1999 JTR(SC) 738
1999 AIR(SC) 2571 ; 1999 AIR(SCW) 2751 ; 1999 2 ALD(Cri)(SC) 371 ; 1999 39 AllCriC 453 ; 1999 CriLR 494 ; 1999 4 Crimes(SC) 17 ; 1999 CrLJ 4055 ; 1999 3 EastCrC(SC) 255 ; 1999 2 HinduLR 530 ; 1999 2 JCC 378 ; 1999 5 JT 317 ; 1999 2 OLR 312 ; 1999 3 RCR(Cri) 700 ; 1999 4 Scale 447 ; 1999 6 SCC 545 ; 1999 SCC(Cri) 1130 ; 2000 1 SCR 390 ; 1999 KHC 1306 ; 1999 2 KLT(Online) 951 ; 1999 6 Supreme 390
1999(6) Supreme 390
Supreme Court of India
(From Punjab & Haryana High Court)
G.T. Nanavati & S.N. Phukan, JJ.
Harjit Kaur etc. -Appellants
versus
State of Punjab -Respondent
Criminal Appeal No. 822 of 1997
With
Criminal Appeal No. 823 of 1997
Decided on 22-7-1999
Counsel for the Parties :
For the Appellant in Crl. A. 822/97 : Tekraj Vasandi, Advocate (A.C.).
For the Appellant in Crl. A. No. 823/97 : L. Nageshwara Rao, Advocate (A.C.).
For the Respondent : Rajiv Dutta, Advocate.
Important Point
Merely because that endorsement of Doctor that declarant was in fit condition to make statement was made not on the Dying Declaration itself but on the application, would not render the Dying Declaration suspicious in any manner.
Act
Referred
:EVIDENCE ACT : S.32, S.32(1)
INDIAN PENAL CODE : S.302
(A) The offences of murder under Section 302 read with Section 34 IPC are engaged when acts are done by multiple accused persons in furtherance of a common intention to cause death. The Indian Evidence Act, 1872, Section 32(1) legitimizes the recording of a dying declaration from an unavailable witness, and Section 32 validates its use as substantive evidence when the statement relates to the cause of death and is proven to be voluntarily made without coercion. The evidentiary value of such a declaration is assessed on the basis of the custodial conditions under which it was recorded, the absence of motive to fabricate, and the consistency of the narrative with the surrounding circumstances.
(B) A dying declaration recorded by a competent judicial officer, after confirming the declarants fitness and voluntariness, is a reliable basis for conviction. Inconsistencies with prior statements can be explained by the declarants intent to shield perpetrators, and mere presence of interested persons during recording does not vitiate the process if the statement is free and voluntary. The court must satisfy itself that the declaration is genuine, truthful, and corroborated by surrounding facts.
Facts of the case:
The deceased, Parminder Kaur, was subjected to persistent dowry demands and domestic violence by her husband, father-in-law, and mother-in-law. On 30.4.92, she was killed by being poured with kerosene and set alight. The trial relied primarily on a dying declaration recorded on 3.5.92 by a Sub-Divisional Magistrate, wherein she identified her in-laws as responsible. An earlier statement to the police blaming an accident was discounted as an attempt to shield them.
Findings of Court:
The trial court and the High Court both accepted the dying declaration as genuine and voluntarily made, and convicted the three appellants under Section 302 IPC. The brother-in-law was given the benefit of doubt and acquitted. The appellants challenged the admissibility and credibility of the dying declaration, alleging pressure, improper recording, and inconsistency with the first statement.
Issues:
Whether the dying declaration was voluntarily made and free from inducement or pressure; whether it could be relied upon as the sole basis for conviction; and whether the inconsistency with the earlier police statement undermined its reliability.
Ratio Decidendi:
When a dying declaration is recorded by a competent judicial officer after ensuring the declarants fitness, in the absence of corroborative material evidence, it can sustain a conviction if the circumstances surrounding its making indicate that it is genuine, voluntary, and inherently reliable, and if later explanations are more plausible than earlier ones made under different circumstances.
Result:
The appeals are dismissed and the convictions under Section 302 IPC are upheld.
