Ram Chand Gupta, J.@mdashThe present appeal has been filed against the judgment of conviction and order of sentence dated 26.4.2004 passed by the then learned Additional Sessions Judge, Amritsar, vide which accused-appellants were convicted for offences u/s 302 read with Section 34 of the Indian Penal Code (hereinafter to be referred as `IPC'') and u/s 342 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 3000/-and in default of payment of fine to further undergo rigorous imprisonment for three months each for offence under Sections 302/34 IPC and further sentenced to undergo rigorous imprisonment for six months for offence u/s 342 read with Section 34 IPC. However both the sentences were ordered to run concurrently.
2. Briefly put, the case of the prosecution is that Harjit alias Ranjit (deceased) son of Sekhar, resident of Noori Mohalla, Bhagtanwala, Amritsar, used to work on a Kabadi shop owned by Rinku. On 15.3.2003 at about 4.00 p.m. he was removing dust from the gunny bags on the shop when Beera son of Om Parkash, resident of Noori Mohalla, Bhagtanwala, (accused) came there. However he did not pay any attention to him, as he was busy in his work. Beera started abusing him on the pretext that he was putting dust on him. Harjit (deceased) told Beera that he did not do any such thing deliberately and that he was removing dust from the gunny bags and he also felt sorry for the same.
3. In the evening Happy son of Beera came to the shop and told him that he was feeling sorry for the abuses given by his father and that his father had also called him at his house to feel sorry. Hence, he accompanied Happy to his house. Beera, Geja and Kirha (all accused), all sons of Om Parkash, were found present there. As soon as he entered the house Kirhaaccused bolted the door from inside. Beera caught him from his arms and Geja caught him from his legs and Kirha poured kerosene oil on him and set him ablaze and then opened the door and thrown him out of the door. He raised hue and cry. On the way, house of his uncle Sham Lal was under construction and drum, containing water, was lying outside the house. Hence, he entered the drum to extinguish fire. In the meantime, Sham Lal, his uncle and his brother Suraj also reached there. A quilt was also put upon him. A vehicle was arranged and he was taken to Guru Nanak Dev Hospital, Amritsar. About two months ago as well, there was some quarrel between the deceased and the accused and the accused had tried to give blow with churi, (a knife) however, the complainant could save himself by running.
4. The aforementioned statement, Exhibit PK, of the deceased was recorded by Assistant Sub Inspector Sukhwinder Singh PW7, after obtaining opinion of the doctor that he was fit to make the statement on 16.3.2003, on receipt of information from MHC of Police Station C. Division, Amritsar that Harjit alias Ranjit was lying admitted in the hospital with burn injuries. The deceased thumb marked the statement after admitting the same to be correct. The Assistant Sub Inspector made his endorsement Exhibit PK/2 on the said statement, on the basis of which first information report Exhibit PK/3 was recorded by Station House Officer Natha Singh. The Assistant Sub Inspector also called Shri Rajiv Berry, Judicial Magistrate Ist Class, (hereinafter to be referred as `JMIC''), Amritsar by sending him an application Exhibit PH. Shri Rajiv Berry, JMIC, Amritsar, reached the hospital and obtained opinion of Doctor as to whether the patient was fit to make the statement and after the doctor declared the patient fit to make statement, he recorded statement of the deceased, Exhibit PH/3, and the deceased also put his thumb mark, after admitting the same to be correct. He obtained another certificate from doctor Exhibit PH/4 to the effect that the patient remained fit throughout the period his statement was recorded. He also appended his certificate Exhibit PH/5 that the statement was taken in his presence and passed order Exhibit PH/6.
5. Sukhwinder Singh, ASI visited the place of occurrence and prepared the rough site plan Exhibit PL. He also recovered match box and match sticks from the place of occurrence and after sealing the same into parcels, the same were taken into possession. Burnt shirt of Harjit (deceased), handed over to Sukhwinder Singh by Sham Lal, PW, was also taken into possession.
