Satish Kumar Vs. State of Punjab
EmailAppeal: Criminal Appeal No. 532 of 1994
Petitioner: Satish Kumar
Respondent: State of Punjab
Apeal: Criminal Appeal No. 532 of 1994
Judges: Y.K. SABHARWAL & H.K. SEMA, JJ.
Date of Judgment: Aug 10, 2002
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Sections 27, 3 with Indian Penal Code, 1860 – Section 302 – Dying declaration – Authenticity – Two dying declaration – One made to executive magistrate and other to police officer – Patient not fit for statement – Statement not in question answer form – Time of recording statements not mentioned – No endorsement of doctor about patient being fit for state-ment – Magistrate not obtaining opinion, nor statement recorded in presence of doctor – Both scribes of statement coming at the time when patient declared unfit for statement – Lot of discrepancies in statements of doctors, magistrate and police officer – Material part of treatment withheld, particularly of the span of time when statements were allegedly recorded – Both statements verbatim – Not ascertainable as to which was recorded first. Held that statements were not reliable and if once discarded nothing remains to survive. Appeal allowed.
Held:
The High Court has not analysed and examined the evidence in a critical manner and in a casual manner confirmed the conviction relying upon the dying declaration recorded by the executive magistrate. The contention that doctor PW12 had himself stated that the executive magistrate did not record the statement of the injured in his presence was discarded by observing that the doctor was under stress of 8cross-examination thus inferring that he was present when the dying declaration was recorded despite a categorical statement to the contrary by him. Neither the redical evidence nor the statement of the police officers — PW5 and PW11 was considered with reference to the other material on record. The casual manner of examination of the case by the High Court has resulted in miscarriage of justice to the appellant. The investigation is highly tainted. We have serious doubts about the authenticity of the dying declaration. If the dying declarations are discarded there remains hardly any evidence to uphold the conviction of the appellant. (Para 10)
JUDGEMENT:
ORDER
1. The appellant was charged and convicted by court of sessions for offence under section 302 IPC for the murder of his wife-Neelam. His conviction and sentence of life imprisonment has been upheld by the High Court in appeal. The correctness of the conviction and sentence is under challenge in this appeal filed by the husband, on grant of leave.
2. Appellant and Neelam were married in the year 1981. The incident of burning took place at 8.30 p.m. on 25.5.1989. They had two children. According to prosecution Neelam was regularly subjected to cruelty by her husband and mother-in-law and such an incident had also taken place on 25th May, 1989 before the incident of burning when she was taunted by her mother-in-law and the husband-appellant. Further the case of the prosecution is that the appellant took Neelam to the backside of the house in which they were living and after pouring kerosene had put her on fire. After some time he started shouting that as to what had happened to Neelam and had also put water on her body. It attracted other people. On account of non availability of the doctor, the husband said that the matter will be considered the next day morning but the people asked him to get Neelam admitted in the hospital at that very time and, therefore she was taken to hospital.
3. Neelam was admitted in SGTB hospital, Amritsar at 12.30 a.m. on 26th May, 1989, i.e. midnight of 25/26th May, 1989. She died on 8.6.1989 in Kakkar hospital where she had been taken by her relations on 29.5.1989. She remained in SGTB Hospital from early hours of 26.5.1989. i.e. from time of admission, upto 29th May, 1989. According to case history exhibit PB-1 she ‘absconded’ from SGTB hospital. The term ‘absconded’ has been used, it is agreed by the learned counsel, to show that discharge from SGTB hospital was taken at her own risk.
4. The conviction of the appellant is based primarily on dying declaration of the deceased. Two dying declarations have been proved by the prosecution. Both have been recorded on 26th May, 1989. Exhibit PW10/A is a dying declaration that has been recorded by PW-10 Hardip Singh Bal – district revenue officer-cum-executive magistrate. Exhibit PL is the other dying declaration that has been recorded by ASI Sarwan Ram – PW11. Besides the testimony of PWs 10 & 11, the testimony of Dr. Kashmir Singh – PW12 and that of Dr. Amrik Singh Bhatia – DW2 is also required to be examined. Further, it appears from the testimony of PW5 head constable Sucha Singh that on early morning of 26th May, 1989 Neelam was unfit to give statement. Exhibit PE is the application given by PW5 to medical officer of SGTB hospital requiring to know whether she is fit to make a statement or not. Exhibit PE/1 is the endorsement of the doctor that the patient is unfit to give the statement. That endorsement has been made by the doctor at 5.30 a.m. on 26.5.1989. We do not know as to which doctor made that endorsement. The name of the doctor has neither come in the statement of PW2 nor in the testimony of any other doctor.
