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2010 DIGILAW 2711 (PNJ)

Satbir Singh v. State Of Haryana

2010-09-21

JITENDRA CHAUHAN

body2010
Judgment 1. The present criminal appeal was preferred by Appellant Satbir Singh and his mother Parmali Devi, challenging their conviction under Section 304-B/43 IPC by the Id. Court of Additional Sessions Judge, Jagadhri vide judgment dated 1-10-2002. 2. Vide order dated 1-10-2002, the appellants were sentenced to 7 years of R. I. The sentence of the appellant No. 1 was suspended by this Court vide order dated 26-10-2004 and of appellant No.2 on 16-4-2004. During the pendency of the present appeal, appellant Parmali Devi died. As such, this appeal stands abated qua Parmali Devi. 3. Brief facts of the case, sans unnecessary details, as put forth by the prosecution are as follows. On 19-11-2000 at about 10:42 p.m. deceased Roshni Devi, aged 22 years, was admitted in a private hospital i.e. Gaba Hospital at Jagadhri, where she was brought by her husband i.e. appellant Satbir Singh. The treating doctor Dr. B. S. Gaba telephoni- cally informed the police since it was a case of suspected poisoning. Medical condition of the deceased was very serious and was deteriorating. As such Dr. B. S. Gaba, in the presence of Dr. Geeta and one Shri Anil Jaiswal, who happened to be there as an attendant of another patient, recorded the dying declaration Ex. PJ of deceased Roshni Devi. The dying declaration was taken down in the form of questions and answers. As per the dying declaration, the deceased stated that her husband and her mother-in-law used to harass her on account of bringing insufficient dowry and not being of their blood and on that day had severely beaten her. She also implicated her brothers-in-law and their wives (Jeth and Jathani) and further stated that everybody at home used to harass her. She also stated that she was very sad on account of her harassment and she took poison herself. 4. Thereafter, in little over an hour from the time she was brought in the private nursing home, the deceased Roshni Devi expired at about 11.55 p.m. Thereafter a ruqa was sent to the SHO Police Station Jathlana. The dying declaration was immediately handed over to the police who on the basis of same, registered an FIR and arrested the accused. As per the opinion of the doctor, the death occurred due to poisoning which was given after going through the chemical report. The dying declaration was immediately handed over to the police who on the basis of same, registered an FIR and arrested the accused. As per the opinion of the doctor, the death occurred due to poisoning which was given after going through the chemical report. During the course of investigation, the brother of husband and his wife were found to be innocent and were placed in column No. 2 of the investigation report. However, the father-in-law was also challenged along with husband and mother-in-law though during the pendency of the trial, father-in-law also expired. 5. Before the Id. Trial Court, the father and two brothers of the deceased i.e. PW-4, PW-3 and PW-5, turned hostile and completely withdrew from the prosecution case. They infact submitted that the appellant Satbir used to keep the deceased nicely and in fact it was the deceased who used to remain ill. Anil Jaiswal, purportedly in whose presence the dying declaration was recorded by Dr. B. S. Gaba, also denied that the dying declaration was ever taken down in his presence. However, there was no request from the prosecution to declare him hostile. 6. Faced with the above situation, the Id. trial Court was left with the dying declaration as the only piece of evidence in the backdrop of which the guilt of the appellant and his mother was to be established or disproved. 7. The trial Court ultimately relied on the dying declration and convicted the appellants. For recording the conviction, the learned trial Court observed that Dr. B. S. Gaba PW-6, who recorded the dying declaration, was an independent person and had no personal enmity with the appellants. There was no reason for him to falsely implicate the appellants. Moreover, the treating doctor stated in his evidence that the deceased was in a fit state. The learned trial Court also observed that conviction solely on the basis of dying declaration is permissible under law if it inspires confidence. There was no time for any kind of tutoring of the deceased since only the husband of the deceased was present in the hospital at that time. Accordingly, the learned trial Court relied on the dying declaration and held the appellants guilty. 8. Learned counsel has submitted that the alleged dying declaration recorded by Dr. Gaba is no dying declaration in the eyes of law. He has further stated that even Dr. Accordingly, the learned trial Court relied on the dying declaration and held the appellants guilty. 8. Learned counsel has submitted that the alleged dying declaration recorded by Dr. Gaba is no dying declaration in the eyes of law. He has further stated that even Dr. Gaba has submitted that he did not record the fact regarding fitness of the injured to make statement before recording the dying declaration. Moreover, Dr. Gita, who was stated to be present at the time of recording of said dying declaration, has not been examined in the instant case. Apart from non-examination of Dr. Gita, Anil Jaiswal, PW-2, who was allegedly present in the hospital when the deceased made statement before Dr. Gaba, has stated that he saw Dr. Gaba talking to the patient and Dr. Gaba did not record any statement. He has further stated that he cannot say anything whether the patient was conscious or not. 9. Learned counsel has further doubted the observation of Dr. Gaba to the extent that even if the blood pressure is zero, even then the statement of the patient remains conscious. 10. Learned counsel has further argued that the statement of Dr. Ajesh Goyal, DW-1, is much more plausible in the facts and circumstances of the case. It is admitted case of the prosecution that the deceased-injured was removed to the hospital at 10.42 p.m. and she died at 11.55 p.m. Dr. B. S. Gaba, PW-6, has admitted that the condition of the patient was very serious. 11. Learned counsel has further submitted that the prosecution case is not supported by the father and 2 brothers i.e., PWs-3, 4 and 5. All these PWs completely withdrew from their statements and prosecution declared them hostile. In fact, the family members of the deceased have categorically stated that the deceased was looked after well and it was the deceased herself who was suffering from some ailment. 