6. On 19.3.2003 Harjit succumbed to burn injuries in the hospital. Post mortem examination on the dead body of Harjit was got conducted. The accused surrendered before the Court of Ms. Jaswinder, Judicial Magistrate Ist Class, Amritsar, and their custody was obtained by the Investigating Officer from the Court. During investigation, Beera got recovered a cane Exhibit P3, as per his disclosure statement. Offence u/s 302 IPC was added.
7. After completion of the investigation, report u/s 173 of the Code of Criminal Procedure (hereinafter to be referred as `Cr.P.C.'') was filed against all the accused. Case was committed to the Court of Sessions by Ms. Preeti Sahni, JMIC, Amritsar, vide order dated 25.7.2003, after supplying copy of challan and accompanying documents to the accused, as required u/s 207 Cr.P.C.
8. All the three accused were charged for offences under Sections 302/342 read with Section 34 IPC by the then learned Additional Sessions Judge, Amritsar, to which they did not plead guilty and claimed trial.
9. In order to substantiate the allegation against the accused, the prosecution has examined as many as 11 Pws.
10. PW1 is Sham Lal son of Mohan Lal, who is uncle of Harjit alias Ranjit (deceased). However, he did not support the prosecution version and was got declared hostile.
11. PW2 is Suraj son of Shekhar, brother of deceased-Ranjit. However, he also did not support the prosecution version and he was also declared hostile.
12. PW3 is Head Constable Davinder Kumar, in whose presence a plastic cane was got recovered by accused Beera, in pursuance of his disclosure statement.
13. PW4 is Dr. Manpreet Kaul, the then Jr. Resident, Department of Forensic Medicines, GMC, Amritsar, who had conducted medico legal examination of Harjit (deceased) on 15.3.2003 at about 7.30 p.m. and found following injuries on his person:
Superficial to deep burn present all over the body sparing head, face, upper half of neck, dorsal aspects of right and left forearm and palm of left hand. Back boot were present at places. Singing of hairs were present all over the body except scalp and beard. Redness was present at places. Blisters were present at various sites all over the body. Patient complained of severe pain all over the body and complained of dryness of mouth. Extent of burn was approximately 90%.
14. She, however, deposed that the injury was kept under surgeon''s progress report and that probable duration of injuries was within about three hours and the nature of injury was burns by fire. He had proved carbon copy of medico legal report as Exhibit PE and pictorial diagrams showing seat of the injuries as Exhibit PE/1.
15. She further deposed that on 20.3.2003 at about 12.15 p.m., she conducted the post mortem examination on the dead body of Harjit alias Ranjit, as he succumbed to his injuries on 19.3.2003, at about 8.30 p.m. She deposed as under:
1. Superficial to deep burns were present all over the body, sparing head, face upper half of neck, dorsal aspect of right and left forearm, palm of left hand. Body hair are singed all over the body except scalp hair and facial hair. Pus points were present at places. Body was covered with white ointment and was found foul smelling. Skin was tense, leathering and hard. Red line of demarcation was present between burnt and unburnt areas. Blisters were present, ruptures at places, explosing underlying bright red area with pus points. Membrances and brain were found congested. Walls as described, pleurae was found congested, larynx and trachea were found congested. Both lungs were heavy voluminous on cut sections, froth mixed with blood, came out. Right side of the heart contained cherry bright red coloured blood and left side was found empty. The abdomen as described. Stomach contained 380 cc of greenish vegatable semi digested form. Small intestine contained chyme and large intestine contained faecal matters, liver, spleen and both kidneys were found congested. Bladder was empty and NAD. External organs as described.
16. She further deposed that the burn injuries in this case were ante mortem in nature and cause of death in her opinion was shock as a result of burn and extent of burn was approximately 90%. She also deposed that time elapsed between injury and death was approximately four days and between death and post mortem examination 12 to 24 hours. She had proved correct copy of post mortem report as Exhibit PF.
