed by PW-4 and
PW-7. Still further, during investigation, the police had
found the parents-in-law, Jeth, Jethani and Nanad of the
deceased innocent and the challan was only presented
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against appellant No.1-Rattan Lal (husband of the
deceased), under Section 306 IPC. However, the Court
concerned had taken cognizance of the case under Section
302 IPC only against appellant No.1. Later on the
prosecution had moved an application under Section 319
Cr.P.C., which was allowed and appellant Nos. 2 to 4 had
been summoned as additional accused and, thereafter,
charges against all the accused were framed under Section
302 read with Section 34 IPC. The testimony of the
complainant PW-7 Prem Kumar also shows that the said
witness did not visit the deceased in the hospital at Hisar to
enquire about her well being and also did not go to any
hospital to claim the dead bodies which were later on
cremated in the village of in laws of Anuradha. It may
further be noticed that PW-4 Rajesh Kumar, deposed in his
testimony that Rattan Lal had separated from his parents
about one and half years prior to the occurrence. PW-18
Daljit Singh, Investigating Officer, also deposed in his cross-
examination that accused-Rattan Lal used to live separately
from his brother Raj Kumar and father Diwan Singh and
that Raj Kumar and Diwan Singh, were residing in a
separate house.
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24. The defence has also examined one Sahab Ram
S/o Sh. Ram Dhan. The said witness was a co-villager of
the accused. He deposed that Rattan Lal, Raj Kumar and
their father Diwan Singh were residing separately and that
Rattan Lal was residing in the house along with his wife and
two children. In his cross-examination, he had disclosed
that deceased-Anuradha had disclosed to him that she had
set herself and her children on fire.
25. This being the factual position, we find that the
dying declaration made at the earliest point of time, which
was recorded by the Investigating Officer PW-18 Daljit Singh
in the Civil Hospital, Sirsa, finds corroboration from the
testimony of PW-19 Dr. Rajat Soni, who had treated the
deceased at Soni Burn Hospital, Hisar. In other words, it
can safely be said that a person, who happened to be at the
verge of eminent death, would not speak untruth. Still
further, in the inquest report, it was clearly mentioned that
the burn injuries suffered by the deceased were self-inflicted
and the same was further corroborated by the testimony of
PW-18 Inspector Daljit Singh, Investigating Officer.
26. It has come on the record that the first dying
declaration was recorded by the investigating officer PW-18
Daljit Singh. PW-7 father of deceased Anuradha while
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appearing in the witness box has not disputed the fact that
the police official had visited the hospital and recorded the
statement of Anuradha. It cannot be said that the police
official recorded the said dying declaration in a hasty
manner to cover up the truth. It has come in the evidence
that before recording of the said dying declaration, PW-18
deputed PW-10 to approach the duty Magistrate, Sirsa, with
a request to record the statement of Anuradha on which,
the Magistrate concerned directed him to firstly, initiate the
proceedings as per prescribed procedure. This fact was not
disputed by the said Duty Magistrate while appearing in the
witness box as PW-8, as was recorded in his order Ex.P-Q
dated 23.02.2009. The Hon'ble Supreme Court in Criminal
Appeal No.1441 of 2022 titled as State of Jharkhand Vs.
Shailendra Kumar Rai @ Pandav Rai, decided on
31.10.2022 has held that there is no rule to the effect that a
dying declaration is inadmissible when it is recorded by a
police officer instead of a Magistrate. Although a dying
declaration ought to ideally be recorded by a Magistrate if
possible, it cannot be said that dying declarations recorded
by police personnel are inadmissible for that reason alone.
The concerned doctor who medico legally
examined all the three injured on 23.02.2009, while
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appearing in the witness box as PW-13 has specifically
stated that on that day, on police request Ex.P-Y, he
declared Anuradha fit to make statement vide his
endorsement Ex.P-Y/1.
