SHER SINGH & ANR. v. STATE OF PUNJAB

Citation: [2008] 2 S.C.R. 959

Court: Supreme Court of India

Bench: P.P. NAOLEKAR, MARKANDEY KATJU

Case summary

SHER SINGH & ANR. v. STATE OF PUNJAB.pdf

Judgment text

+ [2008] 2 S. C. R. 959 SHER SINGH & ANR. II. STATE OF PUNJAB (Criminal Appeal No. 646 of 2006) FEBRUARY 15, 2008 [P. P. NAOLEKAR AND MARKANDEY KATJU, JJ. ] ~ Evidence Act, 1872: s.

32 - Dying declaration - Admissibility of- Duty ofcourt regarding - Certificate ofdoctor as to fit state ofmind - Requirement of- Held: Court to ensure that statement was not result of tutoring and also to ascertain from evidence that deceased was in fit state of mind - Where it is proved by testimony of Magistrate that declarant was fit to make statement without doctor's opinion to that effect, it can be acted upon provided court ultimately holds the same to be voluntary and truthful- Certificate by doctor is essentially rule ; ~ of caution and, therefore, voluntary and truthful nature of statement can be established otherwise - On facts, fact that second dying declaration was contrary to first declaration would not make it untrue - Oral dying declaration made to uncle of declarant consistent with subsequent declarations implicating accused persons stating about their involvement in commission of crime - Therefore, accused were rightly convicted under s.

302134 IPC on the basis ofdying declaration 1, made against them . :... Penal Code, 1860 - s. 302134. ,.. The prosecution case was on 18. 7. 1994 that the . accused persons who were ·husband, father-in-law, mother-in-law and sister-in-law poured kerosene oil on the deceased and burnt her which resulted in her death after three days in the hospital. Her first dying declaration -:... -,... made before the A. S. I the same day was that the fire was accidental, and was caught while preparing tea. The uncle of deceased PW-4 met the deceased the next day when she told him that she was burnt by the accused. On his application to District Magistrate,· PW7 the Executive Magistrate was directed to record her statement and on 20. 7. 1994, he recorded the statement. Two days later, S. I. also recorded her statement after taking doctor's opinion about her fit state of mind. Third day, she died. The accused persons were convicted under s. 302 r/w s. 34 IPC which was upheld by High Court.

Hence the present appeal. Dismissing the appeal, the Court . HELD: 1. Acceptability of a dying declaration is greater because the declaration is made in extre'llity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration~ Since the 0 accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its . truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit.

Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious. state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 I ' ~ ~ statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful.

A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise. [Para 14] [969-A, B, C, D, E, F] 2. The first dying declaration was recorded on _. \.. _ 18. 7. 1994 by ASI DW-1 The victim did not name any of the accused perso_ns and said that it was a case of an accident. However, in the statement before the court, OW- 1 specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. ". ' In the subsequent dying declaration recorded by the Executive Magistrate PW 7 on 20. 7. 1994, she stated that she was taken to the hospital by the accused only on the > 11. condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI PW 8 on 22. 7. 1994.

The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person #-. with free mind without there being any threat. The second dying declaration was more probable and looks natural. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind ... '>" and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make ~ it untrue.

The oral dying declaration made to the uncle is consistent with the second dying declaration implicating \ -+ the accused persons stating about their involvement in ~ the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is . consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration 8 was recorded after the doctor certified that she was in a fit state of mind to give the statement. On overall ,. j,_ consideration of the entire evidence, there is no infirmity in the judgment of the High Court which has considered all material evidence placed by the prosecution while arriving at the conclusion of finding the accused guilty of an offence they were charged with. [Paras 15,16] (969-G; 970-A, B, C, D, E, F, G] '" Paparambaka Rosamma and Ors. v. State of Andhra I Pradesh, AIR 1999 SC 3455; Harjit Kaur and Others v.

State of Punjab and others, (1998) 9 SCC 691; Kofi Chunilal Savji >- ~ and Anr. v. State of Gujarat, AIR 1999 SC 3695 and Laxman v. State of Maharashtra, AIR 2002 SC 2973 - referred to. CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 646 of 2006. From the Judgment and Order dated 6. 1. 2005 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 613-0. 8. /2000. Chander Shekhar Ashri (A. C. ) and Rekha Aggarwal for .... ,... the AP. pellants. Rahul Malik (for Kuldip Singh) for the respondent. . The Judgmdent of the Court was delivered by P. P. NAOLEKAR, J. 1. Three accused have been convicted and sentenced with rigorous imprisonment for life ~· .... under Section 302/34 of the Indian Penal Code (IPC)] and a fine of Rs. 1,000/- each and in default of which to undergo further rigorous imprisonment of three months. The fourth accused has been tried in the Juvenile Court and hence no order was passed . • + ~ by the Court regarding her. 2.

The brief facts are that Jaspal Kaur (deceased) married the accused appellant Sher Singh in 1993. She was living in her ! Tiatrimonial home for one-and-a-half years with the accused - her husband Sher Singh, father-in-law Attar Singh, mother-inlaw Kailash Kaur and sister-in-law Lakhwinder Kaur alias Rani who has been tried in the Juvenile Court. On 18. 7. 1994 at about ... 12. 00 noon, the deceased received serious burn injuries and was taken to the Civil Hospital, Ludhiana. ASI Hakim Singh was informed and told to record her statement. Hakim Singh (OW 1) recorded her statement at 9. 00 p. m. in which she said that " the fire was accidental, caught while preparing tea. When her uncle Harbhajan Singh (PW 4) met her on 19. 7. 1994, the deceased informed him that she was burnt by the accused. On 20. 7. 1994, he moved an application before the District Magistrate to record her statement. The ADM directed the ~ ..

( Executive Magistrate, Rajiv Prashar (PW 7) to record her statement and on 20. 7. 1994 he recorded her statement. Her uncle moved another application this time before the DSP(Rural) Kanwarjit Singh (PW 1) requesting him to re-examine the matter as according to him she was forced to make a wrong statement before Hakim Singh. On 22. 7. 1. 994 the S. I. recorded her statement (Exh. PJ) at about 8. 05 p. m. after taking the doctor's opinion. He stated that she was fit to make a statement. On 23. 7. 1994 Jaspal Kaur died due to burn injuries. Hence the offence was converted into that of Section 302 read with Section 4"" 34 IPC which resulted in trial and conviction. 3. It is submitted by the learned counsel for the appellant before us that while appreciating the evidence, reliance should have been placed upon the first dying declaration made on 18. 7. 1994, which was first in time immediately after the incident wherein she stated that the fire was accidental and no one was -.

responsible for the same, particularly when there are 6 dying declarations in total (3 written and 3 oral) wherein the statement has been improved from time to time. Submission of the learned counsel for the appellants is that it is only when the uncle of the deceased met her in the hospital that she changed her first dying ~ declaration and implicated the accused appellants for commission of crime. When the dying declaration was recorded by the Executive Magistrate on 20. 7. 1994, there is no certification of the doctor that she was in a fit state of mind to give the dying declaration even though she had received 80% burns. It is urged that one local congress worker Nirmala Sharma was present at the bedside of the deceased when the dying ..... declaration was made by her on 20. 7. 1994 and possibility of her being tutored could not be ruled out. 4.

To appreciate argument of the learned counsel for the appellants, it would be necessary to scrutinize the written dying declarations made by the deceased to Hakim Singh, Rajiv Prashar and Arvind Puri and oral dying declarations made before her uncle and father. On 18. 7. 1994, ASI Hakim Singh recorded her statement when the doctor endorsed that she was . fit to make a statement. However, the doctor was not present >-- ~ when the dying declaration was made, though her mother-inlaw, one of the accused was present. Hakim Singh in his statement before the Court stated that while recording the dying declaration he felt that Jaspal Kaur was under pressure. In this statement, she said that when the incident took place her husband and father-in-law were not present in the· house and r her mother-in-law was standing outside the house, in front of the gate, while she was preparing tea. The stove suddenly burst t and she was soaked with oil and her clothes caught fire.

She ; shouted "bachao, bachao", her mother-in-law heard her cries - "" consciousness and the other of a fit state of mind, but they are not synonyms, and one may be conscious without being in a fit state of mind. The court did not rely upon the dying declaration as the court had also found serious lacunae in other material 'i-· particulars. ~ 11. But in Harjit Kaur and Others v. State of Punjab and others, (1998) 9 sec 691, it is held that even if the dying declaration is not certified by the doctor, it will still have to be accepted because the person recording it had stated that the victim was fit to make the statement and had said that he took the doctor's opinion regarding the same. ..... 12. In Kofi Chunilal Savji and Anr. v. State of Gujarat, AIR 1999 SC 3695, the question again was whether in the absence of a doctor's certificate as regards the mental fitness of the person to make a statement, would it not be reliable?

This Court held that the requirement of such endorsement is only a matter of prudence and the ultimate test is whether the dying declaration is voluntary and truthful. Before recording the dying declaration, the officer concerned must find that the .... ' declarant was in a fit condition to make the statement and if the Magistrate is satisfied about the condition ofthe patient to make ). - "' the statement, such statement can be relied upon. 13. In Laxman v. State of Maharasthra, AIR 2002 SC 2973, a Constitution Bench of this Court had an occasion to consider similar aspects regarding veracity of dying declaration where the doctor's certificate regarding the fitness of a person had not been taken. This Court held that if the person recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned.

The Court said that the view taken in Paparambaka case (supra) of getting the ~~ doctor's certificate on the state of mind of the patient to make the statement would be a hyper-technical view, particularly when the Magistrate stated that the patient w,as in a fit state of mind and whereafter he recorded the dying declaration. The Court further held that where the Magistrate had ascertained from the doctor whether the victim was in a fit condition to make the / ~ statement and obtained an endorsement to that effect, merely because the endorsement was not made on the dying declaration but on the application, it would not render the dying l ~ ,.. declaration suspicious in any manner. 14. Acceptability of a dying declaration is greater because the declaration is made in extremity.

When the party is at the verge of death, one rarely finds any motive to t~ll falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court _.... would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result oftutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was .. ~ _.. ,.

_ in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 without there being the doctor's opinion to that effect, it can be acted upon ..... provided the court ultimately holds the. same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise. 15. In the present case, the first dying declaration was recorded on 18. 7. 1994 by ASI Hakim Singh (DW-1).

The victim ~ did not name any of the accused persons and said that it was a ' case of an accident. However, in the statement before the court, Hakim Singh (DW-1) specifically deposed that he noted that the declarant was under pressure and at the time of recording t -+· ~ ~ of the dying declaration, her mother-in-law was present with her. ~ In the subsequent dying declaration recorded by the Executive r Magistrate Rajiv Prashar (PW 7) on 20. 7. 1994, she stated that Ishe was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the >written dying declaration recorded by SI Arvind Puri (PW 8) on t r- 22. 7. 1994. The first dying declaration exonerating the accused ..... persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted t- ,,..

in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the ' Magistrate who recorded the statement had certified that she >- ~. ' was in a conscious state of mind and in a position to make the ~ statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration ,_ implicating the accused persons stating about their involvement in the commission of crime.

The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The .... ,.. third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement. 16. On overall consideration of the entire evidence, we find no infirmity in the judgment of the High Court which has considered all material evidence placed by the prosecution while arriving at the conclusion of finding the accused guilty of an ... 4 offence they were charged with. The appeal is, accordingly, . , dismissed. D. G. Appeal dismissed.