17. PW5 is Dr. Suresh Kumar, the then Jr. Resident, Surgical Ward No. 3, Guru Nanak Dev Hospital, Amritsar, before whom application Exhibit PG was moved by ASI Sukhwinder Singh on 16.3.2003, on which he made his endorsement Exhibit PG/1, declaring Harjit Singh fit to make statement. He again gave his opinion on another application Exhibit PH addressed to JMIC, Amritsar, that injured was fit to make statement and made his endorsement Exhibit PH/1. In the cross-examination, he clarified that at the end of the statement he had again given his opinion that during recording of his statement, the patient remained fit. He also clarified that the opinion regarding fitness of the patient to make statement is given only if the patient is mentally fit to give the statement.
18. PW6 is Rishi Ram, Draftsman, who prepared the site plan Exhibit PJ of the place of occurrence, at the instance of Sham Lal, PW.
19. PW7 is Sukhwinder Singh, ASI, the Investigating Officer of this case, who had first recorded the statement of the injured in the hospital, Exhibit PK, and thereafter got recorded his statement from Shri Rajiv Berry, JMIC, Amritsar, and completed the investigation of this case, as detailed above.
20. PW8 is Constable Rana Partap, who is a formal witness and who had tendered in evidence affidavit of his statement, Exhibit PS.
21. PW9 is Rajiv Berry, the then JMIC, Amritsar, who deposed that on 16.3.2003, he was posted as JMIC, Amritsar, and that he was Duty Magistrate on that day when an application Exhibit PH was moved before him and hence, he visited Guru Nanak Dev Hospital and obtained opinion of the doctor as to whether the patient was fit to make the statement by making endorsement Exhibit PH/2, on which doctor made his endorsement Exhibit PH/1 that the patient was fit to make the statement. He further deposed that he recorded the statement of Harjit and he also put his thumb impression over the same after admitting the same to be correct, which is Exhibit PH/3. He further deposed that at the end of the statement, there is another endorsement of the medical officer Exhibit PH/4 that the patient remained fit during the period his statement was recorded. He further deposed that he gave his certificate Exhibit PH/5 and he also passed order Exhibit PH/6. In the cross-examination, he clarified that he had disclosed his identity to the patient and told him that he had come to record his statement.
22. PW10 is Sub Inspector Natha Singh, who deposed that on 24.3.2003 all the three accused had surrendered in the Court and that he had gone to the Court of Ms. Jaswinder, JMIC, Amritsar and that all the three accused were arrested by him in this case. He also deposed that all the three accused were also subjected to medical examination from Civil Hospital, Amritsar.
23. PW11 is Shekhar son of Mohan Lal, father of deceased Harjit alias Ranjit. He deposed that the accused are residing in the same mohalla in their street and however, on the other points he did not support the prosecution version and was got declared hostile.
24. In the cross-examination, he admitted that Magistrate had come in the hospital and that the statement of his son -Ranjit (deceased) was recorded by the Magistrate.
25. Statement of accused in terms of Section 313 Cr.P.C. was recorded in which they denied the version of the prosecution witnesses and claimed to be innocent. They took the plea that they were falsely implicated in this case. However, no evidence was led by them in their defence.
26. Learned Additional Sessions Judge, Amritsar, convicted and sentenced the accused, as aforementioned, against which the present appeal has been filed.
27. We have heard learned Counsel for the accused and learned Additional Advocate General, Punjab, and have gone through the whole record carefully.
28. It has been argued by learned Counsel for the accused that there is delay in reporting the matter to the police and hence, concocted version was given to falsely implicate the accused as the relations between the accused and the complainant were not cordial. It has been argued that as per prosecution version occurrence had taken place at about 7.00 p.m. on 15.3.2002, whereas FIR was registered on 16.3.2003 at about 2.50 p.m. He further contended that as per the case of prosecution, deceased sustained 90% burn injuries, hence prosecution was required to prove that he was mentally fit to make the statement and that, the Medical Officer had not opined that injured was mentally fit to make the statement.