5. The time of recording of the two dying declarations has not been mentioned on the dying declarations exhibit PW10-A and exhibit PL. It is also not clear as to which of the two dying declarations was recorded earlier in point of time. There are material contradictions about it in the testimony of PW10 and PW11. On a query from us, learned counsel for the state submitted that exhibit PL was recorded earlier in point of time. This submission was made probably for the reason that if it was otherwise then question that would arise is that if the magistrate had already recorded the dying declaration, what was the need to record the second declaration by the police officer and that too within a short span of time. According to police officer PW11 when he went to the hospital and recorded the dying declaration the magistrate had already recorded the dying declaration and had left the hospital. At this juncture, it may also be noticed that none of the dying declarations contain an endorsement about the patient being fit to make the statement. PW12, has, however, deposed that he had declared the injured fit to make the statement. We would revert to the statement of PW12 a little later. The dying declarations are not in question-answer form. Further what is intriguing is that both the dying declarations are almost verbatim same. One appears to be the copy of the other though both purport to be originals – one recorded by the executive magistrate and the other by the police officer. It may also be noticed that the magistrate admitted that he had not obtained the opinion of doctor. He said that when he went to the hospital Neelam was fit to make the statement. According to him the statement of Neelam was recorded in the presence of doctor PW12 who was on duty in the ward. When testimony of doctor PW12 is examined it shows that the executive magistrate did not record the statement of the injured in the presence of the doctor. He says “executive magistrate did not record the statement in my presence. I do not know the exact time when the statement was recorded. I was in the ward when the statement was recorded. I signed the statement at the instance of Mr. Bal.” Regarding the ward it is evident that the duty of PW12 was not in the ward in which Neelam was admitted. PW12 was on duty in sixth surgical ward whereas Neelam was admitted in 5th surgical ward. PW12 Dr. Kashmir Singh does not claim to have treated Neelam. None from ward no. 5 was examined by the prosecution. According to PW12 both PW10 and PW11 had come to him at 1.30 p.m. when he had declared the injured fit to make a statement. PW11 does not support PW12 on this aspect. According to PW11 when he went to PW12 to find out whether Neelam was fit to make the statement or not, the magistrate had not been deputed to record the statement of the injured. The statement of PW11 is that at about 12.30 p.m. on 26th May on the statement of the brother of the deceased FIR was recorded. He went to hospital, met doctor to ask him as to whether the statement of the injured could be recorded or not. When doctor opined in the affirmative he went to the district magistrate who deputed Mr. Bal to record the statement. Thereafter, PW11 went to the place of occurrence, conducted investigation, collected items. During this time, the magistrate went to the hospital. When PW11 reached the hospital the magistrate had already left the hospital and he was told by the injured that her statement had been recorded by the magistrate. According to doctor, as noticed above, the magistrate and the police officer Sarwan Ram went to him at 1.30 p.m. when he declared the injured fit to make the statement. There are no contemporaneous documents in support of the statement made nearly 3-1/2 years of the date of the incident. If the statement of the injured had already been recorded by the magistrate what was the occasion for the police officer to again record the same remains unexplained. It assumes importance when seen in the light of the fact that both dying declarations are verbatim same. Under these circumstances, the question is not of ignoring the dying declaration recorded by the police officer but is the motive and the object behind recording of the second dying declaration. These questions assume greater significance when examined in the light of the burn injuries which Neelam had received, her physical and mental state of affair, the course of treatment in the hospital, the recording of the FIR, the time of forwarding of the FIR to the magistrate under section 157 Cr.P.C. and other circumstances established on record.
