CRA/9/2006 of TILAK RAJ Vs STATE OF J AND K on 16 November 2007

1) Whether approved for|reporting in Press/Media* Yes/No.11)Whether to be reported in |Digest/Journal |* Yes/No.

PER Virender Singh, J.|

Appellant, Tilak Raj, (hereinafter to be referred to as|“accused’) stands convicted under Section 302 RPC vide impugned|judgment of learned Sessions Judge, Kathua, dated 30[th]of May, 2006and has been sentenced to undergo life imprisonment and a fine ofRs.10,000/-,.1n|defaultthereoftofurther|undergo’simpleimprisonment for six months. Aggrieved of the same, he has filed theinstant appeal. The judgment of conviction has been sent to this Courtfor confirmation under Section 374 Cr. PC, hence Confirmation|Reference (Cr.) No.1/2006. Vide this judgment, we dispose of,Criminal Appeal as also Confirmation Reference.

Deceased in this case 1s Bimla Devi. As per the prosecution|case, the accused had developed intimacy with her, while working as.labourer at Delhi-U.P. Border and she started living with him as his|wife. His legally wedded wife, Smt. Shano Devi, (PW-7) was alive.|Two sons had also born out of the living relationship between the|accused and the deceased.

Bimla Devi was found in an unconscious state at Lakhanpur|Bus Stand in the early hours of 7[th]of September, 2003. Some onegave an information to Constable Vijay Kumar (PW-1) in this regard. Viyay Kumar, Constable happened to be on duty at Bus Stand,,Lakhanpur. Thereafter, Constable Bodh Raj (PW-2) and Head.Constable Tilak Raj (PW-3) also rushed to Bus Stand. By that time,nobody knew the name of the woman lying there. However, she was.struggling for lite. An arrangement for vehicle was made from Police,Station and she was shifted to Kathua Hospital. Constable Bodh Raj,was asked by Head Constable Tilak Raj to stay in the hospital by theside of the woman and Constable Vijay Kumar and Head Constable,Tilak Raj came to the Police Station. ASI Shiv Kumar (PW-4) (SHO.of the concerned Police Station) was directed to conduct theinvestigation. Whereupon, he reached the hospital and approached theconcerned doctor (Dr. Varinder Kumar (PW-16), moved an.application (EXPW 4-SK) for obtaining the opinion as to whether thepatient was fit to make statement. By that time, the doctor had come,to know of her name from her and the address. Vide Certificate|

EXPW 16-VK, Dr. Varinder Kumar declared her fit to make|statement at 11.00 a.m. Thereafter, her statement (EXPW 4-SK/1) wasrecorded by ASI Shiv Kumar, which was attested by Dr. Varinder|Kumar, which 1s EXPW 16/VK/1. On the basis of the statement,|report No.8 was recorded in Daily Diary registered at Police Station,Basohli, on 07-09-2003 upon which a case was initially registeredunder Section 307 RPC. After some treatment was given to her atKathua Hospital, Bimla Devi was referred to Government Medical,College Hospital, Jammu. She, however, died on the way and was.declared as “brought dead’ at 3.45 p.m. at Jammu Hospital. The casewas then converted under Section 302 RPC. Her post-mortem wasconducted by Dr. L.D. Bhagat (PW-17) on 08-09-2003.|

During investigation, it revealed that the accused was|harassing the deceased. They had left their ordinary abode at Madrak1|(Tehsil Basohhi, District Kathua) and gone ton Delhi-U.P. Border for,earning their livelihood. On 06-09-2003, he had mixed some.poisonous material in the vegetable cooked for consumption and thedeceased had consumed the same. Thereafter, he made her to board a|bus and, ultimately, on 07-09-2003 in the early hours, she was found,in an unconscious condition at Bus Stand, Laskhanpur by certain.police official. ©

The prosecution recorded the statement of certain witnesses toestablished identity of deceased and his relationship with the accused. From the statement of Smt. Shano Devi (PW-7), wife of the accused,|

recorded during investigation under Section 161 Cr. PC, it revealed.that since she did not give birth to a child, her husband (accused),procured a woman (deceased) from his place of work (Delhi-U.P..Border) and she gave birth to two children. She also stated that she|was staying separately with her sister Champa Devi. The deceased|and the accused had left their ordinary abode (Madraki) 18/19 daysbefore the alleged occurrence and she came to know that one KartarChand, Contractor of U.P. Board had employed the accused in his)Company. The FSL report EXPWI19-S revealed that the viscera ofdeceased Bimla Devi sent for clinical examination was containing,aluminium phosphide. After completion of investigation, the accused.was challaned and consequently charged under Section 302 RPC.

Before the trial Court, Smt. Shano Devi (PW-7) did not)support the case of the prosecution and was declared hostile. Hersister Champa Devi (PW-9), also deserted the prosecution case and.she too was declared hostile. Similarly, Kartar Chand, Contractor ofU.P. Border, when examined as PW-10, disowned his statement with|regard to the deceased staying with the accused. However, he deposedthat the accused had worked in his Company for about 10 (ten) days_in 2003. Similarly, another witness, Suresh Kumar, (PW-11), who was.running a shop at the U.P. Border also denied the factum of any ladyStaying with the accused.

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Another set of evidence produced by the prosecution was|from the family of the accused and they also denied the factum ofdeceased staying with the accused.

Virtually, the case of the prosecution 1s hinging upon the|Statement of Bimla Devi, since deceased, (now treated as dying|declaration) recorded by Shiv Kumar ASI (PW-4) in the presence ofDr. Varinder Kumar (PW-16). So far as cause of death 1s concerned, it,cannot be disputed that Bimla Devi died on account of consumption|of aluminium phosphide, as 1s evident from FSL report EXPW19-S.The dying declaration has been considered to be authentic by thelearned trial Court for the purposes of recording the conviction of theaccused under Section 302 RPC..

We have heard Mr. Rahul Pant, learned counsel for the)appellant, and Mr. B.S. Salathia, learned Additional Advocate General representing the State. With their assistance, we have gone through.the entire record.

Mr. Pant submits that the learned trial Court has not!appreciated the evidence in its right perspective. He contends that, nodoubt, conviction can be made solely on the basis of the dying.declaration, but before recording it, the Court has to satisfy itself that,it is free from all infirmities and unerringly points towards the guilt of|the accused. According to him, in the case in hand, the so-called dying,declaration suffers from the following infirmities:

(i) It 1s not recorded by the Magistrate, whereas the|police had ample time to requisition the service of a|Magistrate. The statement of Bimla Devi 1s recorded|in Government Hospital, Kathua, which is in the|heart of the town and, therefore, any Magistrate|could be requested for recording the same without|wasting any time. This infirmity by itself creates lot|of doubts with regard to the genuineness of the|dying declaration.

(ii)

Dr. Varinder Kumar, who is the attesting witness to |the statement, was not the treating doctor and,|therefore, it is not clear as to what was the basis withhim to declare the deceased as fit to make statement.

(iii) The best witness was Dr. Vijay Bali, who was.attending to the patient, as is clear from the|statement of Dr. Varinder Kumar or ASI Shiv)Kumar and, therefore, he should have been brought|in the witness box. He develops his arguments|further on this aspect submitting that deceased was|found 1n an unconscious condition at Bus Stand and,therefore, her condition would have deterioratedinstead of improving. In this eventuality, Dr. Bal,|who was the treating doctor, could make the positionvery clear with regard to the mental faculty of the|

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deceased and not Dr. Varinder Kumar examined by the prosecution. According to him, if the poison 1s ingested about 12 hours prior to the death, the|patient would go in coma, blood pressure would fall,pulse rate would also fall, resultantly, the breathing|would be slow. To say so, he relies upon the|evidence of Dr. L.D. Bhagat (PW-17) where he has|stated that 1f the patient 1s not in coma, then the|speech would be slurred and the brain functioning|would be depressed due to lack of oxygen supplytothe brain and in that eventuality, thought process|would also be impaired. From this, Mr. Pant submitsthat it is doubtful as to whether the deceased was, infact, in a position to make a statement at 11.30 a.m.of not. According to Mr. Pant, the case of|consumption of aluminium phosphide is either|accidental or suicidal. It can not be homicidal, as.aluminium phosphide gives very pungent smell and,as such, difficult to be administered to someone,may be by mixing it in food stuff .

ill) Mr. Pant then submits that if one reads the contents of the dying declaration, it appears that certain|words have been added by ASI Shiv Kumar makingit a case of 302 RPC. Drawing our attention to the|

8. original statement from the trial Court records,|learned counsel states that one important word °*MarJaun (in Hindi version) is out of the space and doesnot fit in the sentence. This appears to be|interpolation. Therefore, a case of suicidal death has|been converted into homicidal death.

IV).

The learned counsel then submits that even'otherwise, the dying declaration 1s not recorded in|accordance with the provisions of Rule 609 of the|Manual (&K), therefore, this infirmity also can be|considered as one of the flaws for rejecting it.

v) Mr. Pant submits that it 1s not clear as to at whichplace, the poison was administered to the deceased|at previous night, 1.e. on 06-09-2003. It could be|village Madraki, Tehsil Basohli or Delhi-U.P.|Border. The deceased was not clear as to how she)has reached Lakhanpur in the wee hours of 07-09-2003. This again indicates that the deceased was not|in a fit state of mind and possibly was not in a|position to make a statement and possibility of the|same being manufactured can not be ruled out.

v1) Mr. Pant then submits that initially it was taken bythe prosecution that the poison was administered to the deceased at Madraki1 and that 1s reason that the

Police at Police Station, Basohli had initiated theinvestigation and the FIR was registered there. It|was only during the investigation that the story waschanged by the prosecution that the deceased was|poisoned by the appellant at Delhi-U.P. Border|where she was allegedly residing with the accused.This creates a lot of doubt about the very case set upagainst the accused.|

On the basis of aforesaid submissions, Mr. Pantsubmits that the dying declaration is not free from doubt andmay not be made the basis of conviction of the accused. He,thus, prays for his acquittal —

Mr. Salathia, on the other hand, while supporting theimpugned judgment, states that there appears to be no reasonto disbelieve the dying declaration of the deceased, as itcannot be said that any of the witness was against theaccused in any manner including the police officials. At thesame time, it cannot be a case of any tutoring from any outeragency and this fact by itself 1s enough to believe the dyingdeclaration as it 1s for maintaining conviction. He thensubmits that even if it 1s not strictly in accordance with theprovisions of Police Manual, that by itself cannot be aeround to discard it. Mr. Salathia, thus, prays for

10. maintaining the conviction of the accused as alreadyrecorded by the trial Court.

The philosophy underlying admittance in evidence|of ‘dying declaration’ is that no one at the time of death 1spresumed to tell lie. Therefore, dying declaration enjoys asacrosanct status as a piece of evidence being the last wordscoming from the mouth of the deceased (victim). On thisprinciple, it 1s otherwise very well settled now that it 1s not arule of law or even the rule of prudence that the ‘dyingdeclaration’ cannot be madethe sole foundation ofconviction. This basic principle, which holds good till datewas observed in case Khushal Rao Versus State ofBombay, AIR 1958 SC 22, which view is reiterated in avery latest judgment rendered by Hon’ble Apex Court inDayal Singh Versus’ State of Maharashtra, 2007 (3)All India Criminal Law Reporter (SC) 346, wherein theirLordships have observed in para | 1 as under:

“11. The law regarding the dying declaration and thevalue which 1s to be attached to it has been examined|in considerable detail in State of Karnataka v.|Shariff, (2003) 2 SCC 473: 2003(2) All India|Criminal LR (S.C.) 533, by a Bench of which one ofuS was a member and paragraphs 18, 19, 20, 22 and|23 of the decision are being reproduced below:-.

