Criminal Appeal No.1026-SB of 1998 -1-
****
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1026-SB of 1998
Date of decision : 04.11.2008
Rahish .....Appellant
Versus
State of Haryana ...Respondent
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. R.S.Mamli, Advocate for the appellant
Mr. S.S. Mor, Senior Deputy Advocate General, Haryana
for the respondent.
S. D. ANAND, J.
The appellant ( alongwith his parents) was prosecuted in
case FIR No. 727 dated 3.11.1997 for offences under Sections 114,306,
498-A IPC, Police Station City, Yamuna Nagar. While the parents of the
appellant were acquitted in toto, the appellant was acquitted on the charge
under Section 498-A IPC but was convicted for the offence under Section
306 IPC and was sentenced to undergo rigorous imprisonment for a
period of five years and to pay a fine of Rs.2000/-. In default of payment of
fine, appellant was directed to undergo further simple imprisonment for a
period of three months.
The learned Trial Court placed implicit reliance upon the dying
declaration Ex. PW12/B(which had been recorded by PW-12 Shri Jagdeep
Jain, the then Judicial Magistrate Ist Class, Fatehabad), and indicted
the appellant.
The other part of the evidence need not be adverted to
Criminal Appeal No.1026-SB of 1998 -2-
****
because it is either formal character in character or is relate-able to the
offence under Section 498-A IPC which already stated invalidated by the
learned Trial Court.
Learned counsel for the appellant argues that the dying
declaration cannot be validly relied upon to convict the appellant in the
absence of any evidence that deceased was throughout in a fit statement
of him. Further grievance on behalf of the appellant is that contents of
dying declaration cannot form the sole basis of conviction in the absence of
independent corroboration.
Learned counsel is not on firmer footing. Insofar as the
mental condition of the deceased is concerned, I may advert the testimony
of PW-9 Dr. Manisha Goel, who very categorically indicated that “patient
was conscious when she was admitted to hospital and at the time of
rerecording statement u/s 164 Cr.P.C. she was fit to make the statement.”
Insofar as the recording of the dying declaration is concerned,
we have on record the testimony of PW-12 Shri Jagdeep Jain who
testified that he recorded statement Ex. PW 12/B of Mst. Munni Devi on
police plea Ex.PW12/A. It is also in the statement that before proceeding
to record the statement, he had made it clear to the maker thereof that the
statement could be used against her. He also proved the relevant
certification recorded by him on it and also the order passed on the basis
thereof. Apart from testifying that the Medical Officer had certified that Mst.
Munni Devi was fit to make a statement, he also indicated that the Medical
Officer had also recorded a certification that the Mst. Munni Devi remained
conscious through out the period she made that statement.
The only question put to this witness in the course of cross-
examination was with regard to the period the Judicial Officer had taken to
Criminal Appeal No.1026-SB of 1998 -3-
****
record the statement of Mst. Munni Devi. He testified on oath that he had
taken about 20 minutes to record the statement of Mst. Munni.
It would be apparent from a conjunctive perusal of testimony
of PW-9 Dr. Manisha Goel and PW-12 Shri Jagdeep Jain, that the
appellant did not question the validity/truthfulness of dying declaration of
Mst. Munni Devi. There was also no suggestion on the part of the
appellant that the maker of dying declaration had been tutored by anybody.
There are other reasons as well which would indicate truthful
character of the dying declaration aforementioned. In the course thereof,
Mst. Munni Devi only made an allegation of cruelty against the appellant.
She did not at all allege that she had been subjected to any dowry-related
harassment. She further categorically indicated that being fed up with the
cruel treatment, she poured kerosene oil upon her and set herself afire.
She did not, at all, aver that she had been set afire by the appellant. All this
is indicative of the fact that contents of dying declaration Ex. PW12/B are
truthful in character.
In the light of the fore-going discussion, I have no hesitation in
affirming the finding of conviction recorded by the learned Trial Judge
against the appellant for the offence under Section 306 IPC.. However, in
view of the fact that the appellant has been undergoing the ordeal of
trial/appeal since3.11.1997, I am of the opinion that interest of justice
would be served if the sentence awarded to appellant is reduced by one
year and it is so ordered accordingly. Except with that modification, the
appeal shall stand dismissed.
November 04, 2008 (S.D. ANAND)
Pka JUDGE
Criminal Appeal No.1026-SB of 1998 -4-
****