6. None of the doctor who treated Neelam or was on duty in the ward in which she was admitted, was produced by the prosecution. However, defence examined Dr. Amrik Singh Bhatia (DW2). He was posted in 5th surgical ward in which Neelam was admitted on 26th May, 1989. According to his testimony she was having 95% burn injuries. Dr. PS Bedi was incharge of the ward. If DW2 was not examined by the prosecution allegedly for the reason that he had been won over, what was the reason for not examining Dr.PS Bedi remains unexplained. According to testimony of DW2 injured never came out of shock throughout her stay in the hospital and was never fit to make the statement. Exhibit PB/1 is signed by DW2. DW2 deposed in court on the basis of his written note dated 27th July, 1989 and signed by him. DW2 gave opinion on the matter being referred to him by Dr. Bedi on an application moved by the police before the medical officer seeking opinion on the percentage of the burn on the person of Neelam and whether she was fit to make statement before the magistrate. Merely because witness has been examined by the defence it does not follow that the witness is not speaking the truth or has been won over. When DW2 was asked to give opinion on the application of the police, he had to give an independent opinion and not an opinion which favours the police.
7. The prosecution has not produced the MLC. No reasons for that document not coming forth have been explained. According to the documents produced by the prosecution also, it seems evident that the injured had 95% burns all over the body except face. It seems that even her lips had been burnt. Her pulse and blood pressure were unrecordable. At the time of admission she was semiconscious. Besides other medicines morphine injection of 15 mg was advised. The treatment chart shows that at 1.30 a.m. an injection of morphine was given. Again it was repeated at 2.30 a.m. She was admitted in the hospital, as noticed earlier, at 12.30 a.m. The doctor at 5.30 a.m. had endorsed on the applications given by PW5 that the injured was unfit to make the statement. The only record in the form of case history that is available on record after 2.30 a.m. on 26th May, 1989 is of 27th May at 1.30 a.m. The record of treatment for nearly 23 hours has been withheld. That was the crucial period, for it is during that period her dying declaration is alleged to have been recorded. Even the record that is available from 1.30 a.m. of 27th May shows that the patient was being regularly examined after every 2/3 hours and was in precarious condition inasmuch as till 8.45 a.m. on 27th May, 1989. Her pulse and blood pressure were unrecordable.
8. PW5 went to hospital at 5.30 a.m. It remains unexplained as to why the FIR was not recorded till 12.30 p.m., i.e. after PW11 met the brother of Neelam. Under the totality of circumstances delay in recording of FIR assumes significance. The FIR was despatched to the magistrate the next day, i.e. 27th May at 9.00 a.m.
9. In exhibit PO/1 being a letter on which PW12 made endorsement that patient is fit for giving statement, the month under his signature, it is not disputed, was first written as ‘7’ i.e. July. It was later changed to ‘5’ i.e. May. PW12 explained that at that very moment he corrected the date. In a given case there can be a genuine mistake but having regard to the discrepancies already pointed out coupled with the fact that the opinion sought by the police from the medical officer in exhibit DD was on 24th July and the opinion of DW2 on 27th July was that the patient was never fit to make the statement. This opinion was produced by the defence and not by the prosecution. Under these circumstances, the aforesaid correction raises a doubt on the explanation of the doctor that in fact by mistake he had written July but at that very moment corrected July to May. All the aforesaid factors by itself may be of little significance. They, however, assume importance when examined in the totality of the circumstances. We may also notice the deposition of PW7 being brother of the deceased. He deposed as under:
“…I remained present in the hospital with my sister. So far as I recollect the police had come in the hospital again on 26.5.89. Some magistrate had come in the evening. The magistrate was also accompanied by the police. I remained present with my sister for 4/5 hours. My uncle Roshan Lal and my aunt also came there while I was in the hospital. I was present near the bed of my sister, when the magistrate came, 3/4 my relatives were also present on the bed side, when the magistrate had arrived. The magistrate remained present in the hospital for 15 minutes…”
10. The discrepancies pointed out hereinbefore are very material. They go to the root of the case of the prosecution. The High Court has not analysed and examined the evidence in a critical manner and in a casual manner confirmed the conviction relying upon the dying declaration recorded by the executive magistrate. The contention that doctor PW12 had himself stated that the executive magistrate did not record the statement of the injured in his presence was discarded by observing that the doctor was under stress of cross-examination thus inferring that he was present when the dying declaration was recorded despite a categorical statement to the contrary by him. Neither the redical evidence nor the statement of the police officers — PW5 and PW11 was considered with reference to the other material on record. The casual manner of examination of the case by the High Court has resulted in miscarriage of justice to the appellant. Therefore, we have examined the evidence in the manner aforesaid. The investigation is highly tainted. We have serious doubts about the authenticity of the dying declaration. If the dying declarations are discarded there remains hardly any evidence to uphold the conviction of the appellant.