27. So far as the second dying declaration made
before the JMIC, Sirsa, is concerned, it may be noticed that
the said JMIC appeared as PW-8 and deposed that when he
reached the hospital for recording the dying declaration of
the deceased, some persons were present near the patient
and that he did not ask their names, addresses or their
relations with the injured or her husband. Thus, from the
testimony of the said witness, the possibility of a tutored
version of the deceased, cannot be ruled out, especially
when in the previous dying declaration nothing of the sort
was mentioned. Even PW-18 Inspector/SHO Daljit Singh, in
his testimony had deposed that during investigation, except
Ratan Lal (husband of the deceased), all other accused were
found innocent. It was further deposed by him that during
investigation, it was found that deceased Anuradha was
tutored by her father and relatives to name the family
members of her husband.
28. PW-4 Rajesh Kumar has admitted in his
deposition that appellant No.1 Rattan Lal got separated
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from his parents about one and 1½ year prior to the
occurrence. Even PW-18 also stated so in his cross
examination. DW-1 a co-villager of the accused, also
deposed on the similar lines. Thus, making it clear that
appellant No.1 Rattan Lal, his wife and children were living
separately from appellants No.2 to 4. So, it seems to be
highly improbable that Anuradha was persistently ill treated
and tortured by appellants No.2 to 4, who got separated by
mess and residence about 1½ year prior to the occurrence
in question. This fact also creates suspicion regarding the
truthfulness of the second dying declaration wherein
Anuradha named appellants No.2 to 4 to be the culprits
along with appellant No.1. The contents of the first dying
declaration recorded by PW-18 wherein Anuradha named
only appellant No.1 seems to be more probable, in the light
of the fact that the other appellants were living separately
from her husband.
29. Thus, while answering Question No.1, we hold
that the first dying declaration made by the deceased, which
finds corroboration from the testimony of treating Doctor
PW-19 Dr. Rajat Soni and PW-18-Investigating Officer Daljit
Singh and the inquest report, is more authentic whereas
the second dying declaration being surrounded by the
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suspicious circumstances, is liable to be discarded. In
totality, we find that the second dying declaration is a result
of tutored version as it had come in the testimony of PW-8
S.K. Sharma, JMIC, that when he had reached the hospital
for recording the statement of the deceased, some persons
were present near her.
30. So far as appellant Nos. 2 to 4 are concerned, we
find that it has come in the testimony of PW-4 Rajesh
Kumar that accused-Rattan Lal had separated from his
parents about one and half years prior to the occurrence.
Still further, PW-18 Daljit Singh, Investigating Officer, also
deposed in his cross-examination that accused-Rattan Lal
used to live separately from his brother Raj Kumar and
father Diwan Singh. Even defence witness Sahab Ram, co-
villager of the accused, had also deposed on the similar
lines. Apart from that, as noticed above, the said appellants
were found innocent during investigation and they had been
summoned under Section 319 Cr.P.C. as additional
accused. The learned trial Court, has convicted and
sentenced appellant Nos. 2 to 4 only on the basis of the
second dying declaration. As the second dying declaration
has been discarded by us, we find that the conviction of
appellant No.2 to 4, under Section 302 read with Section 34
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IPC is not tenable in the eyes of law. Accordingly, their
conviction and sentence is set aside and they are acquitted
of the charges framed against them.
31. As regards, appellant No.1-Rattan Lal, we find
that in the first dying declaration, the deceased had named
him and held him responsible for her taking the extreme
step of setting herself and her children ablaze. Thus, it is
clear that appellant-Rattan Lal had abetted the deceased to
commit suicide. We, thus, convert his conviction into the
one under Section 306 IPC from Section 302 read with
Section 34 IPC.
32. Coming to the sentence part, the occurrence took
place on 23.02.2009 and the impugned judgment and order
was passed on 13.01.2012. The sentence of appellant-
Rattan Lal was suspended by a Coordinate Bench of this
Court vide order dated 23.11.2021 by noticing that the said
appellant had already undergone more than 7 years of
actual sentence. The appellant has been facing protracted
trial since 2009 and thus, the ends of justice would be fully
met if the sentence imposed upon appellant-Rattan Lal, is
ordered to be one, already undergone by him.
33. Consequently, while holding appellant-Rattan Lal
guilty of the offence under Section 306 IPC, we impose upon
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him the sentence already undergone by him. Question No.2
is answered, accordingly.
34. Appeal stands disposed of in the above terms.
(KARAMJIT SINGH) (SUDHIR SINGH)
JUDGE JUDGE
11.11.2024
Yogesh
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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