PETITIONER:
SURINDER KUMAR AND ANR.
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT28/04/1992
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
FATHIMA BEEVI, M. (J)
CITATION:
1992 AIR 2037 1992 SCR (2) 910
1992 SCC Supl. (2) 559 JT 1992 (3) 64
1992 SCALE (1)999
ACT:
Indian penal Code, 1860:
Sections 34, 302 and 498-A-Death on account of burn
injuries-Dying declaration made by deceased in hospital
before Judicial Magistrate-Doctor certifying that patient
remained conscious at the time of recording of statement-
Whether there was any infirmity in recording of dying
declaration-Conviction based on such dying declaration-
Whether justified.
HEADNOTE:
The first appellant's second wife died of burn injuries
sustained by her. The first appellant and his son from his
first wife were tried for the murder of the deceased and
also for subjecting her to cruelty. The trial court
convicted both of the them under section 302 and 498-A read
with Section 34 of the Indian Penal Code on the basis of the
dying declaration made by the deceased before the Judicial
Magistrate. The High Court, on appeal, maintained their
conviction and sentence under Section 302 read with Section
34 Indian Penal Code but acquitted them of the offence under
Section 198-A read with Section 34.
In the appeal, by special leave, on behalf of the
appellants-accused it was contended that the statement made
by the deceased before the doctor, who had admitted her in
the hospital, giving cause of her death as burn injuries
sustained by her while cooking food on gas stove was the
earliest version and amounted to a dying declaration, and
there being two contradictory statements made by the
deceased, the dying declaration recorded by the magistrate
was not worthy of credit and conviction of the appellants
could not be based on it.
Dismissing the appeal, this Court,
HELD : 1.1. The conviction of the appellants is based
on the dying declaration made by the deceased in the
hospital before a Judicial Magistrate. The doctor certified
that the patient remained conscious
911
during the period her statement was recorded. The Judicial
Magistrate recorded a certificate that the statement of the
deceased was recorded by him and it contained true version
of her statement and she had thumb marked the same. In view
of the doctor's certificate, there is no infirmity in the
recording of the dying declaration by the magistrate and the
same inspires confidence. [912 C-D]
1.2 It was the first appellant who brought his wife,
deceased, to the hospital and he remained present while the
deceased was examined by the doctor. It is nowhere mentioned
in the record that what was recorded by the doctor was
stated by the deceased. Therefore, what was recorded by the
doctor could not be the version of deceased herself. Had it
been so, the doctor may not have used the word "alleged"
while recording that the patient received injuries while
cooking food in gas-stove. The doctor, did not mention
anywhere of the record about the state of mind of the
deceased, whether she was conscious or not. It is more
probable that what was recorded by the doctor was at the
instance of the husband who was accompanying his wife at the
time of her examination by him. Therefore, the courts below
have rightly rejected the defence plea that what was
recorded by the doctor was at the instance of the deceased.
The trial court has also rightly rejected the evidence of
defence witnesses. There is no infirmity in the judgments of
the courts below. [1912 G-H, 913 A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
150 of 1992.
From the Judgment and Order dated 21.8.1991 of the
Punjab and Haryana High Court in Criminal Appeal No. 210-DB
of 1989.
U.R. Lalit, B.S. Katial and S. Muralidhar for the
Appellants.
Ms. Indu Malhotra for the Respondent.
The following order of the Court was delivered :
Sheema, second wife of appellant Surinder Kumar,
sustained 70 per cent burn injuries in an occurrence which
took place of May 16, 1987 and ultimately succumbed to those
injuries on May 22, 1987. Surinder Kumar and his son Sanjiv
from his first wife were tried for the murder of Sheema and
also for subjecting her to cruelty. The trial court
convicted both of them under Sections 302/34 and 498-A/34 of
the Indian Penal Code. They
912
were sentenced for life and a fine of Rs. 500 on the first
count and rigorous imprisonment for two years and a fine of
Rs. 200 on the second count. The High Court, on appeal,
maintained their conviction and sentence under Section
302/34 Indian Penal Code. They were, however, acquitted by
the High Court of the offence under Section 498-A/34 Indian
Penal Code. This appeal by way of special leave is by the
appellants against their conviction and sentence.
The conviction of the appellants is based on the dying
declaration made by the deceased in the hospital before a
Judicial. Magistrate. The doctor certified that the patient
remained conscious during the period her statement was
recorded. The judicial Magistrate recorded a certificate
that the statement of Sheema was recorded by him and it
contained true version of her statement and she had thumb
marked the same. We have been taken through the text of the
dying declaration. We are satisfied that in view of the
doctor’s certificate, there is no infirmity in the recording
of the dying declaration by the magistrate and the same
inspires confidence.
Mr. U.R. lalit, learned senior advocate appearing for
the appellants has vehemently contended that Dr. Ashok
Tandon who admitted the deceased in the hospital recorded
that the patient `allegedly’ got burns while cooking food on
gas-stove. Mr. Lalit further contended that Dr. Ashok Tandon
appearing as PW 11 has deposed that at the time of his
examination the patient was conscious and she told him that
she got the burn injuries while cooking food on gas-stove.
Mr. Lalit has argued that the statement made by Sheema
before the doctor giving cause of her death is the earliest
version and amounts to a dying declaration. According to him
there being two contradictory statements by the deceased the
dying declaration recorded by the Magistrate is not worthy
of credit and conviction of the appellants cannot be based
on the same. We do not agree. it was accused Surinder Kumar
who brought his wife Sheema to the hospital and he remained
present while the deceased was examined by the doctor. It is
nowhere mentioned in the record that what was recorded by
the doctor was stated by the deceased. it is evident that
what was recorded by Dr. Tandon could not be the version of
Sheema herself. Had it been so the doctor may not have used
the word “alleged” while recording that the patient received
injuries while cooking food on gas-stove. Dr. Tandon did not
mention anywhere on the record about the state of mind of
Sheema. It was nowhere recorded whether she was conscious or
not. It is difficult
913
to believe that the doctor made his deposition in the court
on the basis of his memory. it is more probable that what
was recorded by Dr. Tandon was at the instance of the
husband who was accompanying his wife at the time of her
examination by Dr. Tandon. On the above reasoning both the
courts below have rejected the defence argument that what
was recorded by Dr. Ashok Tandon was at the instance of the
deceased. We see no ground to differ with the conclusions
reached by the courts below.
Mr. Lalit has further argued that the evidence of
defence witnesses was not taken into consideration by the
High Court. We have read the statement of the defence
witnesses along with Mr. Lalit. We are not impressed by
their testimony. The trial court rightly rejected their
evidence.
We see no infirmity in the judgments of the courts
below. We agree with the reasoning and the conclusions
reached by the High Court.
We, therefore, dismiss the appeal.
N.P.V. Appeal dismissed
914