11. For the aforesaid reasons we set aside the impugned judgment and acquit the appellant giving him the benefit of doubt. The appellant is stated to be on bail. The bail bonds are discharged. The appeal is accordingly allowed.
1. The appellant was charged and convicted by court of sessions for offence under section 302 IPC for the murder of his wife-Neelam. His conviction and sentence of life imprisonment has been upheld by the High Court in appeal. The correctness of the conviction and sentence is under challenge in this appeal filed by the husband, on grant of leave.
2. Appellant and Neelam were married in the year 1981. The incident of burning took place at 8.30 p.m. on 25.5.1989. They had two children. According to prosecution Neelam was regularly subjected to cruelty by her husband and mother-in-law and such an incident had also taken place on 25th May, 1989 before the incident of burning when she was taunted by her mother-in-law and the husband-appellant. Further the case of the prosecution is that the appellant took Neelam to the backside of the house in which they were living and after pouring kerosene had put her on fire. After some time he started shouting that as to what had happened to Neelam and had also put water on her body. It attracted other people. On account of non availability of the doctor, the husband said that the matter will be considered the next day morning but the people asked him to get Neelam admitted in the hospital at that very time and, therefore she was taken to hospital.
3. Neelam was admitted in SGTB hospital, Amritsar at 12.30 a.m. on 26th May, 1989, i.e. midnight of 25/26th May, 1989. She died on 8.6.1989 in Kakkar hospital where she had been taken by her relations on 29.5.1989. She remained in SGTB Hospital from early hours of 26.5.1989. i.e. from time of admission, upto 29th May, 1989. According to case history exhibit PB-1 she ‘absconded’ from SGTB hospital. The term ‘absconded’ has been used, it is agreed by the learned counsel, to show that discharge from SGTB hospital was taken at her own risk.
4. The conviction of the appellant is based primarily on dying declaration of the deceased. Two dying declarations have been proved by the prosecution. Both have been recorded on 26th May, 1989. Exhibit PW10/A is a dying declaration that has been recorded by PW-10 Hardip Singh Bal – district revenue officer-cum-executive magistrate. Exhibit PL is the other dying declaration that has been recorded by ASI Sarwan Ram – PW11. Besides the testimony of PWs 10 & 11, the testimony of Dr. Kashmir Singh – PW12 and that of Dr. Amrik Singh Bhatia – DW2 is also required to be examined. Further, it appears from the testimony of PW5 head constable Sucha Singh that on early morning of 26th May, 1989 Neelam was unfit to give statement. Exhibit PE is the application given by PW5 to medical officer of SGTB hospital requiring to know whether she is fit to make a statement or not. Exhibit PE/1 is the endorsement of the doctor that the patient is unfit to give the statement. That endorsement has been made by the doctor at 5.30 a.m. on 26.5.1989. We do not know as to which doctor made that endorsement. The name of the doctor has neither come in the statement of PW2 nor in the testimony of any other doctor.