(A) The offences of murder under Section 302 read with Section 34 IPC are engaged when acts are done by multiple accused persons in furtherance of a common intention to cause death. The Indian Evidence Act, 1872, Section 32(1) legitimizes the recording of a dying declaration from an unavailable witness, and Section 32 validates its use as substantive evidence when the statement relates to the cause of death and is proven to be voluntarily made without coercion. The evidentiary value of such a declaration is assessed on the basis of the custodial conditions under which it was recorded, the absence of motive to fabricate, and the consistency of the narrative with the surrounding circumstances.
(B) A dying declaration recorded by a competent judicial officer, after confirming the declarants fitness and voluntariness, is a reliable basis for conviction. Inconsistencies with prior statements can be explained by the declarants intent to shield perpetrators, and mere presence of interested persons during recording does not vitiate the process if the statement is free and voluntary. The court must satisfy itself that the declaration is genuine, truthful, and corroborated by surrounding facts.
Facts of the case:
The deceased, Parminder Kaur, was subjected to persistent dowry demands and domestic violence by her husband, father-in-law, and mother-in-law. On 30.4.92, she was killed by being poured with kerosene and set alight. The trial relied primarily on a dying declaration recorded on 3.5.92 by a Sub-Divisional Magistrate, wherein she identified her in-laws as responsible. An earlier statement to the police blaming an accident was discounted as an attempt to shield them.
Findings of Court:
The trial court and the High Court both accepted the dying declaration as genuine and voluntarily made, and convicted the three appellants under Section 302 IPC. The brother-in-law was given the benefit of doubt and acquitted. The appellants challenged the admissibility and credibility of the dying declaration, alleging pressure, improper recording, and inconsistency with the first statement.
Issues:
Whether the dying declaration was voluntarily made and free from inducement or pressure; whether it could be relied upon as the sole basis for conviction; and whether the inconsistency with the earlier police statement undermined its reliability.
Ratio Decidendi:
When a dying declaration is recorded by a competent judicial officer after ensuring the declarants fitness, in the absence of corroborative material evidence, it can sustain a conviction if the circumstances surrounding its making indicate that it is genuine, voluntary, and inherently reliable, and if later explanations are more plausible than earlier ones made under different circumstances.
Result:
The appeals are dismissed and the convictions under Section 302 IPC are upheld.
Judgment
Nanavati, J.-The three appellants, in these two appeals, have been convicted under Section 302 IPC for causing death of Parminder Kaur. The appellant in Criminal Appeal No. 822 of 1997 is Harjit Kaur, the Mother-in-Law of Parminder Kaur. The two appellants in Criminal Appeal No. 823 of 1997 are Charan Singh and Sukhjeet Singh, the Father-in-Law and Husband of Parminder Kaur.
2. What has been held proved against them is, that they were not satisfied with the dowry brought by Parminder Kaur and, therefore, they used to ill-treat her and beat her also. Ultimately on 30.4.92 at about 2.00 a.m. they killed her by pouring kerosene over her body and then applying a lighted match stick to her clothes.
3. The trial Court convicted the three appellants and one Gurjit Singh, Brother-in-Law of Parminder Kaur, mainly relying upon the Dying Declaration made by Parminder Kaur on 3.5.92. The High Court has also believed the Dying Declaration and confirmed the conviction of the appellants, but gave benefit of doubt to the Brother-in-Law.
4. The contention of the appellants in these appeals is that the Dying Declaration made by Parminder Kaur does not deserve to be accepted and in any case cannot be made the sole basis of conviction of the appellants. The Dying Declaration, exhibit PL was recorded by Addl. District Collector, Vijay Kumar Janjua (P.W. 7), who was then working as Sub-Divisional Magistrate at Ludhiana. He has deposed that on 2.5.92, he had received an application addressed to the District Magistrate and sent to him by the District Magistrate, for recording the Dying Declaration of Parminder Kaur. He had forwarded it to the Tehsildar but as the Tehsildar was not available it was returned. He then, sent it to the Executive Magistrate for taking action on it. He was also not available. So on 3.5.92, he went to the hospital and recorded her Dying Declaration. He has also stated that he inquired from the Doctor in-charge as to whether she was in a fit condition to make a statement. After the Doctor confirmed that she was fit and made an endorsement to that effect on the application, he preceded with the work of recording the Dying Declaration. He had put questions to Parminder Kaur to ascertain whether she was able and willing to make a statement. Only thereafter he recorded what she had to state. He was further stated that she spoke in Punjabi and he wrote down what she had stated after translating it in English. Thereafter the statement was explained to her and her thumb mark was obtained on it.
5. It was submitted by the learned counsel for the appellants that about hundred persons had approached the District Magistrate for getting the Dying Declaration of Parminder Kaur recorded and that some of the relatives of the deceased had even accompanied the S.D.M. (P.W. 7) while he was going to the hospital for recording her Dying Declaration. He also submitted that the evidence of this witness discloses that three to four persons were present in the room where Parminder Kaur was kept. According to the learned counsel these two circumstances clearly indicate that P.W. 7 had recorded the Dying Declaration under pressure and in presence of those persons who were interested in Parminder Kaur. We do not find any substance in this contention because this witness has categorically stated in his Examination-in-Chief that when he was recording her statement, nobody was present in the room and even the Nurse attending on her was asked to get out of that room. What he has stated in cross examination is that when he had reached that place, three or four persons were seen sitting in the room. Therefore, it is not correct to say that the Dying Declaration was recorded in presence of some relatives of the deceased. The other circumstance that there was an agitation by the relatives of Parminder Kaur for recording her statement cannot lead to an inference that P.W. 7, who was an I.A.S. Officer and holding high position of Sub-Divisional Magistrate had recorded it under pressure and as desired by the relatives of the deceased. There was no reason for him to do so. As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the Dying Declaration itself but on the application, that would not render the Dying Declaration suspicious in any manner. The said endorsement made by the Doctor was produced by him and it has become evidence in the case.
6. It was further submitted by the learned counsel that the statement of Parminder Kaur was not recorded by the witness in question and answer form. The evidence of the witness is that she narrated the incident and therefore the Dying Declaration is not in the question-answer form. It was then contended by the learned counsel that the Dying Declaration bears her thumb mark but according to the medical evidence, the skin over the two thumbs was burnt and, therefore, the S.D.M. could not have obtained her thumb impression on it. Whatever impression could be taken was taken by the S.D.M. The medical evidence in this case does not disclose that she could not have put her thumb mark on the Dying Declaration. We fail to appreciate how this circumstance can create any doubt regarding the evidence of this witness or geuinness of the Dying Declaration. P.W. 7 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bare suggestion made to him that the Dying Declaration was manufactured by him after her death, We do not find anything in his cross-examination as would create any doubt regarding truthfulness of what this witness has deposed. We fully agree with the finding recorded by the courts below that the Dying Declaration was voluntarily made by Parminder Kaur and that it was correctly recorded by P.W. 7.
7. It was then contended by the learned counsel that this Dying Declaration should not be accepted as true because in her first Dying Declaration made to the Police Officer on 30.4.92, Parminder Kaur had stated that she had received burns as a result of an accident and that no one else was responsible for the same. Both the courts below after considering this inconsistency have thought it fit to rely upon the second Dying Declaration. It has been rightly held as an attempt on her part to save her husband and the in-laws. The circumstances clearly indicate that she was not a free person then. The reasons given by the trial Court and the High Court for not considering the first Dying Declaration as voluntary and true are quite convincing and we see no reason to differ from them. Therefore, the second Dying Declaration cannot be regarded as untrue merely because it is contrary to her statement made earlier. What she has stated in the second Dying Declaration, appears to be more probable and natural. If she had really received injuries at 2.00 a.m., because of bursting of stove then her in-laws would have taken her to the hospital immediately and would not have waited till 7.30 a.m.. They would have informed the parents of Parminder Kaur as early as possible. They were not informed for two days in which hospital their daughter was admitted. All the circumstances indicate that the first Dying Declaration made before the Police Officer was not a correct one. As we find that the appellants have been rightly convicted, both these appeals are dismissed.
(C.R.) Appeals dismissed.
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Paralle Citations of other Journals :
Harjit Kaur etc. v. State of Punjab, 1999(6) Supreme 390 : (1999) 6 SCC 545 : 1999(4) Crimes 17 : AIR 1999 SC 2571 : 1999 SCC (Crl.) 1130 : 1999 Cri. L.J. 4055 : 1999(2) HLR 530
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