Dying Declaration Cannot Be Discarded Merely Because Relatives Of Deceased Were Present in Hospital While Recording It: Supreme Court

In an important, impartial, immaculate, interesting and inevitably a must read judgment titled Satpal vs. State of Haryana in Criminal Appeal No. 261 of 2021 (Arising out of SLP (Crl.) No. 5802 of 2018) delivered on March 3, 2021, the Supreme Court minced no words to observe clearly, categorically, cogently and convincingly that a dying declaration cannot be disbelieved merely because parents and relatives of the deceased were present in the hospital while recording it. While dismissing the appeal filed by a murder accused, the two Judge Bench of Apex Court comprising of Justice Ashok Bhushan and Justice R Subhash Reddy said quite explicitly, elegantly, eloquently and effectively that, “It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate.”

To start with, this notable judgment authored by Justice R Subhash Reddy for himself and Justice Ashok Bhushan sets the ball rolling by first and foremost observing in para 2 that, “This appeal has been filed by the accused in Session Case No.20 of 2008, on the file of the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, aggrieved by the judgment and order dated 05th September, 2016, passed by the High Court of Punjab and Haryana at Chandigarh, whereby, his conviction and order of sentence, for offence under Section 302 of the Indian Penal Code (IPC), was confirmed.”

To put things in perspective, the Bench then points out in para 3 that, “On information received from J. P. Hospital, Yamuna Nagar, regarding admission of the deceased, Pooja Rani, on account of burn injuries, a case was registered in FIR No. 112 on 20.03.2008, initially under Section 307 read with Section 34 of the Indian Penal Code and on death of Pooja Rani i.e. on 27.03.2008, Section 302 of the Indian Penal Code was added. On receipt of information, Mr. Ishwar Singh, A.S.I. of Police Station City, Yamuna Nagar, went to the J. P. Hospital along with other police officials and noticed that the deceased suffered 90 per cent injuries and at that stage, she was declared fit to make statement. On the request of the police, Ms. Kumud Gugnani, Judicial Magistrate, First Class, Yamuna Nagar, Jagadhri, recorded the statement of deceased, Pooja Rani.”

Simply put, the Bench then states in para 4 that, “In the declaration, recorded by the Judicial Magistrate, First Class, Yamuna Nagar, Jagadhri, the deceased has stated that the appellant/accused has poured kerosene oil and set her ablaze. After investigation, Charge-Sheet was filed against the appellant/accused and three others namely Kamlesh, Mitter Sain and Anjali, mother-in-law, brother-in-law and sister-in-law respectively of the deceased. However, vide order dated 12.08.2008, the other accused persons were discharged and charge was framed against the appellant herein, for offence punishable under Section 302 of the IPC, to which he pleaded not guilty and claimed trial.”

Interestingly enough, it is then disclosed in para 5 that, “To prove the charge framed by the appellant herein, the prosecution examined C. Narender Kumar as PW-1, C. Ram Kumar as PW-2, Jai Pal, ASI as PW-3, EHC Prem Singh as PW-4, Varsha Rani as PW-5, Kashmiri Lal as PW-6, Pyara Singh, Inspector as PW-7, Jai Kishan, ASI as PW-8, Dr. Manisha Singh as PW-9, EHC Satwinder Singh as PW-10, Raj Kumar, SI as PW-11, Lal Singh, ASI as PW-12, Dr. Amit Goel as PW-13, Balraj Singh, ASI as PW-14, Ishwar Singh, ASI as PW-15 and Kumud Gugnani as PW-16.”

As it turned out, the Bench then enunciates in para 6 that, “When the statement of the appellant under Section 313 of the Code of Criminal Procedure (Cr.P.C.) was recorded, the appellant denied the allegations levelled against him and pleaded that he was falsely implicated inasmuch as the deceased, Pooja Rani, was under a misconception that he had illicit relations with Anjali (sister-in-law). On behalf of the appellant / accused, no witnesses were examined.”

Furthermore, the Bench then envisages in para 7 that, “The Trial Court, by appreciating oral and documentary evidence on record, by judgment and order dated 03.11.2009, convicted the appellant for offence, punishable under Section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- with a default clause to undergo further rigorous imprisonment of two years.”

While continuing in a similar vein, the Bench then reveals in para 8 that, “Aggrieved by the conviction recorded and sentence imposed by the learned Additional Sessions Judge, Yamuna Nagar, Jagadhri, the appellant herein, preferred Criminal Appeal No. D-147-DB of 2010 before the High Court of Punjab and Haryana, at Chandigarh. The High Court, vide impugned judgment and order dated 05th September, 2016, dismissed the appeal by confirming the conviction recorded and sentence imposed on the appellant.”

On the one hand, it is then brought out in para 10 that, “Learned counsel for the appellant has contended that though, the evidence on record led by the prosecution, is not sufficient to prove the guilt of the accused, the Trial Court has erroneously convicted the appellant for offence under Section 302 of the IPC and the same was confirmed by the High Court without considering various grounds, raised on behalf of the appellant. It is, further, contended by the learned counsel that the conviction is mainly based on the dying declaration, recorded by the Magistrate, who was examined as PW-16. It is submitted that the dying declaration was tutored one and the same was made at the instance of family members of the deceased, who were there with the deceased in hospital at the relevant time. It is submitted that, in fact, when the deceased made attempt to commit suicide, the appellant has tried his best to extinguish the fire. Lastly, he has submitted that the conviction, recorded by the Trial Court, as confirmed by the High Court, is fit to be set aside by this Court.”

On the reverse, it is hereby pointed out in para 11 that, “On the other hand, the learned Dy. A.G., appearing for the State, has contended that the prosecution has proved the guilt of the accused for offence under Section 302 of the IPC beyond reasonable doubt. It is submitted that immediately on receipt of information, Mr. Ishwar Singh, ASI went to the hospital, along with other police officials and found that the deceased has suffered 90 per cent injuries, but she was in a fit condition to make statement. It is submitted that, on request, Ms. Kumud Gugnani, the then Judicial Magistrate, First Class, Yamuna Nagar, Jagadhri, recorded the statement of deceased, Pooja Rani under Exhibit ‘Ex-PL’, wherein she stated that she was married to the appellant three years prior to the incident and that the appellant was under the influence of his brother’s wife and used to act on her instigation. In the statement recorded, the deceased clearly stated that the appellant has poured kerosene oil on her and set her ablaze. It is submitted that merely because her family members have reached the hospital, on coming to know of the burn injuries, suffered by the deceased, it cannot be said that the declaration made by the deceased before the Magistrate was a tutored one. It is submitted that at the time of recording of statement of deceased, all the family members were sent out and the statement was recorded as deposed by the deceased. It is submitted that if the entire evidence is considered, it clearly proves the case of the prosecution for offence under Section 302 of the IPC. It is submitted that the evidence on record is properly appreciated by the Trial Court as well as the High Court, and in view of the concurrent findings, recorded by both the Courts below, no case is made out to interfere with the same.”

Briefly stated, it is then observed in para 12 that, “Having heard learned counsels on both sides, we have perused the impugned judgment, judgment of the Trial Court and other material evidence placed on record.”

It is worth noting that it is then elucidated in para 13 stating that, “In this case, it is to be noticed that, at first instance, on coming to know that the deceased, Pooja Rani, was admitted to hospital with the burn injuries, as informed by the police, the ASI went to the hospital along with other police officials. When it was noticed that the deceased has suffered 90 per cent injuries and was in a fit condition to make a declaration, he sent a request to the concerned Magistrate, upon which, the Judicial Magistrate, First Class, Yamuna Nagar, Jagadhri, recorded the statement of the deceased, Pooja Rani, which was exhibited as Ex-PL. In her dying declaration, she has clearly stated that the appellant has poured Kerosene Oil on her and set her ablaze. Though, the family members of the appellant were also chargesheeted, they were subsequently discharged vide Order dated 12.08.2008. On information given to the parents of the deceased, they have come to hospital. The deceased, Pooja Rani was admitted in the hospital on 20.03.2008 and ultimately, succumbed to injuries on 27.03.2008. It is also clear from the material evidence, placed before this Court, that though the family members of the deceased were in the hospital, they were sent out, when the dying declaration was recorded by the Magistrate, who was also examined on behalf of the prosecution as PW-16.”

Of course, the Bench then makes it amply clear in para 14 that, “If we look at dying declaration, recorded by the Magistrate, it looks natural and no reason to disbelieve the same. In addition to the dying declaration, the statements of PW-5 and PW-6, who are mother and maternal uncle respectively of the deceased, corroborate the case of prosecution. It is clear from their statements that the deceased was tortured at the hands of the appellant and his family members. The Magistrate, in her deposition, has clearly stated that the relatives of deceased, Pooja Rani, were not there at the time of recording dying declaration of the deceased.”

Going ahead, it is then brought out in para 15 that, “Further, it is also relevant to notice here, though the appellant has stated in his statement, recorded under Section 313 of Cr.P.C., that many persons from the neighbourhood came to the house of the appellant at the time of incident, no one was examined on his behalf.”

Most remarkably, what forms the cornerstone of this judgment is then stated in para 16 as: “If the dying declaration, recorded by PW-16, is considered along with the depositions of PW-5, PW-6 and other witnesses, who were examined on behalf of the prosecution, it clearly establishes the guilt of the appellant, beyond reasonable doubt, as such, we find no merit in any of the contentions, advanced by the learned counsel for the appellant. Further, merely because the parents and other relatives of the deceased were present in the Hospital, when the statement of the deceased was recorded, it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate, who was examined as PW-16.”

Finally, it is then stated in the last para 17 that, “For the above stated reasons and the reasons recorded by the High Court, we are of the view that there is no error committed in the impugned judgment and order, so as to interfere with the same in this Appeal. This Criminal Appeal is devoid of merits and the same is accordingly dismissed.”

In essence, this learned, latest, laudable and landmark judgment makes it absolutely clear that, “Merely because the parents and other relatives of the deceased were present in the Hospital, when the statement of the deceased was recorded, it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate.” This has already been stated in detail in para 16. There can be no denying or disputing it!