1998 JTR(SC) 725
1999 AIR(SC) 3361 ; 1999 AIR(SCW) 244 ; 1998 3 Crimes(SC) 114 ; 1999 CrLJ 837 ; 1998 2 JCC 86 ; 1998 5 JT 308 ; 1998 4 Scale 363 ; 1998 7 SCC 284 ; 1998 SCC(Cri) 806 ; 1998 6 Supreme 212
1998(6) Supreme 212
Supreme Court of India
(From Punjab & Haryana High Court)
G.T. Nanavati & S.P. Kurdukar, JJ.
Jai Prakash & Ors. -Appellants
versus
State of Haryana -Respondent
Criminal Appeal No. 742 of 1997
Decided on 30-7-1998
Counsel for the Parties :
For the Appellants : U.R. Lalit, Sr. Advocate, B.K. Satija, Advocates.
For the Respondent : Ajay Siwatch & Prem Malhotra, Advocates.
Important Points
1. Where deceased died after four days of recording complaint statement merely because non-recording of regular dying declaration would not stand in the way of treating complaint-statement as dying declaration.
2. Where complaint-statement of deceased was treated as dying declaration merely because it was not recorded in question and answer form it did not loose its weight.
3. Non-attestation and endorsement by doctor of complaint-statement recorded at hospital by police cannot come in the way of treating such statement as dying declaration.
4. Where dying declaration received corroboration from site inspection report conviction on basis of dying declaration was justified.
Act
Referred
:EVIDENCE ACT : S.32
INDIAN PENAL CODE : S.302, S.34
(A) The offences of murder under Section 302 read with Section 34 IPC were applied in this case where the appellants conspired to kill their brother's wife, Sushma, by dousing her with kerosene and setting her ablaze. Section 34 IPC addresses acts done in furtherance of a common intention, establishing joint liability for the accused. The prosecution's case hinged entirely on the dying declaration recorded by the police, which was accepted by both the trial and high court as genuine and reliable. The evidentiary value of this declaration was the central issue, with the court rejecting challenges regarding its recording not being in strict compliance with magistrate or medical formalities, emphasizing that such procedural gaps do not invalidate a dying declaration if its authenticity is otherwise confirmed.
(B) Key legal principles include the admissibility of dying declarations as evidence under Evidence Act principles, the principle of common intention under Section 34 IPC, and the high threshold for dismissing a dying declaration based on procedural irregularities. The court underscored that the mode of recording must be scrutinized for substance over form, particularly where corroboration exists, and that cross-examination on recording procedures is essential to challenge its validity.
Facts of the case:
The appellants were accused of murdering Sushma following a family land dispute. The act involved calling her to their house, pouring kerosene on her body, and setting her ablaze. No direct evidence linked the appellants to the act. The sole evidence was a dying declaration recorded by the police on 7.10.90, after Sushma was hospitalized with burns. She died on 11.10.90. The trial and high courts accepted the declaration's genuineness, leading to conviction under Section 302 read with Section 34 IPC.
Findings of Court:
The court found no merit in the appeals challenging the dying declaration's admissibility. It held that the declaration was validly recorded as a complaint and subsequently treated as a dying declaration, and its genuineness could not be doubted. The court rejected arguments concerning lack of medical endorsement, improper question format, and the deceased's condition at the time of recording, emphasizing the absence of cross-examination on these points and the supporting site inspection report.
Issues:
Whether a dying declaration recorded by a police officer, without a magistrate or doctor present, and not strictly in question-answer form, is admissible as evidence. Whether procedural lapses in recording the declaration, such as lack of medical endorsement, render it unreliable and warrant dismissal of the conviction.
Ratio Decidendi:
The court held that the validity of a dying declaration depends on its reliability and the circumstances of its recording, not merely on procedural formalities. Where a dying declaration is received, treated as genuine by the investigating and adjudicating authorities, and corroborated by other evidence like site inspection, minor procedural defects do not invalidate it, especially in the absence of affirmative proof of its unreliability during cross-examination.
Result:
The appeal was dismissed, and the convictions under Section 302 read with Section 34 IPC were upheld.
(A) The offences of murder under Section 302 read with Section 34 IPC were applied in this case where the appellants conspired to kill their brother's wife, Sushma, by dousing her with kerosene and setting her ablaze. Section 34 IPC addresses acts done in furtherance of a common intention, establishing joint liability for the accused. The prosecution's case hinged entirely on the dying declaration recorded by the police, which was accepted by both the trial and high court as genuine and reliable. The evidentiary value of this declaration was the central issue, with the court rejecting challenges regarding its recording not being in strict compliance with magistrate or medical formalities, emphasizing that such procedural gaps do not invalidate a dying declaration if its authenticity is otherwise confirmed.
(B) Key legal principles include the admissibility of dying declarations as evidence under Evidence Act principles, the principle of common intention under Section 34 IPC, and the high threshold for dismissing a dying declaration based on procedural irregularities. The court underscored that the mode of recording must be scrutinized for substance over form, particularly where corroboration exists, and that cross-examination on recording procedures is essential to challenge its validity.
