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PETITIONER: SURINDER KUMAR AND ANR.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT28/04/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) FATHIMA BEEVI, M. (J)

CITATION:  1992 AIR 2037            1992 SCR  (2) 910  1992 SCC  Supl.  (2) 559 JT 1992 (3)    64  1992 SCALE  (1)999

ACT:      Indian penal Code, 1860:      Sections  34,  302 and 498-A-Death on account  of  burn injuries-Dying  declaration  made by  deceased  in  hospital before  Judicial Magistrate-Doctor certifying  that  patient remained  conscious at the time of recording  of  statement- Whether  there  was  any infirmity  in  recording  of  dying declaration-Conviction  based  on  such  dying  declaration- Whether justified.

HEADNOTE:     The first appellant’s second wife died of burn injuries sustained  by her. The first appellant and his son from  his first  wife  were tried for the murder of the  deceased  and also  for  subjecting  her  to  cruelty.  The  trial   court convicted both of the them under section 302 and 498-A  read with Section 34 of the Indian Penal Code on the basis of the dying  declaration made by the deceased before the  Judicial Magistrate.  The  High Court, on  appeal,  maintained  their conviction and sentence under Section 302 read with  Section 34 Indian Penal Code but acquitted them of the offence under Section 198-A read with Section 34.      In  the  appeal,  by special leave, on  behalf  of  the appellants-accused it was contended that the statement  made by  the deceased before the doctor, who had admitted her  in the  hospital,  giving cause of her death as  burn  injuries sustained  by  her while cooking food on gas stove  was  the earliest  version and amounted to a dying  declaration,  and there  being  two  contradictory  statements  made  by   the deceased,  the dying declaration recorded by the  magistrate was  not worthy of credit and conviction of  the  appellants could not be based on it.      Dismissing the appeal, this Court,      HELD  : 1.1. The conviction of the appellants is  based on  the  dying  declaration  made by  the  deceased  in  the hospital before a Judicial Magistrate. The doctor  certified that the patient remained conscious                                                        911 during  the period her statement was recorded. The  Judicial Magistrate recorded a certificate that the statement of  the deceased  was recorded by him and it contained true  version

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of her statement and she had thumb marked the same. In  view of  the doctor’s certificate, there is no infirmity  in  the recording of the dying declaration by the magistrate and the same inspires confidence. [912 C-D]      1.2  It was the first appellant who brought  his  wife, deceased, to the hospital and he remained present while  the deceased was examined by the doctor. It is nowhere mentioned in  the  record  that what was recorded by  the  doctor  was stated by the deceased. Therefore, what was recorded by  the doctor could not be the version of deceased herself. Had  it been  so,  the doctor may not have used the  word  "alleged" while  recording  that the patient received  injuries  while cooking  food  in  gas-stove. The doctor,  did  not  mention anywhere  of  the  record about the state  of  mind  of  the deceased,  whether  she  was conscious or not.  It  is  more probable  that  what was recorded by the doctor was  at  the instance of the husband who was accompanying his wife at the time of her examination by him. Therefore, the courts  below have  rightly  rejected  the  defence  plea  that  what  was recorded by the doctor was at the instance of the  deceased. The  trial court has also rightly rejected the  evidence  of defence witnesses. There is no infirmity in the judgments of the courts below. [1912 G-H, 913 A-C]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No. 150 of 1992.      From  the  Judgment and Order dated  21.8.1991  of  the Punjab and Haryana High Court in Criminal Appeal No.  210-DB of 1989.      U.R.  Lalit,  B.S.  Katial and S.  Muralidhar  for  the Appellants.      Ms. Indu Malhotra for the Respondent.      The following order of the Court was delivered :      Sheema,  second  wife  of  appellant  Surinder Kumar, sustained  70 per cent burn injuries in an occurrence  which took place of May 16, 1987 and ultimately succumbed to those injuries on May 22, 1987. Surinder Kumar and his son  Sanjiv from his first wife were tried for the murder of Sheema  and also  for  subjecting  her  to  cruelty.  The  trial   court convicted both of them under Sections 302/34 and 498-A/34 of the Indian Penal Code. They                                                        912 were sentenced for life and a fine of Rs. 500  on the  first count and rigorous imprisonment for two years and a fine  of Rs.  200  on the second count. The High  Court,  on  appeal, maintained  their  conviction  and  sentence  under  Section 302/34 Indian Penal Code. They were, however, acquitted   by the High Court of the offence under Section 498-A/34  Indian Penal  Code. This appeal by way of special leave is  by  the appellants against their conviction and sentence.      The conviction of the appellants is based on the  dying declaration  made by the deceased in the hospital  before  a Judicial. Magistrate. The doctor certified that the  patient remained  conscious  during  the period  her  statement  was recorded.  The  judicial Magistrate recorded  a  certificate that  the  statement of Sheema was recorded by  him  and  it contained  true version  of her statement and she had  thumb marked the same. We have been taken through the text of  the dying  declaration.  We are satisfied that in  view  of  the doctor’s certificate, there is no infirmity in the recording of  the   dying declaration by the magistrate and  the  same inspires confidence.

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    Mr.  U.R. lalit, learned senior advocate appearing  for the  appellants  has  vehemently contended  that  Dr.  Ashok Tandon  who admitted the deceased in the  hospital  recorded that the patient ‘allegedly’ got burns while cooking food on gas-stove. Mr. Lalit further contended that Dr. Ashok Tandon appearing  as  PW  11 has deposed that at the  time  of  his examination the patient was conscious and she told him  that she  got the burn injuries while cooking food on  gas-stove. Mr.  Lalit  has  argued that the statement  made  by  Sheema before the doctor giving cause of her death is the  earliest version and amounts to a dying declaration. According to him there being two contradictory statements by the deceased the dying  declaration recorded by the Magistrate is not  worthy of  credit and conviction of the appellants cannot be  based on the same. We do not agree. it was accused Surinder  Kumar who brought his wife Sheema to the hospital and he  remained present while the deceased was examined by the doctor. It is nowhere  mentioned in the record that what was  recorded  by the  doctor was stated by the deceased. it is  evident  that what was recorded by Dr. Tandon could not be the version  of Sheema herself. Had it been so the doctor may not have  used the word "alleged" while recording that the patient received injuries while cooking food on gas-stove. Dr. Tandon did not mention  anywhere on the record about the state of  mind  of Sheema. It was nowhere recorded whether she was conscious or not. It is difficult                                                        913 to believe that the doctor made his deposition in the  court on  the basis of his memory. it is more probable  that  what was  recorded  by  Dr. Tandon was at  the  instance  of  the husband  who  was accompanying his wife at the time  of  her examination  by Dr. Tandon. On the above reasoning both  the courts  below have rejected the defence argument  that  what was recorded by Dr. Ashok Tandon was at the instance of  the deceased.  We see no ground to differ with  the  conclusions reached by the courts below.      Mr.  Lalit  has  further argued that  the  evidence  of defence  witnesses was not taken into consideration  by  the High  Court.  We  have read the  statement  of  the  defence witnesses  along  with Mr. Lalit. We are  not  impressed  by their  testimony.  The trial court  rightly  rejected  their evidence.      We  see  no infirmity in the judgments  of  the  courts below.  We  agree  with the reasoning  and  the  conclusions reached by the High Court.      We, therefore, dismiss the appeal. N.P.V.                                      Appeal dismissed                                                        914