18. The earliest case in which the law onthe point of dying declaration was

considered in detail by this Court inKhushal Rao v. State of Bombay AIR1958 SC 22. The Court ruled that itcannot be laid down as an absolute rule oflaw that a dying declaration cannot formthe sole basis of conviction unless it 1scorroborated;|eachCASEMuStTbe|determined on its own facts seeping inview the circumstances in which the dyingdeclaration was made; it cannot be laiddown as a general proposition that a dyingdeclaration 1s a weaker kind of evidencethan other pieces of evidence; a dyingdeclaration stands on the same footing asanother piece of evidence and has to bejudged in the light of surroundingcircumstances and with reference to theprinciples governing the weighing ofevidence. [t has been further held that inorder to pass the test of reliability, a dyingdeclaration has to be subjected to a veryclose scrutiny, keeping in view the factthat the statement has been made in theabsence of the accused who had noopportunity of testing the veracity of thestatement by cross-examination. But oncethe Court has come to the conclusion thatthe dying declaration was the truthfulversion as to the circumstances of thedeath and the assailants of the victim,there|1S|no,questionoffurther.corroboration.

19. In State of Uttar Pradesh v. Ram SagarYadav, (1985) 1 SCC 552 the Courtspeaking through Chandrachud, C.J. heldas under:

12.

“It is well settled that, as amatterof|law, adyingdeclaration can be acted upon)without corroboration. SeeKhushalRaoVioState|of|Bombay, AIR 1958 SC 22;Harbans Singh v. State of)Punjab, AIR 1962 SC 439,)Gopal Singh v. State of M.P.,1972 (3) SCC 268. There isnot even a rule of prudence)which has hardened into a rule.of law that a dying declarationcannot be acted upon unless it1s corroborated. The primaryeffort of the Court has to be to.find out whether the dyingdeclaration 1s true. I[f it 1s no.questionof.corroborationarises. It is only if thecircumstances surrounding thedying declaration are not clearor convincing that the Court)may, for its assurance, look for|cotroboration to the dyingdeclaration.....

20. In K. Ramachandra Reddy and Anr. v.The Public Prosecutor, (1976) 3 SCC 618it was held that a great solemnity andsanctity is attached to the words of a dyingman because a person on the verge ofdeath 1s not likely to tell lies or to concocta case so as to implicate an innocentperson yet the Court has to be on guardagainst the statement of the deceasedbeing a result of either tutoring, prompting

13. or a product of his imagination. It wasfurther held that the Court must besatisfied that the deceased was in a fit stateof mind to make the statement after thedeceased had a clear opportunity toobserve and identify his assailants and thathe was making the statement without anyinfluence or rancour. Once the Court 1ssatisfied that the dying declaration is trueand voluntary it can be sufficient to foundthe conviction even without any furthercorroboration.In.Pothakamur1 |Srinivasulu v. State of A.P., (2002) 6 SCC399 it has been held that if the deceasedmade statement to the witnesses and theirtestimony is found to be reliable the sameis enough to sustain the conviction of theaccused. In Mafatbhai1 Nagarbhai Ravalv. state of Gujarat, (1992) 4 SCC 69 it washeld that the Doctor who has examined thevictim was the most competent witness tospeak about her condition.

22. The other reason given by the HighCourt is that the dying declaration was notin question-answer form. Very often thedeceased is merely asked as to how theincident took place and the statement isrecorded in a natrative form. [In fact such astatement 1s more natural and gives theversion of the incident as it has beenperceived by the victim. The questionwhether a dying declaration which has notbeen recorded 1n question —answer formcan be accepted in evidence or not hasbeen considered by this Court on severaloccasions. In Ram Bihari Yadav v. State

14. of Bihar and ors., (1998) 4 SCC 517, itwas held as follows:

“It cannot be said that unless.the dying declaration is in)question answer form, it couldnot be accepted. Having regardto the sanctity attached to a)dying declaration as it comes)from the mouth of a dyingpersonthough,unlike|theprinciple of English law he)need not be under apprehensionof death, it should be in theactual words of the maker of.the declaration . Generally, the|dying declaration ought to be)recordedinthe|form ofquestions and answers but ifdyingdeclaration1S|notelaborate but consists of only a)few sentences and is in the.actual words of the maker the.mere fact that it 1s not in.question-answer form cannot)

be|a.groundagainstitsacceptability or reliability. Themental condition of the maker.of the declaration, alertness ofmind,WICmMorand|understanding of what he 1ssaying, are matters which can)be observed by any person.But to lend assurance to those.factors having regard to the)importance|ofthedyingdeclaration, the certificate of a'

medically trained person 1sinsisted upon.....

”.3. [In Padmaben Shamalbhai Patel v. Statof Gujarat, (1991) 1 SCC 744 it was heldthat the failure on the part of the medicalmen to record the statement of thedeceased in question and answer formcannot in any manner affect the probativevalue to be attached to their evidence.This view was reiterated in State ofRajasthan v. Bhup Ram, (1997) 10 SCC675 and Jai Prakash and ors. v. State ofHaryana, (1998) 7 SCC 284.”.

In another very recent judgment rendered by|Hon’ble Apex Court in case Smt. Shakuntala VersusState of Haryana, 2007 (4) All India Criminal LawReporter 374, while upholding the conviction of theaccused/appellant under Section 302 IPC, which was basedon the dying declaration of the victim, their Lordshipsdealing with Section 32 of the Indian Evidence Act, 1872,observed as under:

“At this juncture, it is relevant to take note of)Section 32 of the Indian Evidence Act, 1872 (in)short “Evidence Act’) which deals with cases in)which statement of relevant fact by person who 1s|dead or cannot be found, etc. 1s relevant. The)general rule is that all oral evidence must be directviz., 1f 1t refers to a fact which could be seen it)must be the evidence of the witness who says he)saw it, if it refers to a fact which could be heard, itmust be the evidence of the witness who says he)

16. heard it, if it refers to a fact which could be)perceived by any other sense, it must be the)evidence of the witness who says he perceived it)by that sense. Similar 1s the case with opinion.|These aspects are elaborated in Section 60. The)eight clauses of Section 32 are exceptions to the)general rule against hearsay just stated. Clause (1)of Section 32 makes relevant what is generally|described as dying declaration, though such an)exception has not been used in any Statute. Itessentially means statements made by a person as)to the cause of his death or as to the circumstancesof the transaction resulting in his death. The)grounds of admission are: firstly, necessity for the|victim being generally the only principal eye-witness to the crime, the exclusion of the)statement might deflect the ends of justice; and)secondly, the sense of impending death, which|creates a sanction equal to the obligation of an)oath. The general principal on which this species|of evidence is admitted 1s that they are)declarations made in extremity, when the party 1s)at the point of death and when every hope of thisworld 1s gone, when every motive to falsehood 1s silenced, and the mind is induced by the most)powerful considerations to speak the truth; a)situation so solemn and so lawful 1s considered by|the law as creating an obligation equal to that)which 1s imposed by a positive oath administered|in a Court of justice. These aspects have been|eloquently stated by Lyre LCR in Rk. Vv.Wood Cock (1989) I Leach 500. Shakespearemakes the wounded Melun, finding himself)disbelieved while announcing the intended)treachery of the Dauphin Lewis explain:“Have I met hideous death within my view,Retaining but a quantity of life,|

Which bleeds away even as a form of wax, Resolveth from his figure against the fire?What is the world should make me now deceive, Since [| must lose the use of all deceit?Why should I then be false since it 1s true ~That I must die here and live hence by truth?”(See King John, Act 5, Sect.4)The principle on which dying declare is admitted|In evidence is indicated in legal maxim “nemo|moriturus proesumitur mentir’’ a man will not)meet his maker with a lie 1n his mouth.”

