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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.92 OF 2016 (Arising Out of SLP (Crl) No.7406 of 2015)

GULZARI LAL                      ……… APPELLANT Versus

STATE OF HARYANA                 ……… RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.    Delay condoned.

2.Leave granted.

3.The present appeal arises out of the impugned judgment

and  order  dated  29.05.2012  passed  in  Crl.  Appeal

No.367-DB of 2002 by the High Court of Punjab & Haryana

at Chandigarh, whereby the High Court dismissed the

appeal filed by the appellant upholding the judgment

and order of the learned District & Sessions Judge,

Fast Track Court, Hisar in Criminal Case No.37 S.C.

whereby the learned Sessions Judge had convicted the

appellant under Sections 302, 323 read with 34 of the

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Indian Penal Code (hereinafter referred to as "IPC")

and sentenced him to undergo imprisonment for life,

along with a  fine of Rs.200/-. The appellant was also

directed to pay a fine of Rs.200/- under Section 323 of

IPC.  In  case  of  default  of  payment  of  fine  of  Rs.

400/-, the appellant was further directed to undergo

rigorous imprisonment for one month.

4.Brief  facts  of  the  case  are  stated  hereunder  to

appreciate the rival legal contentions urged on behalf

of the parties:-

5.The prosecution case before the Trial Court was that on

28.05.1999 FIR No. 281 of 1999 was registered at Police

Station, Sadar Hisar against  Om Prakash, Gulzari and

Kuldeep for committing murder of one Maha Singh, and

voluntarily causing injuries to Dariya Singh (eldest

son  of  Maha  Singh)  and  that  they  have  committed

offences punishable under Sections 302,323 read with

Section 34 of IPC.

6.According to the prosecution, on the intervening night

of  26/27.05.1999,  Maha  Singh  was  brought  to  Civil

Hospital, Hisar in an injured condition. At 2.15 am,

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the doctor on casualty duty gave his opinion stating

that the injured victim was in a fit condition to make

his  statement.  Head  Constable  Manphool  Singh  (PW-7)

reached  the  hospital  at  10:00  am  and  recorded  the

statement of Maha Singh. Thereafter, the statement of

Maha Singh was sent to Police Station at 10.40 am on

27.05.1999 for recording with an endorsement that no

cognizable offence has been made out.

7.Subsequently,  the  condition  of  Maha  Singh  started

deteriorating and on the night of 27.05.1999 he was

referred to PGI Hospital Rohtak. On 28.05.1999, he was

transferred to the Government Hospital, Hisar where he

was declared by the Hospital as brought dead. On the

very  same  day,  intimation  was  sent  to  the  Police

Station and a case was registered under Sections 302

and 323 read with Section 34 of IPC on the basis of the

statement of Maha Singh recorded by the Head Constable

Manphool Singh (PW-7).

8.The inquest proceeding was conducted and post mortem of

the  body  was  done  in  the  Government  Hospital.  The

scaled  site  plan  as  well  as  rough  site  plan  was

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prepared  and  the  three  accused  were  arrested.  On

04.06.1999, ASI Ram Kumar (PW-12) arrested Gulzari Lal

(the appellant herein),  Kuldeep Singh and Om Prakash

(who were co-accused before the Sessions Court). On

completion of the investigation by the investigation

officer, challan was presented against the appellant

and the co-accused before the learned Magistrate.

9.On 18.11.999, charges were framed against the accused

persons under the provisions of Sections 302/323 read

with Section 34 IPC by the Addl. District & Sessions

Judge, Hisar.  

10. The prosecution has examined the 14 witnesses at the

time of trial and their testimony was recorded before

the  learned  Additional  Sessions  Judge.  The  accused

persons  were  examined  under  Section  313  Cr.P.C.  in

order to afford them a reasonable opportunity to defend

themselves against the evidence on record.

11. On  11.03.2002,  the  Additional  District  &  Sessions

Judge passed the judgment and order by recording the

finding that charges against the appellant proved and

convicted  him  along  with  co-accused  Om  Prakash  and

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sentenced them for life imprisonment under Sections 302

read with 34 IPC and imposed a fine on each accused of

Rs.200/- and further held that accused shall also pay a

fine of Rs.200/- under Sections 323 read with 34 IPC.

In  default  of  payment  of  fine  of  Rs.  400/-  the

defaulting  accused  would  further  undergo  rigorous

imprisonment for one month. The substantive sentences

were  ordered  to  run  concurrently.  It  was  further

ordered  that  the  period  for  which  the  accused  have

remained  in  jail  as  under  trial,  shall  be  adjusted

against term of imprisonment. The co-accused Kuldeep

Singh was acquitted of the charges framed against him.

12. Being aggrieved by the judgement and order passed by

the  learned  Additional  Sessions  Judge,  the  accused

moved the High Court of Punjab and Haryana by filing

Crl.  Appeal  No.  367-DB  of  2002  questioning  the

correctness of the finding on the charge and sentence

imposed on them. The co-accused Om Prakash died during

the pendency of the appeal before the High Court.

13. On  20.5.2012  after  re-appreciation  of  evidence  on

record, the High Court observed in its order that the

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case  in  hand  was  not  only  based  on  the  dying

declaration  of  the  deceased  but  also  on  the

un-shattered testimony of the injured eye witness which

was deemed to be the base pillar to prove the charges

against the accused. The Court further relied on the

testimony of Rajinder Singh (PW-11) who stated that he

had seen the appellant coming out of the house of Maha

Singh (deceased) through the main door. He also claimed

to have seen another person climb over and jump the

boundary wall of the house. He further stated that he

has seen Maha Singh (deceased) and Dariya Singh in an

injured  condition  inside  the  house.  The  High  Court

observed that this proves the fact that the occurrence

had taken place on the cot within the house from where,

after suffering injuries, the deceased had fallen down.

Barring minor contradictions in the evidence which in

any  case,  does  not  affect  the  substratum  of  the

prosecution case, the evidence of the abovementioned

prosecution witness is quite natural and corroborates

the other evidence on record, including the report of

the Forensic Science Laboratory as well as the recovery

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of the murder weapon. The High Court, after hearing the

arguments  of  the  learned  counsel  for  both  parties,

dismissed  the  appeal  having  found  no  merit  in  it.

Hence, the present appeal.   14. Ms. Shalu Sharma, the learned counsel appearing on

behalf of the appellant contends that the High Court

erred  in  considering  the  motive  as  alleged  by  the

prosecution did not fit in with the pattern of crime

for  the  reason  that  there  was  no  enmity  of  the

appellant  with  Maha  Singh  (deceased).  In-fact,  the

deceased had been witness in a case where the appellant

and  co-accused  were  accused.  The  deceased  got  the

matter compromised resulting in acquittal of Om Prakash

(the co-accused) and Dharam Raj. Thus, the deceased had

saved the appellant and motive cannot be attributed to

the appellant.

15. The learned counsel further contends that the alleged

dying declaration of Maha Singh (deceased) is nothing

but a concocted story. In fact, deceased did not make

any such statement against the appellant during his

life time and it was brought into existence after his

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death so as to lend more weight to the story of the

prosecution. His thumb impression was put on paper and

it  was  converted  into  dying  declaration  and  the

statement  of  Manphool  Singh,  Head  Constable  (PW-7)

clearly shows the concoction in the prosecution case

because of the reason that the injuries on Maha Singh

were of such nature that he was not in a condition to

make a coherent statement either to the Sub-Divisional

Magistrate or any authorised officer.

16. The learned counsel further placed reliance on the

Constitution Bench judgement of this Court in the case

of Tarachand Damu Sutar v. The State of Maharashtra1, wherein it was held as under: “21…  A  dying  declaration  is  not  to  be believed  merely  because  no  possible  reason can  be  given  for  accusing  the  accused falsely. It can only be believed if there are no grounds for doubting it at all.”       

17. Further reliance has been placed on the judgement of

this Court in Waikhom Yaima Singh v. State of Manipur2, wherein it was held as under:

1  AIR 1962 SC 130 2 2011 (13) SCC 125

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“20.  There  can  be  no  dispute  that  the dying declaration can be the sole basis for  conviction  however,  such  a  dying declaration has to be proved to be wholly reliable,  voluntary  and  truthful  and further that the matter thereof must be in fit medical condition to make it...”

The  learned  counsel  further  placed  reliance  on  the

decision of this Court in the case of Nanhar & Ors. v.

State of Haryana3, wherein the Division Bench of this

Court opined as under :

“33… The dying declaration should be such, which should immensely strike to be genuine and  stating  true  story  of  its  maker.  It should be free from all doubts and on going through  it,  an  impression  has  to  be registered  immediately  in  mind  that  it  is genuine, true and not tainted with doubts…”

Further, the reliance was placed in the case of  P. Mani

v.  State of Tamil Nadu4, wherein the Division Bench of this Court held that:

“14. Indisputably conviction can be recorded on the basis of the dying declaration alone but  therefore  the  same  must  be  wholly reliable. In a case where suspicion can be raised  as  regards  the  correctness  of  the dying  declaration,  the  court  before convicting an accused on the basis thereof would look for some corroborative evidence.

3 (2010) 11 SCC 423 4  (2006) 3 SCC 161

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Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as  piece  of  evidence  in  which  event conviction  may  not  be  rested  only  on  the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them…”

18. On  the  other  hand,  Mr.  Sanjay  Kumar  Tyagi,  the

learned  Counsel  appearing  on  behalf  of  the

respondent-State  sought  to  justify  the  concurrent

findings  of  fact  on  the  charges  recorded  in  the

impugned judgment and order passed by the High Court

contending  that  Rajinder  Singh  (PW-11),  who  is  an

eye-witness  to  the  entire  incident  of  murder,  has

clearly  narrated  the  whole  incident  in  his

Examination-in-Chief before the Trial Court and also

successfully identified the accused in the Court. ASI

Ram Kumar (PW-12), who partly investigated the case

also deposed of the same. The deposition of the said

witnesses and other prosecution witnesses were found

to be reliable and trustworthy by the Trial Court and

it has recorded the findings of fact on charges, with

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reason  upon  which  the  High  Court  also  gave  a

concurrent finding of fact. Therefore, the same need

not be interfered with by this Court in exercise of

its appellate jurisdiction.

19. We have heard the learned counsel appearing on behalf

of  both  the  parties.  After  carefully  examining  the

concurrent findings recorded by the Trial Court and the

High  Court  on  the  charges  and  on  perusal  of  the

material evidence on record, we find that there was no

error on the part of the High Court in passing the

impugned judgment and order. We concur with the view

taken by the High Court in upholding the findings of

the Trial Court on the charge of murder and convicting

the appellant for offences punishable under Section 302

read with Section 34 IPC.

20. The question raised by the appellant on the issue

that  no  blood  stained  earth  was  recovered  from  the

place of crime is not relevant. On this count, the High

Court has also noted the laxity on the part of the

police and rightfully concluded that the conviction was

valid in light of the statements made by the deceased

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and the witnesses. Further, reliance was placed on the

case  of  Ram  Avtar  Rai  &  Ors. v. State  Of  Uttar Pradesh5, wherein the Division Bench of this court held

as under:

"10. We agree with the High Court that the occurrence had taken place about 15 paces away from the house of the deceased and P.W. 1. It is true that blood-stained earth has not  been  recovered  from  the  scene  of occurrence  by  the  investigating  officer though as stated earlier, the deceased had sustained as many as 5 lacerated injuries besides a number of contusions and abrasion. From  the  failure  of  the  investigating officer to recover blood stained earth from the scene of occurrence, it is not possible to infer that the occurrence had not taken place in front of the house of the deceased and P.W. 1. The evidence of P.Ws. 2 and 3 could  not,  therefore,  be  rejected  as unreliable as has been done by the learned Sessions Judge. We agree with the High Court that as the occurrence had taken place in front of the house of the deceased P.Ws. 2 and 3 who are members of the family of the deceased and P.W. 1 are natural witnesses who  would  have  come  out  of  the  house  on hearing the alarm of the deceased who had received as many as 34 injuries... "    

