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PETITIONER: JAI PRAKASH AND ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       30/07/1998

BENCH: G.T NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                        J U D G E  M E N T Nanavati. J.      The four  appellant are  challenging in this appeal the judgement 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.      What has been held proved against the appellant 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 head  body and setting her abalze. There  was no  direct evidence.  The prosecution had relied upon 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  appellant. The  High Court  also on reappreciation  of   the   evidence   accepted   the   dying declaration as  genuine and  true and  thought  it  safe  to confirm their convection on the basis thereof.      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; 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 hospitals 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. Therfore, there is no scope for

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doubting genuineness  of that statement in this case. We are emphasising this aspect because it was also contended by the learned counsel  by 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 deseased. 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.      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 necessary for him to keep any doctor present or obtain any endorsement from him.      It was  next submitted  that when  she was taken to the hospital at  7.30 a.m  she was not replying to the questions properly 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 deserve to be rejected .      It was  next contended  by the learned counsel that the statement as  not recorded  in question  and answer from and therefore no  weight should  be attracted  to  it.  It  also deserves to  be rejected as misconceived because a complaint is required  t be  recorded in question and answer from even though there  is a  possibility that  later on  it might  be treated as dying declaration receives corroboration from the site inspection  report and also by the application - Ex. PL referring to the compromise arrived at n the previous day.      The decision relied upon by the learned counsel,namely, Munna Raja  and anr.  vs. State  of M.P.  (1976 (2) SCR 764) Dalip Singh  and ors. vs. State of Punjab (AIR 1979 SC 1173) State (Delhi  Admn. ) vs. Laxman Kumar and ors. (AIR 1986 SC 250) 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 too be  suffering from  defects of the kind submitted by the learned counsel.      As we  find no  substance in  any  of  the  contentions raised by the learned counsel, this appeal is dismissed.