5. The time of recording of the two dying declarations has not been mentioned on the dying declarations exhibit PW10-A and exhibit PL. It is also not clear as to which of the two dying declarations was recorded earlier in point of time. There are material contradictions about it in the testimony of PW10 and PW11. On a query from us, learned counsel for the state submitted that exhibit PL was recorded earlier in point of time. This submission was made probably for the reason that if it was otherwise then question that would arise is that if the magistrate had already recorded the dying declaration, what was the need to record the second declaration by the police officer and that too within a short span of time. According to police officer PW11 when he went to the hospital and recorded the dying declaration the magistrate had already recorded the dying declaration and had left the hospital. At this juncture, it may also be noticed that none of the dying declarations contain an endorsement about the patient being fit to make the statement. PW12, has, however, deposed that he had declared the injured fit to make the statement. We would revert to the statement of PW12 a little later. The dying declarations are not in question-answer form. Further what is intriguing is that both the dying declarations are almost verbatim same. One appears to be the copy of the other though both purport to be originals – one recorded by the executive magistrate and the other by the police officer. It may also be noticed that the magistrate admitted that he had not obtained the opinion of doctor. He said that when he went to the hospital Neelam was fit to make the statement. According to him the statement of Neelam was recorded in the presence of doctor PW12 who was on duty in the ward. When testimony of doctor PW12 is examined it shows that the executive magistrate did not record the statement of the injured in the presence of the doctor. He says “executive magistrate did not record the statement in my presence. I do not know the exact time when the statement was recorded. I was in the ward when the statement was recorded. I signed the statement at the instance of Mr. Bal.” Regarding the ward it is evident that the duty of PW12 was not in the ward in which Neelam was admitted. PW12 was on duty in sixth surgical ward whereas Neelam was admitted in 5th surgical ward. PW12 Dr. Kashmir Singh does not claim to have treated Neelam. None from ward no. 5 was examined by the prosecution. According to PW12 both PW10 and PW11 had come to him at 1.30 p.m. when he had declared the injured fit to make a statement. PW11 does not support PW12 on this aspect. According to PW11 when he went to PW12 to find out whether Neelam was fit to make the statement or not, the magistrate had not been deputed to record the statement of the injured. The statement of PW11 is that at about 12.30 p.m. on 26th May on the statement of the brother of the deceased FIR was recorded. He went to hospital, met doctor to ask him as to whether the statement of the injured could be recorded or not. When doctor opined in the affirmative he went to the district magistrate who deputed Mr. Bal to record the statement. Thereafter, PW11 went to the place of occurrence, conducted investigation, collected items. During this time, the magistrate went to the hospital. When PW11 reached the hospital the magistrate had already left the hospital and he was told by the injured that her statement had been recorded by the magistrate. According to doctor, as noticed above, the magistrate and the police officer Sarwan Ram went to him at 1.30 p.m. when he declared the injured fit to make the statement. There are no contemporaneous documents in support of the statement made nearly 3-1/2 years of the date of the incident. If the statement of the injured had already been recorded by the magistrate what was the occasion for the police officer to again record the same remains unexplained. It assumes importance when seen in the light of the fact that both dying declarations are verbatim same. Under these circumstances, the question is not of ignoring the dying declaration recorded by the police officer but is the motive and the object behind recording of the second dying declaration. These questions assume greater significance when examined in the light of the burn injuries which Neelam had received, her physical and mental state of affair, the course of treatment in the hospital, the recording of the FIR, the time of forwarding of the FIR to the magistrate under section 157 Cr.P.C. and other circumstances established on record.
6. None of the doctor who treated Neelam or was on duty in the ward in which she was admitted, was produced by the prosecution. However, defence examined Dr. Amrik Singh Bhatia (DW2). He was posted in 5th surgical ward in which Neelam was admitted on 26th May, 1989. According to his testimony she was having 95% burn injuries. Dr. PS Bedi was incharge of the ward. If DW2 was not examined by the prosecution allegedly for the reason that he had been won over, what was the reason for not examining Dr.PS Bedi remains unexplained. According to testimony of DW2 injured never came out of shock throughout her stay in the hospital and was never fit to make the statement. Exhibit PB/1 is signed by DW2. DW2 deposed in court on the basis of his written note dated 27th July, 1989 and signed by him. DW2 gave opinion on the matter being referred to him by Dr. Bedi on an application moved by the police before the medical officer seeking opinion on the percentage of the burn on the person of Neelam and whether she was fit to make statement before the magistrate. Merely because witness has been examined by the defence it does not follow that the witness is not speaking the truth or has been won over. When DW2 was asked to give opinion on the application of the police, he had to give an independent opinion and not an opinion which favours the police.