12. Learned counsel for the State has submitted that the deceased was moved to the Gaba Hospital where her statement was recorded by Dr. Gaba. Dr. Gaba being a doctor, therefore, the argument that he did not record his satisfaction regarding the fitness of the patient to make statement is not relevant. Dr. Gaba is non-interested witness and his testimony inspires confidence and proves the case of the prosecution beyond reasonable doubt. 13. Gaba. Dr. Gaba being a doctor, therefore, the argument that he did not record his satisfaction regarding the fitness of the patient to make statement is not relevant. Dr. Gaba is non-interested witness and his testimony inspires confidence and proves the case of the prosecution beyond reasonable doubt. 13. The question before this Court is whether the said dying declaration was of such nature that it could be made the basis of conviction of the appellant without the need for any corroboration? It is true that there can be situations where the Court can base the conviction solely on the basis of a dying declaration and without seeking any outside corroboration. However, in such like cases, the deceased has to be in such a fit state of mind where he/she can clearly understand the implication of his statement and the context in which it is being made. For this purpose, law has imposed a precautionary exercise to the carried out in all such cases to the effect that before recording a dying declaration, the treating doctor should give a certificate of fitness and after the recording of dying declaration is over, should also certify that throughout the recording of the statement, the patient (deceased) remained in a fit state of mind. Such an exercise is necessary because it is believed by criminal jurisprudence that a dying man seldom lies. As such, is important to check whether the person making the dying declaration is in such a mental state that there are no chance of his allegations/statement being distorted by any mental or physical infirmity which may cloud his mental faculties. 14. Admittedly, the facts of present appeal are clear on the aspect that while recording the dying declaration of Roshni Devi, Dr. Gaba PW-6 did not record any certificate of fitness, either before or after recording the dying declaration. In this regard, it is relevant to highlight the cross-examination of Dr. Gaba wherein he firstly states that the patient i.e. deceased Roshni Devi, was brought to the hospital in a very serious condition. Her pulse was very feeble and her blood pressure was only 40. In the very next breath, he states that the Patient was physically and mentally fit and he has so recorded in the medical records of the deceased. Her pulse was very feeble and her blood pressure was only 40. In the very next breath, he states that the Patient was physically and mentally fit and he has so recorded in the medical records of the deceased. The most illogical part of his testimony is when he states in his cross-examination, that a person can remain fully conscious even when his blood pressure is zero. 15. In the face of the aforementioned evidence of Dr. Gaba, it is very difficult to sustain the finding of the trial Court that the dying declaration of Roshni Devi was of such a nature that no corroboration at all was required. Deceased Roshni Devi was admittedly in a very serious condition when she was brought in the hospital which fact is conclusively proved that in little over an hour of being brought in the hospital she expired. The fact of her critical medical condition is admitted by Dr. Gaba himself in his cross-examination, as has already been mentioned above. Coupled with the illogical statement of Dr. Gaba that a person can remain fully conscious even if his blood pressure is zero, it is impossible to conclude that the deceased was in such a fit state of mind where she could even understand the importance of her statement being recorded as a dying declaration. In this regard, evidence of DW-1 Dr. Ajesh Goyal, Physician in Civil Hospital, Yamunanger is also relevant. As per his testimony, if a person is having a blood pressure of 40 and synosis is also present, which was also present in this case, the patients mind would be in a state of delirium and may not even be in a position to recognize a person. 16. Dr. Geeta, the other doctor, in whose presence the dying declaration was purportedly recorded, was not examined as a prosecution witness. PW-2 Anil Jaiswal was present at the Gaba Hospital and saw Dr. Gaba, talking to the patient, has stated Dr.Gaba did not record any statement. He has further stated that he cannot say whether the patient was conscious or not. 17. To sum up, dying declaration has been time and again held to be a very important piece of evidence to the extent that solely on the basis of such a declaration, conviction can be based. He has further stated that he cannot say whether the patient was conscious or not. 17. To sum up, dying declaration has been time and again held to be a very important piece of evidence to the extent that solely on the basis of such a declaration, conviction can be based. However, it is equally important to note that in such a situation, the dying declaration has to be of such a nature that it inspires complete confidence without even hinting at the need for corroboration from attending circumstances. It is obvious that only that dying declaration can pass such a test which was made by a person in complete senses. 18. In the present case, the dying declaration has a very weak evidentiary value when viewed in the backdrop of the facts that her medical condition was very serious and no certificate of fitness was recorded by the treating doctor while taking down the dying declaratioa. Apart from this, the cross-examination of Dr. Gaba itself shows that his understanding about medical science is poor especially when he states that even a person with zero blood pressure can be fully conscious. The testimony of DW-1 in this regard is more logical and convincing. 19. In view of the above discussion, I am of the opinion that the conviction of the appellant cannot be sustained solely on the basis of the dying declaration of deceased Roshni Devi. Even otherwise also, corroboration of a dying declaration is sought by a Court while basing its conviction on it whereas in the present case not only does the dying declaration fails to inspire confidence but there is complete lack of corroboration. 20. For the reasons mentioned above, the present appeal is allowed. The judgment and order dated 1-10-2002 passed by the learned trial Court is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged.