Dhan Singh vs State Of Haryana

Dhan Singh ...Appellant

Versus

State of Haryana ...Respondent

JUDGMENT

Swatanter Kumar, J.

1. The present appeal is directed against the judgment of

conviction and order of sentence of the High Court of Punjab

and Haryana at Chandigarh dated 30th of April, 2008, wherein

the High Court confirmed the judgment of the Trial Court dated

17th of May 1999, punishing the appellant in accordance with

law by awarding him sentence of rigorous imprisonment for a

period of one year for the offence under Section 148 Indian

Penal Code (hereinafter referred to as `IPC'), rigorous

imprisonment of two years and fine in the sum of Rs.1000/- for

the offence under Section 452 IPC and rigorous imprisonment

for a period of six month for the offence under Section 323

IPC and life imprisonment and fine of Rs. 2000/- for the

offence under Section 302 IPC and also awarded punishments in

default of payment of fines for these offences. 2

2. We may refer to the facts of the case giving rise to

the present appeal. On 15.07.1997, Head Constable, Ram Rattan

(PW 8) was performing his petrol duty at Sohna Road, Palwal,

when at about 5 PM he received intimation (Ex.PE) from

Government Hospital, Palwal that three persons, namely, Shiv

Ram, Bimla and Jai Kishan were lying injured in the casualty

ward of the said hospital. Upon receiving this information he

reached the hospital and met Dr. B.L. Chimpa (PW-1) and asked

him whether the injured were in a fit state to make

statements. After the doctor declared the injured fit to make

statement at about 6.20 PM vide medical opinion Ex.PE/1, he

recorded the statement of Shiv Ram being Ex. PF. In his

statement, Shiv Ram stated that he had a dispute with his

brother Khem Chand over a residential house. Though, Khem

Chand only had a share in the property but he had maintained

his residence in the entire house. At about 2.00 PM, on the

date of occurrence, his wife Omkali (PW 3) and daughters,

Bimla (PW 4) and Rachna were present in the house and at that

time the accused Khem Chand, Jai Kishan, Jai Parkash, Jagdish,

Jai Bhagwan, sons of Khem Chand, his wife Raj Bala alongwith

Dhan Singh, Devinder and Rajakali, entered their house and

opened attack upon him and on his family members. Accused

Dhan Singh was holding an Iron Rod and he inflicted a blow

with the same on the head and left ear of Shiv Ram. Accused

Jai Kishan gave lathi blows on his back and accused Jai

Parkash also inflicted a lathi blow on fingers of his right 3

hand. Lathi blows were also given by Khem Chand and Rajkali

on his hips and other parts of the body. Injuries were also

inflicted by lathi blows on Bimla, who was later examined as

PW 4. The injured persons raised hue and cry and people from

nearby started gathering, but by that time, the accused

persons ran away from the spot and while leaving, they also

threatened the injured persons that they would kill them on

the next available opportunity. After collecting the medico-

legal reports of Shiv Ram, his wife Omkali and daughter Bimla,

the Investigating Officer also took the endorsement and

signatures of Omkali and Bimla on the statement of Shiv Ram

being Ex. PF/1. On the basis of this statement, FIR No. 573

under Section 148, 452, 323 and 506 read with Section 149 IPC

was registered at about 6.15 PM on 15.07.1997 at Police

Station City, Palwal by Virender Singh, ASI (PW2). The FIR

was exhibited as PF/2.

3. The accused persons had caused injuries on the body of

the deceased as well as the injured by blunt weapons. Shiv

Ram was kept under observance in the hospital. The

Investigating Officer prepared the rough site plan of the

place of occurrence and recorded the statement of witnesses

under Section 161 of the Criminal Procedure Code (hereinafter

refer to as `Cr.PC'.) and the accused persons were taken into

custody. However, in the meanwhile, the condition of Shiv

Ram became serious and he was referred to Safdarjung

Hospital, New Delhi, where he ultimately expired on 22nd of 4

July, 1997 at about 7:30 AM. ASI Sri Niwas (PW 11), who

was then posted in Police Post, Safdarjung Hospital, New

Delhi, conducted the inquest proceedings vide Ex. PJ.