7. The prosecution has not produced the MLC. No reasons for that document not coming forth have been explained. According to the documents produced by the prosecution also, it seems evident that the injured had 95% burns all over the body except face. It seems that even her lips had been burnt. Her pulse and blood pressure were unrecordable. At the time of admission she was semiconscious. Besides other medicines morphine injection of 15 mg was advised. The treatment chart shows that at 1.30 a.m. an injection of morphine was given. Again it was repeated at 2.30 a.m. She was admitted in the hospital, as noticed earlier, at 12.30 a.m. The doctor at 5.30 a.m. had endorsed on the applications given by PW5 that the injured was unfit to make the statement. The only record in the form of case history that is available on record after 2.30 a.m. on 26th May, 1989 is of 27th May at 1.30 a.m. The record of treatment for nearly 23 hours has been withheld. That was the crucial period, for it is during that period her dying declaration is alleged to have been recorded. Even the record that is available from 1.30 a.m. of 27th May shows that the patient was being regularly examined after every 2/3 hours and was in precarious condition inasmuch as till 8.45 a.m. on 27th May, 1989. Her pulse and blood pressure were unrecordable.
8. PW5 went to hospital at 5.30 a.m. It remains unexplained as to why the FIR was not recorded till 12.30 p.m., i.e. after PW11 met the brother of Neelam. Under the totality of circumstances delay in recording of FIR assumes significance. The FIR was despatched to the magistrate the next day, i.e. 27th May at 9.00 a.m.
9. In exhibit PO/1 being a letter on which PW12 made endorsement that patient is fit for giving statement, the month under his signature, it is not disputed, was first written as ‘7’ i.e. July. It was later changed to ‘5’ i.e. May. PW12 explained that at that very moment he corrected the date. In a given case there can be a genuine mistake but having regard to the discrepancies already pointed out coupled with the fact that the opinion sought by the police from the medical officer in exhibit DD was on 24th July and the opinion of DW2 on 27th July was that the patient was never fit to make the statement. This opinion was produced by the defence and not by the prosecution. Under these circumstances, the aforesaid correction raises a doubt on the explanation of the doctor that in fact by mistake he had written July but at that very moment corrected July to May. All the aforesaid factors by itself may be of little significance. They, however, assume importance when examined in the totality of the circumstances. We may also notice the deposition of PW7 being brother of the deceased. He deposed as under:
“…I remained present in the hospital with my sister. So far as I recollect the police had come in the hospital again on 26.5.89. Some magistrate had come in the evening. The magistrate was also accompanied by the police. I remained present with my sister for 4/5 hours. My uncle Roshan Lal and my aunt also came there while I was in the hospital. I was present near the bed of my sister, when the magistrate came, 3/4 my relatives were also present on the bed side, when the magistrate had arrived. The magistrate remained present in the hospital for 15 minutes…”
10. The discrepancies pointed out hereinbefore are very material. They go to the root of the case of the prosecution. The High Court has not analysed and examined the evidence in a critical manner and in a casual manner confirmed the conviction relying upon the dying declaration recorded by the executive magistrate. The contention that doctor PW12 had himself stated that the executive magistrate did not record the statement of the injured in his presence was discarded by observing that the doctor was under stress of cross-examination thus inferring that he was present when the dying declaration was recorded despite a categorical statement to the contrary by him. Neither the redical evidence nor the statement of the police officers — PW5 and PW11 was considered with reference to the other material on record. The casual manner of examination of the case by the High Court has resulted in miscarriage of justice to the appellant. Therefore, we have examined the evidence in the manner aforesaid. The investigation is highly tainted. We have serious doubts about the authenticity of the dying declaration. If the dying declarations are discarded there remains hardly any evidence to uphold the conviction of the appellant.
11. For the aforesaid reasons we set aside the impugned judgment and acquit the appellant giving him the benefit of doubt. The appellant is stated to be on bail. The bail bonds are discharged. The appeal is accordingly allowed.