29. On this point he has also placed reliance upon Panchdeo Singh v. State of Bihar 2002(1) R.C.R.(Criminal) 126; Ramilaben Hasmukhbhai Khristi and Anr. etc. v. State of Gujarat 2002 (3) R.C.R. (Criminal) 786; Uka Ram v. State of Rajasthan 2001 (2) R.C.R. (Criminal) 416; and Smt.Laxmi v. Om Parkash and Ors. 2001(3) R.C.R. (Criminal) 358.
30. On the other hand it has been argued by learned Additional Advocate General, Punjab, that the delay is duly explained as the injured was immediately removed to the hospital and was medically examined at about 7.30 p.m. and his statement was recorded only when he was found fit to make the statement. He has further argued that if there was some delay on the part of the hospital authorities or the police officials to inform the Investigating Officer or if sometime was taken by the Investigating Officer to reach the hospital, no doubt is created in the veracity of prosecution version. She has further argued that the Investigating Officer as well as the Judicial Magistrate Ist Class, Amritsar, had recorded the statements of the injured after obtaining certificate of fitness from the medical officer and that medical officer remained present throughout the period the statement was recorded. She further argued that statement of the injured was recorded by the Magistrate after he was declared fit by the doctor and hence it cannot be said that the injured was not mentally fit to make the statement.
31. In recent judgment rendered in Jaishree Anant Khandekar v. State of Maharastra 2009 (3) RCR (Criminal) 765, Hon''ble Apex Court reiterated the principles for accepting the dying declaration u/s 32 of the Indian Evidence Act. Relevant paragraph of the same reads as under:
The judicially evolved rules of caution for acceptance of dying declaration have been stated by this Court in Paniben (Smt.) (supra), and in para Nos. 18 and 19 of the said report, this Court has formulated several principles for accepting dying declaration, which have been laid down in various judgments of this Court in the last few decades. The principles stated in Paniben (Smt.) (Supra) have been again repeated by this Court in
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar 1985 (1) RCR (Criminal) 600 (SC).
(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. 1988 Supp.SCC 152
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See
13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.)
14. There is no material to show that the dying declaration was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility.
32. As the present case is based on dying declarations of the deceased given, firstly before the Assistant Sub Inspector and thereafter before Judicial Magistrate Ist Class, we are to see by applying the aforementioned settled principles of law as to whether reliance can be placed upon the same or not. Sukhwinder Singh-ASI-PW7 recorded the statement of injured Exhibit PK at 2.15 p.m. on 16.3.2003, after obtaining opinion of the medical officer that the patient was fit to make statement, on the basis of which first information report was recorded at 2.50 p.m. Immediately, thereafter, he called for Shri Rajiv Berry, Judicial Magistrate Ist Class, Amritsar, PW9, who also obtained opinion of medical officer that the patient was fit to make the statement and recorded his statement as Exhibit PH/3. Both the statements bear thumb impression of the deceased. Shri Rajiv Berry obtained certificate of medical officer at the end of the statement as well to the effect that the patient remained fit during the period his statement was recorded. Deposition of both these witnesses further find corroboration from deposition of Dr.Suresh Kumar, PW5, who deposed that on 16.3.2003, he made his endorsement on application Exhibit PG that Harjit alias Ranjit was fit to make the statement. He further deposed that on an another application addressed to JMIC, Amritsar, Exhibit PH, he also gave his opinion that the patient was fit to make the statement. He clarified in the cross-examination that the opinion fit to make the statement can be given only if the patient is mentally fit. Moreover, as per deposition of Dr. Manpreet Kaul, PW4, the deceased had not sustained any burn injury on head, face, upper half of neck, dorsal aspects of right and left forearm and palm of left hand. Hence from deposition of both these witnesses and the medical evidence, it is duly proved that the dying declarations were voluntarily given by the deceased. Both these witnesses were acting in discharge of their official duties and hence there is nothing as to why their sworn testimony be disbelieved. Both the dying declarations are also identical on all material points and there is no material difference in the version given in both the dying declarations, which have already been reproduced above and on the basis of first dying declaration, the first information report was registered.