Facts of the case:
The appellants were accused of murdering Sushma following a family land dispute. The act involved calling her to their house, pouring kerosene on her body, and setting her ablaze. No direct evidence linked the appellants to the act. The sole evidence was a dying declaration recorded by the police on 7.10.90, after Sushma was hospitalized with burns. She died on 11.10.90. The trial and high courts accepted the declaration's genuineness, leading to conviction under Section 302 read with Section 34 IPC.
Findings of Court:
The court found no merit in the appeals challenging the dying declaration's admissibility. It held that the declaration was validly recorded as a complaint and subsequently treated as a dying declaration, and its genuineness could not be doubted. The court rejected arguments concerning lack of medical endorsement, improper question format, and the deceased's condition at the time of recording, emphasizing the absence of cross-examination on these points and the supporting site inspection report.
Issues:
Whether a dying declaration recorded by a police officer, without a magistrate or doctor present, and not strictly in question-answer form, is admissible as evidence. Whether procedural lapses in recording the declaration, such as lack of medical endorsement, render it unreliable and warrant dismissal of the conviction.
Ratio Decidendi:
The court held that the validity of a dying declaration depends on its reliability and the circumstances of its recording, not merely on procedural formalities. Where a dying declaration is received, treated as genuine by the investigating and adjudicating authorities, and corroborated by other evidence like site inspection, minor procedural defects do not invalidate it, especially in the absence of affirmative proof of its unreliability during cross-examination.
Result:
The appeal was dismissed, and the convictions under Section 302 read with Section 34 IPC were upheld.
Judgment
Nanavati, J.-The four appellants are challenging in this appeal the judgment and order passed by the High Court of Punjab and Haryana, in Criminal appeal No. 242 DB of 1994. All of them were convicted by the trial Court under Section 302 read with Section 34 IPC. The High Court confirmed their conviction.
2. What has been held proved against the appellants is that in view of a dispute regarding their share in the land belonging to the family, they caused the death of Sushma, their brother’s wife, by calling her at their house and after pouring kerosene over her body and setting her abalze. There was no direct evidence. The prosecution had relied upon the dying declaration - Ex.P.J to prove its case. The trial Court accepted the dying declaration as genuine and true and convicted all the four appellants. The High Court also on reappreciation of the evidence accepted the dying declaration as genuine and true and thought it safe to confirm their conviction on the basis thereof.
3. It was urged by the learned counsel for the appellant that no reliance whatsoever should have been placed upon the said dying declaration as it was recorded on 7.10.90; and even though Sushma survived till 11.10.90, no further attempt was made to get her regular dying declaration recorded by a Magistrate. In our opinion, the submission made by the learned counsel is misconceived. As Sushma was taken to the hospital with burns, the hospital authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross-examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7.10.90. The said statement was sent to the police station at about 1.30 p.m. and the FIR was recorded at 3.30 p.m. A copy of the said FIR was received by the Magistrate on 8.10.90 at about 10.00 a.m. Therefore, there is no scope for doubting genuineness of that statement in this case. We are emphasising this aspect because it was also contended by the learned counsel that the dying declaration - Ex. PJ was not her statement at all. Only a vague suggestion was made to the investigating officer and to the Doctor that no statement at all was made by the deceased. This suggestion was denied by both of them. There is nothing on the basis of which it can be said that there is any substance in that suggestion.
4. It was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.
5. It was next submitted that when she was taken to the hospital at 7.30 a.m., she was not replying to the questions property as deposed by the first doctor who had examined her. This submission has also no substance because thereafter she was given treatment and the evidence shows that thereafter she was in a fit condition to make a statement. It was not even suggested to the Police Officer that she was not able to speak clearly. No attempt was made in the cross-examination of the Doctor to show that her condition had not improved between 7.30 a.m. and 1.30 p.m. and, therefore, this submission also deserves to be rejected.
6. It was next contended by the learned counsel that the statement was not recorded in question and answer form and therefore no weight should be attached to it. It also deserves to be rejected as misconceived because a complaint is required to be recorded in question and answer form even though there is a possibility that later on it might be treated as a dying declaration. This dying declaration receives corroboration from the site inspection report and also by the application - Ex. PL referring to the compromise arrived at on the previous day.
7. The decisions relied upon by the learned counsel, namely, Munna Raja & Anr. v. State of M.P.1, Dalip Singh & Ors. v. State of Punjab2 and State (Delhi Admn.) v. Laxman Kumar & Ors.3 have no relevance to the facts of this case. In those cases dying declarations were recorded by the police officers during the course of investigation and were found to be suffering from defects of the kind submitted by the learned counsel.
8. As we find no substance in any of the contentions raised by the learned counsel, this appeal is dismissed.
(C.R.) Appeal dismissed.
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Parallel Citations of other Journals :
Jai Prakash v. State of Haryana, 1998(6) Supreme 212 : (1998) 7 SCC 284 : 1998(V) AD (SC) 597 : JT 1998(5) SC 308 : 1998 SCC (Cri.) 1581 : 1998(3) Crimes 14
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