Thereafter, the body was sent for post-mortem, which was

conducted by Dr. Chandra Kant (PW 5) on 23rd July, 1997. After

the death of Shiv Ram, his son Praveen Kumar gave information

at Police Station City, Palwal about his death and Head

Constable Jagdish Chand (PW 7) converted the case into one

under Section 302 IPC and a special report Ex.PK was sent to

the Area Magistrate. After the case was registered under

Section 302, the investigation of the case was taken over from

Head Constable by SI/SHO Puran Chand, PW 9 and all the accused

except Dhan Singh were re-arrested. Then the Investigating

Officer recorded the statement of various witnesses. The

disclosure statements Ex.PM to Ex.PU were also made by accused

persons, which led to the recoveries of 7 lathis and 2 dandas

and seizure memo Ex. PV was prepared. After completion of the

investigation, the chargsheet was filed under sections 148,

149, 323, 506, 452 and 302 IPC. Since an offence under

Section 302 IPC is triable exclusively by the Court of

Sessions, the case was committed to that court. All the nine

accused were then chargsheeted. Accused Dhan Singh was

declared as a proclaimed offender. He was taken into custody

on 18.12.1997. Whereafter the supplementary challan was filed

in the Court and both these cases, having arisen out of the

same incident, were clubbed together for trial. Upon 5

completion of prosecution evidence, the statement of the

accused under Section 313 of Cr.P.C. was recorded. All the

accused declined to lead any evidence in their defence. The

learned Sessions Judge, by a detailed judgment dated 17th of

May 1999, recorded a finding that the head injury, which has

been attributed to accused Dhan Singh, was found sufficient to

cause death of Shiv Ram and his case falls under clause

`thirdly' of Section 300 IPC. The Trial Court recorded its

findings on the question of guilt as follows:

"As a result of my aforesaid discussion , I conclude that the accused Rajkali, Jai Kishan, Jagdish, Khem Chand, Jai Bhagwan, Devender, Raj Bala, Jai Prakash and Balram have committed offences under sections 148, 452, 325 and 323 read with Section 149 IPC whereas the accused Dhan Singh has committed offences under sections 148, 452, 323 read with section 149 IPC and section 302 IPC. I hold them guilty accordingly. Now for hearing these accused on the quantum of sentence to come up on 17.5.1999."

xxxx xxxx xxxx

4. The judgment of the Court of Session was only

questioned by Dhan Singh unsuccessfully before the High Court.

The High Court vide its judgment dated 30th of April, 2008 held

that the death was a direct result of the impact of injuries

attributable to the appellant by relying upon the statement of

PW 5 and declined to interfere with the conviction and

sentence of the appellant, thus giving rise to the filing of

the present appeal. The appeal has been preferred only by

accused Dhan Singh. Other accused did not challenge the

judgment of the Trial Court.

6

5. Having noticed the complete facts necessary for

determining the question raised in the present appeal, now we

shall proceed to discuss the different legal and factual

submissions made by the appellants before this Court.

6. Dying declaration:- The learned Counsel appearing for

the appellant has vehemently argued that the statement in

question (Ex.PF/1) cannot be relied upon as dying declaration

of deceased Shiv Ram in the facts of the case. In any case,

Head Constable Ram Rattan could not have recorded the dying

declaration and as per established practice it has to be

recorded by a competent Magistrate and the prosecution having

failed to place any explanation on record as to why the

statement was recorded by Head Constable Ram Rattan,

therefore, the said statement would be inadmissible in

evidence and it could not be made the basis of conviction of

the appellant. The counsel has also placed reliance upon the

judgments of this Court in Dalip Singh v. State of Punjab

[(1979) 4 SCC 332)], Cherlopalli Cheliminabi Sahed v. State of

A.P. [(2003) 2 SCC 571)], State (Delhi Administration) v.

Laxman Kumar [(1985) 4 SCC 476)] and Kanti Lal v. State of

Rajasthan [(2004) 10 SCC 113). It is obvious from the above

narrated facts that this was not a case which, to begin with,

has been registered under Section 302 IPC. The FIR was

registered under Sections 148, 452, 323 and 506 read with

Section 149 IPC, which could not be investigated by a Police 7

Officer of the rank of Head Constable. This fact is not in

dispute before us.

7. The Head Constable had received intimation from the

hospital and had gone to the hospital where he came to know

about the kind of injuries which have been inflicted upon the

three injured persons. Dr. B.L. Chimpa (PW 1) had recorded an

endorsement on Ex. PE 1 that in his opinion, Shiv Ram was fit

to make a statement and that the statement of the injured was

read over to him and after he found the statement as correct,

his signatures were obtained on the statement which were duly

signed even by the children of the deceased. After his death

on 22nd of July 1997, the FIR was converted to that under

Section 302 IPC amongst other sections and the investigation

was conducted accordingly by the officer competent in

accordance with law to conduct such an investigation. It is

not a case where no explanation whatsoever has been rendered

by the prosecution. It is in evidence that the condition of

the deceased was worsening at Government Hospital, Palwal,

therefore, he was shifted to Safdarjung Hopsital, New Delhi,

where he died. The information of the death of deceased was

given by his son Praveen Kumar at the Police Station City,

Palwal. Mere fact that the doctor had declared Shiv Ram fit

to make a statement does not mean that there was no eminent

danger of death to his life. In fact, he died within couple of

days. The learned Trial Court had also noticed these facts as

well as the fact that Shiv Ram had specifically stated the 8

role that was attributable to different accused persons. His

statement, in the form of dying declaration, was clear and

unambiguous about the role of Dhan Singh. His statement was

fully corroborated by medical evidence. In these

circumstances, the appellant can hardly take any advantage in

this regard. In the case of Dalip Singh (supra), this Court

held that the dying declaration recorded by Police Officer

during course of investigation is admissible under Section 32

of the Indian Evidence Act (for short the `Act'). In view of

the exception provided in sub-section 2 of Section 162

Cr.P.C., it is better to leave such dying declaration out of

consideration, until and unless the prosecution satisfies the

Court, as to why it was not recorded by the Magistrate or by a

doctor. We may note that the provisions of Section 32 of the

Act, by themselves, do not mandatorily require that dying

declaration has to be recorded by any designated or particular

person. The investigating agency has to keep in mind the

provisions of Section 32 of the Act read with Section 162 (2)

of the Cr.P.C. as well as the settled principle of law and act

in accordance with the established practice while recording

the dying declaration. It is more because of development of

law through pronouncement of Court's judgement that guidelines

for recording of dying declarations have been settled.

Despite their being no mandate, it is normally accepted that

such declaration would be recorded by a Magistrate or by a

Doctor to eliminate the chances of any doubt or false 9

implication by the prosecution during investigation. In terms

of Section 32 (1) of the Act, the statement made by the person

as to the cause of his death or to such circumstances, are

admissible. There is no doubt on facts of the present case

that statement of Shiv Ram, deceased was recorded only after

he was declared fit to make the statement by the concerned

doctor. The dying declaration was endorsed by none other than

the closest relation of the deceased person present at the

relevant time. The FIR itself was registered on the statement

of Shiv Ram, which was recorded by the Head Constable, who was

competent to do so at the relevant time. We are unable to

find any legal infirmity in the admissibility of such

statement per se in the facts and circumstances of the present

case. In the case of Cherlopalli Cheliminabi Sahed (supra),

this Court clearly stated that it is not absolutely mandatory

that in every case, dying declaration ought to be recorded

only by a Magistrate and it depends on the facts and

circumstances of the case. When there was no eminent danger

to life of the deceased, preferably the statement should be

recorded by the Magistrate. The judgment of that case cannot

be of much assistance to the appellant. In the case of

Kantilal (supra), the other judgment relied upon by appellant,

this Court was, primarily concerned with the facts where the

condition of the deceased to make a statement was not

satisfactorily recorded by the concerned persons. In that

case, the Court held that admissibility of dying declaration 10

as to any of the circumstances which resulted in death must

have some close and proximate relation with the actual

occurrence and such proximity would depend upon the

circumstances of each case. The dying declaration should be

voluntary and should not be a prompted one. The physical as

well as mental fitness of the maker has to be proved by the

prosecution to the satisfaction of the Court. In that case,

the doctor had neither made any endorsement nor had issued any

certificate that the deceased was fit to make a statement. It

is certainly not the case here. Here the Doctor had not only

issued a certificate but also had expressed his opinion as is

clear from Ex. PF1. Thus, this case also has no application

to the facts of the case in hand.

8. Appreciation of evidence:- It is argued that the

judgments of the Courts under appeal are liable to be set

aside as their findings are based on no evidence and are

perverse. The son of the deceased and his daughter Rachna

have not been examined as a witness. No independent witness

was examined and no definite role has been attributed to any

of the accused and, as such, the accused were entitled to

acquittal. This contention, to say the least, is without any

merit and substance. Firstly, it is clear from the record

that there was a dispute between two brothers. After the

death of Shiv Ram, it appears that the family had resolved

their dispute and the prosecution gave a satisfactory

explanation on record that Praveen and Rachna were not 11

examined by the prosecution as they were won over by the

accused. Both the family members of the deceased did not

support the case of prosecution and were declared hostile.

Keeping in view the statement of family members, other

witnesses, doctor's statement and medico-legal report as

relevant, it was felt by the Investigating Officer not to

examine the other two family members. The statement of Shiv

Ram was clear and satisfactory. PW 3 and PW 4 did not support

the case of the prosecution and were declared hostile. But,

that by itself, would not demolish the case of the

prosecution. The Court has also to keep in mind that no such

persons are permitted to defeat the course of justice and if

sufficient evidence exists and the prosecution has been able

to establish its case beyond any reasonable doubt, the Court

should punish the guilty irrespective of the fact that some

witnesses have turned hostile. The dying declaration of Shiv

Ram clinches the entire issue when read with the statement of

the doctor and his medico-legal report Ex. PA where injuries

upon the deceased have been detailed as under:-

1. A lacerated wound on the right parietal region 5 x 2.5 cm into skin deep with irregular margins and fresh bleeding.

2. A lacerated would on the left eye-brow 0.5 x 0.25 cm into skin deep with irregular margins and fresh bleeding.

3. A lacerated would on the anterior side of the left pinna 0.50 x 0.25 cm into skin deep with irregular margins and fresh bleeding.

12 4. A contusion on the left side of the face 1 cm anterior to the left ear 5 x 4 cm and reddish in colour.

5. A lacerated would on the dorsal surface of right ring finger 2 x 0.25 cm into skin deep with fresh bleeding.

6. A contusion over the left scapular region measuring 6 x 2 cm in size and red in colour.

7. A contusion over the right scapular region measuring 5 x 2 cm in size and red in colour.

8. A contusion on the posterior side of the chest 1 cm below the scapular margins. It measures 5 x 2 cm and was in red colour.

9. A contusion over the posterior side of the left wrist joint measuring 4 x 3 cm and reddish in colour.

10.A contusion over the anterior side of the left thigh in its lower third measuring 4 x 2 cm and reddish in colour."

9. There was no reason for Shiv Ram to make a false

statement, on the contrary. Despite the fact that he was

seriously injured with a very strong blow on his head by the

iron rod, he was able to specify role of each accused in the

occurrence. As per the statement of PW1, wife and daughter of

deceased Shiv Ram namely, Omkali and Bimla had received

injuries, which fully supported the case of the prosecution.

It was a case where head injury proved to be fatal leading to

the death of Shiv Ram. The injuries suffered by Omkali and

Bimla, as per the statement of other witnesses including the

Investigating Officer, have been received during the course of

occurrence and in the house of Shiv Ram. There was no 13

occasion for Shiv Ram to falsely implicate any person,

particularly, his brothers and Dhan Singh, in the present

case. The injuries suffered by the deceased are fully

corroborated by the statement of PW 1. There was no reason or

justification before the Court, not to believe these witnesses

and the medico legal report. Merely, because the members of

the family of the deceased wanted to state incorrectly before

the Court, it would not give any advantage to the appellant,

as prosecution has been able to bring home the guilt of the

accused with cogent and proper evidence. Thus, for these

reasons, we do not find any merit in the challenge to the

findings recorded in the impugned judgment.

The conviction ought to be under Section 304 Part II of IPC and not under Section 302 of IPC

10. The counsel for the appellants has placed reliance

upon the case of Jagriti Devi v. State of H.P. [(2009) 14 SCC

771], where this Court had permitted to alter the offence of

302 IPC to 304 Part II IPC while recording the finding that

the khukri used in the commission of offence was kept by the

deceased under her pillow, while she was sleeping in the

veranda outside the house. Clearly, there was no intention on

the part of the accused to kill the deceased. In the Case of

Gurmukh Singh v. State of Haryana [(2009) 15 SCC 635], there

was a single lathi blow on the spur of the moment resulting in

death of the deceased and Court permitted altering of the

offence. There cannot be any dispute to the principles stated 14

in the judgments relied upon on behalf of the appellant. But

equally true is that there cannot be any straightjacket

formula which can be universally applied to all cases of this

kind. It will always depend upon the facts and circumstances

of each case. In the present case, there is no evidence to

show that the appellant and other persons had gone to the

house of Shiv Ram with the intention to kill him. In fact, it

was a family dispute with regard to property. They had gone

equipped with lathi and Dhan Singh was carrying an iron rod.

He had given one blow on the head of the deceased and there

was no intention to kill the deceased which is obvious from

the fact that a case under Section 323 of the IPC was

registered at the very outset and Head Constable, Ram Rattan

had consulted PW 1 who had declared the condition of the

deceased to be stable as well as certified that he was in a

fit state of mind to make statement, which ultimately became

the dying declaration. From the collective analysis and

examination of the evidence on record, it appears that the

appellant had no intention to kill the deceased and did not

give him a blow with the intention to kill or with the

knowledge that it was likely to cause death.

11. For these circumstances and in line with the judgments

afore referred, we are of the considered view that the offence

of the appellant could be altered from Section 302 to Section

304 Part II of the IPC. Consequently, we hold the appellant

guilty of offence under Section 304 Part II and award him 15

rigorous imprisonment for a period of 10 years with fine of

Rs. 20,000/-. In default of payment of fine the accused shall

undergo rigorous imprisonment for a period of six months.

12. The appeal stands disposed off in the above terms.

................J. [DR. B.S. CHAUHAN]

................J. [ SWATANTER KUMAR ] New Delhi July 22, 2010