Ram Chand and anr. vs State of Haryana

S. D. Bajaj, J.—Smt. Bimla (now deceased) stated in her dying declaration Exhibit PA/3 recorded by Shri Lakshman Sharma, learned Judicial Magistrate Ist Class, Sirsa, PW 1 around, 11.45 p.m. to 2.00 (midnight). on both., September, 1986 that she was being harassed by her husband and motherinlaw continuously after, marriage on grounds of bringing less dowry, that around 2.00 to 2.30 p.m. there was a quarrel between, her and her husband wherein her husband gave her kick and fist blows that around 3.00 to 3.30 p.m nearly, half an hour thereafter her motherinlaw caught hold of her and her husband sprinkled kerosene on her whereafter the two set her ablaze, and she got unconscious. On its basis husband of the deceased named, Ram Chand and her mortherinlaw named Smt. Mam Kaur were both prosecuted under section 302 read with section 34 of the Indian Penal Code.

On being charged with the commission of offences aforesaid both the accused appellants individually pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated 1st December, 1987 learned trial court convicted both of them of the commission of the offence under section 302 read with section 34 of the Indian Penal Code and sentenced each one of them separately to undergo imprisonment for life and to pay Rs. 500/ as fine. In default of payment of fine each one of the two convicted accused was ordered to undergo separately rigorous imprisonment of a further period of two years. Feeling aggrieved from the impugned judgment of their conviction as also the sentence awarded both the convicted accused have jointly filed Criminal Appeal, No. 54DB of 1988 in this Court.

Faithful recording of the dying declaration of the deceased in question answer form inside the precincts of Civil Hospital, Sirsa in response to request obtaining in letter Exhibit PA addressed to him by Dr. Partap Singh PW3 on 10th September, 1986, has been duly proved by PW I Mr. Lakshman Sharma, learned Judicial Magistrate Ist Class, Sirsa, who states, on 10.9.1986 letter Ex. PA from Dr. Partap Singh was received by me at my residence at about 11.30 p.m. for recording the dying declaration of Bimla wife of Ram Chand, admitted in Civil Hospital, Sirsa as a burn case. Immediately I proceeded to Civil Hospital, Sirsa, and, reached there at 11.45 p.m. Dr. Partap Singh was attending on Bimla and I sought his opinion if she was fit to make a statement. Dr. Partap Singh vide report Ex.PA/1 opined her to be in fit condition to make a statement. I also gave a note about it at Ex. PA/2 myself. I was also satisfied that Smt. Bimla was fit to make a statement. I then recorded the statement. of Smt. Bimla Rani wife of Ram Chand of village Talwara in question and answer form and the said statement is Ex. PA/3 and it is in my hand in Hindi. It was read over to her and she thumb marked it at point `A'' now marked in token of it correctness."

Dr. Partap Singh, the then Medical Officer, General Hospital, Sirsa, PW 3 wholly corroborates the version brought on record by Shri Lakshman Sharma PW 1 who asserts, "In September, 1986 I was posted as Medical Officer in General Hospital, Sirsa. At about 9.00 p.m. on 1091986 Bimla wife of Ram Chand aged 18 resident of Talwara P.S. Ellenabad was brought to the hospital as a burn case and referred from civil dispensary, Ellenabad. She had more than 90% burns on her person. I attended Bimla and gave her some medicines and then at 9.25 p.m. on that day I sent ruqa Exhibit PB to SHO of P.S. City Sirsa informing him about admission of Bimla and requesting him to arrange for recording of her dying declaration. At 10.50 p.m. on that day, I sent the application Exhibit PA to the Duty Magistrate requesting him to come to the hospital for recording dying declaration of Bimla wife of Ram Chand admitted as a burns case in hospital. At 11.45 p.m. Shri Lakshman Sharma, Judl. Magistrate I Class, Sirsa came to the Emergency Ward where I was attending upon Smt. Bimla. Earlier to his arrival Shri Amin Lal ASI had also come. The Magistrate inquired from me if Smt. Bimla aforesaid was in a fit condition to make statement and vide my report Ex. PA/1, I opined that the patient was in a fit condition to make statement. Shri Sharma, Judg. Magistrate thereafter recorded the statement of Smt. Bimla Rani w/o Ram Chand r/o Talwara in my presence and within my hearing. That statement is Ex. PA/3. It was read over to her and she thumb marked it as a token of its correctness at point `A'' Smt. Bimla remained fit throughout this period and I gave a report in that behalf and the same is Ex. PA/4."

Dying declaration Exhibit PA/3 and the endorsement certifying Bimla as fit to make it Exhibit PA/4 both read

"(Dying Declaration)

Q. What is your name

Ans. Bimla Rani aged 1516 years, w/o Ram Chand r/o village

Talwara, P.S. Ellenabad.

Q.How did you catch fire ?

Ans. My motherinlaw caught me and my husband sprinkled kerosene on me. They set ablaze me. After that I became unconscious.

Q. Why were you set on fire ?

Ans. I was being harassed. My motherinlaw and my husband used to tease me.

Q. Was there any dispute with you ?

Ans. Today at about 21/2, there was a dispute between me and my husband. He gave me kicks and fists. Thereafter at about 331/2, I was put on fire. The neighbours had gone to their fields.

Q. Had none come on hearing your noise ?

Ans. Only women folk came. Who were they, I became unconscious.

Sd/

Duty JMIC

12.00 A.M. (night)

RO & AC

RTI Bimla Rani

Exh. PA/4.

Certified that she remained fit during the statement.

Sd/ in English

Partap Singh

10986."

Speaking of the dying declaration like the present one their lordships of the Supreme Court observed in Khushal Rao v. State of Bombay, AIR 1958 SC 22, Tarachand Damu Sutar v. State of Maharashtra, AIR 1962 SC 130, Gopal Singh and another v. The State of M.P. and another AIR 1972 SC 1557 and K. Ramachandra Reddy and another v. The Public Prosecutor, 1976 SC 1994, "It cannot be laid down as an absolute rule of law that a dying declaration cannot be the sole basis of conviction unless it is corroborated. It shall be subject to close scrutiny but once the court has come to the conclusion that the dying declaration was the truthful version as to the cause of death then there is no need of further corroboration. Where the deceased had died as a result of burns caused by the fire set to her clothes by the accused who had sprinkled kerosene oil on her and this is supported by her dying declaration against the correctness of which no cogent reasons had been given or suggested and a conviction based on such evidence is sustainable, a Court is entitled to convict on the sole basis of dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. A person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, promoting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased has a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancor. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration."

Applying the acid test prescribed by the Supreme Court it must be said that the dying declaration in this case is truthful because it is recorded by a Judicial Magistrate after ascertaining from the doctor that its author Smt. Bimla was fit to make it and prekilling averment of dissatisfaction of the two accused on point of lesser dowry has been adhered to by father and paternal uncle of the deceased is Mangtu PW 5 and Mukh Ram PW 6 respectively. The dying declaration was, therefore, rightly relied upon by the learned trial court for returning the finding of guilty against the two accused. Finding recorded by the learned trial court both on point of conviction and sentence is, therefore, affirmed.

In result the Criminal Appeal filed jointly by both the convicted accusedappellants is rendered wholly bereft of any merit therein and is consequently dismissed.