21. We find no infirmities with the statements made by

the  deceased  and  recorded  by  the  Head  Constable

5 (1985) 2 SCC 61

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Manphool Singh (PW-7). A valid dying declaration may be

made without obtaining a certificate of fitness of the

declarant by a medical officer. The law regarding the

same is well-settled by this Court in the decision of

Laxman v. State  of  Maharashtra6,  wherein  this  Court observed thus:

"3. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded  by  a  magistrate  there  is  no specified  statutory  form  for  such recording.  Consequently,  what  evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony  of  the  magistrate  that  the declarant  was  fit  to  make  the  statement even without examination by the doctor the declaration can be acted upon provided the court  ultimately  holds  the  same  to  be voluntary and truthful. A certification by the doctor is essentially a rule of caution and  therefore  the  voluntary  and  truthful nature  of  the  declaration  can  be established otherwise."

Further, clarity on the issue may be established by the

judgment of this Court in the case of Paras Yadav & Ors. v.

6 (2002) 6 SCC 710

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State of Bihar7, wherein this Court addressed the question

regarding the dying declaration that was not recorded  by

the doctor  and where the doctor had not been examined to

say that the injured was fit to give the  statement. It has

been held by this Court as under :  

"8....In such a situation, the lapse on the  part  of  the  Investigating  Officer should  not  be  taken  in  favour  of  the accused,  may  be  that  such  lapse  is committed  designedly  or  because  of negligence.  Hence,  the  prosecution evidence  is  required  to  be  examined  de hors such omissions to find out whether the said evidence is reliable or not."

 In  reference  to  the  position  of  law  laid  down  by  this

Court, we find no reason to question the reliability of the

dying declaration of the deceased for the reason that at

the  time  of  recording  his  statement  by  Head  Constable,

Manphool Singh (PW-7),he was found to be mentally fit to

give  his  statement  regarding  the  occurrence.  Further,

evidence of Head Constable Manphhol Singh (PW-7) was shown

to  be  trustworthy  and  has  been  accepted  by  the  courts

below. The view taken by the High Court does not suffer

from any infirmity and the same is in order. 7 (1999)2SCC126

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22. The conviction by the High Court was based not only

on the statements made by Maha Singh (deceased) but

also on the un-shattered testimony of the eye-witness

Dariya  Singh  (PW-1)  and  the  statement  of  the

independent witness Rajinder Singh (PW-11).

23. For the reasons stated supra, this Court does not

find any reason to interfere with the impugned judgment

and order passed by the High Court of Punjab & Haryana.

The appeal being devoid of merit is hereby dismissed.

                              ……………………………………………CJI.                                       [T.S. THAKUR]

         …………………………………………………J.    [V. GOPALA GOWDA]

New Delhi, February 2, 2016

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ITEM NO.1A-For Judgment     COURT NO.10               SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Crl.A. No. 92/2016 @ Special Leave Petition (Crl.) No(s).  7406/2015 GULZARI LAL                                        Petitioner(s)                                 VERSUS STATE OF HARYANA                                   Respondent(s) Date : 02/02/2016 This appeal was called on for pronouncement of  JUDGMENT today. For Petitioner(s)                      Ms. Shalu Sharma,Adv.

Mr. Rajesh Sharma, Adv.                       For Respondent(s)                      Mr. Sanjay Kumar Visen,Adv.          

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment  of  the  Bench  comprising  Hon'ble  the  Chief Justice and His Lordship.  Delay condoned.  Leave granted. The  appeal  is  dismissed  in  terms  of  the  signed

Non-Reportable Judgment.           (VINOD KUMAR)        (CHANDER BALA)

  COURT MASTER         COURT MASTER    (Signed Non-Reportable Judgment is placed on the file)