33. So far as the argument of learned Counsel for the accused that deceased was not mentally fit to make the statement as he suffered 90% burns is concerned, the same cannot be accepted. In this case the medical officer remained present throughout the period the statement was recorded by JMIC, Amritsar and he specifically opined that the patient remained fit throughout the period his statement was recorded by the Magistrate. He also clarified in the cross-examination that he was mentally fit to make the statement. Even JMIC, Amritsar, in his order Exhibit PH/6 has mentioned that he had disclosed his identity to the declarant. He also deposed that he had told him that he had come to record his statement and that when doctor declared that he was fit to make statement, only then he started recording the statement of the patient-Harjit alias Ranjit, which was read over to him and that he put his thumb impression after admitting the same to be correct.
34. The manner in which occurrence had taken place, as per dying declarations, further finds corroboration from medical evidence. As per deposition of Dr.Manpreet Kaul, PW4, the deceased did not receive injury on head, face, upper half of neck, dorsal aspects of right and left forearm and palm of left hand. Hence the same corroborates the version of the occurrence as given by the deceased in his dying declarations that when he entered the house of accused, Kirha bolted door from inside, accused Beera caught hold of him from his arms and Geja caught hold of him by his legs and Kirha put kerosene oil on him, set him ablaze and thereafter he was thrown out of the house and he ran away and entered into a drum containing water to extinguish the fire. Hence, he did not receive burn injury on the portion above neck and on the portion of arms and palm of left hand and the fire went downwards while he was running.
35. So far as delay in lodging the first information report in this case is concerned, the same also does not create any doubt in the veracity of prosecution version. There is no force in the argument of learned Counsel for the accused that the case of prosecution can be thrown on this ground alone. The occurrence had taken place at about 7.00 p.m. on 15.3.2003, the statement to the police was given by the deceased at 2.15 p.m. on the next day, i.e., on 16.3.2003, on the basis of which first information report was registered at 2.50 p.m.
36. On delay in lodging the first information report, reliance has been placed upon
14. When there is criticism of the ground that FIR in a case was delayed the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be physically impaired that the police had to reach them on getting some nebulous information about the incident.
15. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. Vide
It is well settled that the delay in giving the FIR by itself cannot be ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot except these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptidue in giving the report to the police. At times being grief stricken because of the calamity it may be immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.
37. It depends upon facts and circumstances of each case whether delay in lodging the first information report is such, which may create doubt on the veracity of the prosecution version.
38. In the present case the deceased had sustained 90% burn injuries, hence, worry of the complainant was to get the injured admitted in the hospital so that proper medical care could be given to save his life and he was immediately taken to the hospital and was medically examined by Dr.Manpreet Kaul at 7.30 p.m.. Information was received by the Investigating Officer through MHC of Police Station C Division, Amritsar, to whom information was supplied by the medical officer of the hospital and hence, it seems that there is some delay on the part of the doctor in sending the information to the concerned police station or there was some delay on the part of the police officials to convey the message to the Investigating Officer and some delay on the part of Investigating Officer to reach the hospital. Judicial notice can also be taken of the fact that some medicines must have been administered to the injured in the night and hence his statement was recorded only when he was found fit to make the statement. Moreover, as already discussed above, the dying declarations find corroboration from the medical evidence. Hence, delay in recording the dying declaration of the deceased cannot be said to be fatal in this case.
39. Hence the trial Court has rightly convicted and sentenced the accused as aforementioned.
40. No other point was urged.
41. We do not find any merit in the appeal. Hence, the same is, hereby, dismissed.