What precaution is to be taken by Court while accepting thedying declaration, their Lordships further held as under:

“Though a dying declaration is entitled to great weight, it 1sworthwhile to note that the accused has no power of cross-examination. Such a power 1s essential for eliciting the truthas an obligation of oath could be. This 1s the reason the Courtalso insists that the dying declaration should be of such anature as to inspire full confidence of the Court in itscorrectness. The Court has to be on guard that the statementof deceased was not as a result of either tutoring, orprompting or a product of imagination. The Court must befurther satisfied that the deceased was jin a fit state of mindafter a clear opportunity to observe and identify the assailant.Once the Court 1s satisfied that the declaration was true and.voluntary, undoubtedly, it can base its conviction without anyfurther corroboration. [It cannot be laid down as an absolutetule of law that the dying declaration cannot form the solebasis of conviction unless it 1s corroborated. The rule.requiring corroboration 1s merely a rule of prudence. ThisCourt has laid down in several judgments the principlesgoverning dying declaration, which could be summed up asunder as indicated in Smt. Paniben v. State ofGujarat (AIR1992 SC 1817 : 1992 (3) All India Criminal LR (S.C.) 260):

18. “(1) ‘There is neither rule of law nor of prudencethat dying declaration cannot be acted upon withoutcorroboration [See Munnu Raja & Anr. v. TheState ofMadhya Pradesh (1976) 2 SCR 764].

(i) It the Court is satisfied that the dyingdeclaration is true and voluntary it can baseconviction on it, without corroboration. [See Stateof Uttar Pradesh v. Ram Sagar Yadav and Os.(AIR 1985 SC 416) and Ramavati Devi v. State ofBihar (AIR 1983 SC 164)

(1) The Court has to scrutinize the dyingdeclaration carefully and must ensure that thedeclaration is not the result of tutoring, promptingor imagination. The deceased had an opportunity toobserve and identity the assailants and was ina fitstate to make the declaration. [See K. RamachandraReddy and Anr. vv. The Public Prosecutor (AIR1976 SC 1994)|

(iv) Where dying declaration is suspicious, itshould not be acted upon without corroborativeevidence. [See Rasheed Beg v. State of MadhyaPradesh (1974 (4) SCC 264)|.

(v) Where the deceased was unconscious andcould never make any dying declaration theevidence with regard to it is to be rejected. [SeeKaka Singh _ v. State of M.P. (AIR 1982 SCL021)\

(v1) A dying declaration which suffers frominfirmity cannot form the basis of conviction. [SeeRam Manorath and Ors. V. State of U.P. (1981(2) SCC 654)|

(vil) Merely because a dying declaration doescontain the details as to the occurrence, it 1s not tobe rejected. [See State of Maharashtra Vv.

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Krishnamurthi Laxmipati Naidu (AIR 1981 SC617)|

(vill) Equally, merely because it 1s a brief statement,it 1s not to be discarded. On the contrary, theshortness of the statement itself guarantees truth.[See Surajdeo Oza and Ors. V. State of Bihar(AIR 1979 SC 1505)].

(1x) Normally the Court in order to satisfy whetherdeceased was in a fit mental condition to make thedying declaration look up to the medical opinion.But where the eye-witness said that the deceasedwas in a fit and conscious state to make the dyingdeclaration, the medical opinion cannot prevail.[See Nanahau Ram and Anr. v. State ofMadhyaPradesh (AIR 1988 SC 9/2).

(x) Where the prosecution version differs fromthe version as given in the dying declaration, thesaid declaration cannot be acted upon. [See State ofU.P. v. Madan Mohan and Ors. (AIR 1989 SC)L519)|.

(x1) Where there are more than one statement inthe nature of dying declaration, one first in point oftime must be preferred. Of course, if the plurality ofdying declaration could be held to be trustworthyand reliable, it has to be accepted. [See MohanlalGangaram Gehani v. State ofMaharashtra (AIRL982 SC &39)|.”

We would now appreciate the acceptability of the dyingdeclaration made by Bimla Devi following the aforesaid guidelinesand enter into detailed discussion while considering the argumentsadvanced by Mr. Pant.

