GULZARI LAL Vs. STATE OF HARYANA

Tags Murder Conviction

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 92 of 2016, Judgment Date: Feb 02, 2016

|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.

Leave granted.

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 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.

Brief facts of the case are stated hereunder to appreciate the rival legal
contentions urged on behalf of the parties:-

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.

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, 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.

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).

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 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.

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.

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.

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 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.

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.

On 20.5.2012 after re-appreciation of evidence on record, the High Court
observed in its order that the 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 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.

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.

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 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.

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
Maharashtra[1], 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.”

Further reliance has been placed on the judgement of this Court in Waikhom
Yaima Singh v. State of Manipur[2], wherein it was held as under:

“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 Haryana[3], 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
Nadu[4], 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. 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…”

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 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.

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.

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 and the witnesses. Further, reliance was
placed on the case of Ram Avtar Rai & Ors. v. State Of Uttar Pradesh[5],
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... "

We find no infirmities with the statements made by the deceased and
recorded by the Head Constable 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 Maharashtra[6], 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. State of Bihar[7], 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.

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).

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

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)
-----------------------
[1] [2] AIR 1962 SC 130
[3] [4] 2011 (13) SCC 125
[5] [6] (2010) 11 SCC 423
[7] [8] (2006) 3 SCC 161
[9] [10] (1985) 2 SCC 61
[11] [12] (2002) 6 SCC 710
[13] [14] (1999)2SCC126

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