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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 488 of 2009

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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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