20. One very material aspect which cannot be lost sight of, 1s"that it cannot be a case of tutoring from the outer source at all, as.no one was known to the either side. The deceased wasa stranger|to the policemen or even to the doctor and so was the position ofthe accused. She was noticed just incidentally lying near the bus|stand and then taken to the Hospital at Kathua for treatment. So anattempt was there to save her and during her treatment, she utteredfew facts to the police official in presence of a doctor (Dr.Varinder Kumar) of Kathua Hospital. Whatever she could say infew words before being removed to Jammu Hospital now has takenthe shape of a dying declaration. She, however, could not reachJammu Hospital and died on the way. Although this fact by itselfcan be said to be sufficient to say that the dying declaration ofBimla Devi does not suffer from any infirmity, and can be the solebasis of conviction of the accused, yet we are rescanning it fromthe angle of certain infirmities pointed out by Mr. Pant.

No doubt, it is not recorded by a Magistrate as stated byMr. Pant, but it 1s not essential that a dying declaration should bemade only before a Magistrate. Section 32 of the Evidence Actnowhere states that the dying declaration must be recorded 1n thepresence of the Magistrate. In Dayal Singh’s case (supra), it hasbeen observed that Section 32 of Evidence Act nowhere states that|the dying declaration must be recorded in the presence of aMagistrate and the dying declaration recorded by a police officer in SAG

the presence of the doctor, who had given an opinion that thedeceased was 1n a fit state of mind to make the statement, was heldto be credible and reliable, sufficient to establish the guilt of the)accused. In the present case, the statement is recorded inGovernment Hospital, Kathua, by Shiv Kumar, ASI, (PW-4) 1n the)presence of Dr. Varinder Kumar, after she was declared fit to makestatement. The record reveals that statement of the deceased was|recorded within two/three hours after she was noticed at bus stand|Lakhanpur. Thereafter, the victim was sent to Jammu Hospital forfurther treatment. In this short span of time, services of aMagistrate could not be requisitioned. Admitted position 1s that thedeceased did not survive even for a day and rather died while shewas being carried to Jammu Hospital. So, it 1s a case, in whichpolice had possibly no time to call for the Magistrate at all forrecording the statement and the moment ASI Shiv Kumar reachedthe Hospital, he contacted Dr. Varinder Kumar and after taking hisopinion, recorded her statement. It was duly attested by Dr.Varinder Kumar also. |

Mr. Pant has made an attempt to make the dyingdeclaration doubtful on the ground that Dr. Vijay Bali, who hadinitially attended to the patient and had prepared the Medico-LegalReport, was the best person to tell us about the fitness of thepatient. But, in our view, it 1s a futile attempt for the reasons thataforesaid Dr. Varinder Kumar is the person, who was present in

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the Hospital when ASI Shiv Kumar reached there, as it 1s clearfrom his statement or even from the original dying declarationavailable on the trial Court record. Dr. Varinder Kumar has provedhis certificate, which is exhibited as EXPW16-VK. No doubt, in)his cross-examination, he stated that he had not recorded in so)many words that the statement was given in his presence, but hemade this fact very clear saying that he would attest the statementonly 1f 1t 1s made in his presence, and would not attest any otherstatement. From this, it 1s now crystal clear that the dyingdeclaration of Bimla Devi was recorded in the presence of Dr.Varinder Kumar after she was found to be fit to make a statement.We find no reason to doubt his evidence. Argument of Mr. Pantthat when the deceased was found at the bus stand, she was in anunconscious condition and, therefore, her condition would havedeteriorated instead of improving and, as such, she could not makethe statement, falls on the ground in the light of aforesaid factualposition.

Another infirmity as pointed by Mr. Pant 1s that if the poison 1singested about 12 hours prior to the death, the patient would go incoma, resultantly, the breathing would be slow and because of mal-functioning of brain, it would not be possible to make a statement,would again be of no relevance as each case depends upon its ownfacts. Here in the case in hand, nobody is sure as to how much wasthe quantity of poison mixed with the vegetable, which was taken 2 3)

by the deceased. Mr. Pant made an attempt to take advantage fromthe evidence of Dr. L.D. Bhagat, who had conducted the autopsyon the dead body of the deceased, where in his cross-examination|he has stated that if the poison 1s ingested since 12 hours then the)patient may be in coma, blood pressure will fall, pulse rate willfall, breathing will be slow. If the patient 1s not in come, the speechwill be slurred and the brain functioning will be depressed due tolack of oxygen supply to the brain. Whatever is stated by Dr.Bhagat cannot take us to drawa positive conclusion that at the timeof recording of the statement of the deceased 1n this case, she wasnot at all in a position to even utter a word. After all, there 1sevidence before us of a doctor, who was absolutely unconcernedwith the success or failure of the prosecution case, and has statedcategorically that the patient was fit to make the statement and weare not going to discard it. We are also conscious of the fact thatthe cases of consumption of aluminium phosphide are generallyaccidental or suicidal and the cases of homicidal death in such typeof situation are very rare, but it cannot be said that there 1s nopossibility of homicidal death in such type of a situation. Itdepends upon the other attending factors also. In the case in hand,all the attending factors are staring at the appellant andspeak volumes of the fact that the few words, 1n fact, vomited|

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out by Bimla Devi (since deceased) are true to the core. Therefore,arguments of Mr. Pant on this aspect are also repelled.

Another attempt made by Mr. Pant that some interpolationhas been done or that it has not been recorded 1n accordance with|the provisions of Rule 609 of the Police Manual (J&K), whilerecording the dying declaration by the Investigating Officer, alsomerits rejection for the reason that simply the dying declaration hasnot been recorded strictly in accordance with the Police Rules, itcannot be said that it is not the true dying declaration. On theaspect of interpolation, 1f any, we have very minutely and carefullyperused the original dying declaration from the trial Court recordsand find that there is no interpolation in it. The deceased utteredthat after she was given the poison in the vegetable, she was turnedout. Then she wanted to express that her husband used to harassher, so that she leaves the house herself of dies. In vernacular(Urdu), it is said “Zaki Muzra Tang Aakar Ghar Se Chali Jaun YaMar Jaun”’ Thereafter it 1s written that “Yeh Ilam Nahi, Yahan|Kaise Pahunchi Hoon”. No doubt, the words “* Mar Jaun’’ 1s littlbit out of space, but it cannot be said that it was insertedsubsequently by the Investigating Officer. This word, in our view,has no effect and from this 1t cannot be said that the deceased, 1nfact, had committed suicide, as argued by Mr. Pant. Dyingdeclaration in the present case 1s in few words, which does notcontain all details and if one reads it very carefully, it 1s not in

sequence and is true reproduction of facts. It is a very briefstatement, the shortness of which itself is the guarantee of thetruth. We can, therefore, comfortably say that the perusal of the)dying declaration reflects that ASI Shiv Kumar had recorded it in)the manner it was coming out of the mouth of the deceased without|adding even a word from his side. In other words, it 1s 1n its purest.form and without any tinge of tutoring. —

Conclusion

The other infirmities pointed out by Mr. Pant with regardto the place of administering the poison to the deceased on theprevious night and his attempt to create doubt to the fact as to howShe had reached Lakhanpur in the wee hours on 7[th]of September,2003 or even with regard to the start of the investigation at PoliceStation Basohli are neither here nor there being insignificantaspects, resultantly merit outright rejection on the premise that weare believing the dying declaration of Bimla Devi as it 1s.

As a sequel to the aforesaid discussion, it can safely beconcluded that there is no material to show that the dyingdeclaration was product of imagination, tutoring or prompting. Onthe contrary, it can be said that it has been made by the deceasedvoluntarily and is trustworthy to rely upon for the purposes ofproving the charge against the accused. ©

Resultantly, the instant appeal is dismissed and theconviction of the accused under Section 302 RPC, as alreadyrecorded by the trial Court, 1s hereby upheld. The appellant is stated to be in custody and shall serve the remainder of hissubstantive sentence. |

Confirmation Reference (Reference No.01/2006) sent by the learned trial Court under Section 374 Cr.PC is acceptedaccordingly.

(Virender Singh) (Nirmal Singh)JudgeJudge JAMMU|

November 16, 2007)

T.Arora, PS