SOHAN LAL @ SOHAN SINGH AND ORS.versusSTATE OF PUNJAB

A                SOHAN LAL @ SOHAN SINGH AND ORS.                            .·.:.._:_..
                                 v.
                         STA TE OF PU_NJAB

                              OCTOBER 14, 2003
B
           {K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

         Penal Code, 1860: Sections 302 and 109.

C         Murder-Married woman died due to extensive burn injuries within
    seven years of marriage-Husband charge-sheeted for dowry death under
    S. 304-B but not under S. 302 or for abetment ofmurder under S. 109--Trial             t=
    court convicted husband under S.302 rlw S. 109-High Court upheld
    conviction-Correctness of-Held: Failure to frame a charge under S. 109
    had certa~nly prejudiced the accused-Conviction set aside.
D
         Evidence Act, 1872 :

          Section 32-Dying declaration-Conviction based upon-Married
    woman died of extensive burn injuries within seven years of marriage~
E   Deceased made dying declaration before Executive Magistrate-·Trial .
    court relying on the dying declarations convicted the accused-Correctness
    of-Held: There is no circumstance to show that the Executive Magistrate
    had any motive to make out a false case against the accused-Hence, it
    is safe to convict the accused on the basis of the dying declaration.

F      According to the prosecution, a married woman died d11le to
  extensive burn injuries within seven years of marriage. It was alleged
  that the deceased was set on fire by her husband-appellant No. 1,
  mother-in-law-appellant No. 2 and sister-in-law-appellant no. 3 in
  connivance with one another. The deceased before her death had made
G a dying declaration before the Executive Magistrate, PW-6. The
  deceased was allegedly being harassed by the appellants-accused to
  extract dowry from her parents.

         Appellants Nos. 2 and 3 were charge-sheeted under Section 302
H of the Penal Code, 1860. However, appellant No. 1 was charge-sheeted
                                       676
                             SOHAN LAL@ SOHAN SINGH v. STATE                         677

              for dowry death under Section 304-B IPC but not under Section 302 A
              IPC or for abetment of murder under Section 109 IPC. The trial court
              convicted appellants Nos. 2 and 3 under Section 302 IPC and appellant
              No. 1 under section 302 read with Section 109 IPC and they were
              sentenced to undergo imprisonment for life. Hence the appeal.
                                                                                           B
                   On behalf of the appellants, it was contended that failure to frame
              a charge under Section 109 IPC against appellant No. 1 had prejudiced
              him in the trial court; the District Magistrate had acted with great
              haste in deputing PW-6 to record the dying declaration; and that it was
              unsafe to convict the accused on such a dying declaration.
I;·-.-. ...
                                                                                           c
                   Allowing the appeal in part, the Court

                    HELD : 1. Failure to frame a charge with regard to the substantive
              offence under Section 109 of the Penal Code has certainly prejudiced the
              accused in the trial. The accused-appellant No. 1 was called upon to face D
              trial only for the charge under Section 304-B IPC. Neither a charge
              under Section 302 IPC, nor under Section 109 IPC was levelled against
              him in the Charge Sheet. In the absence ofa charge being framed against
              appellant No. 1 under Section 302 or 109 IPC, it would certainly cause
              prejudice to him, if he were convicted under either of these offences at E
              the end of the trial. It was not permissible for the trial court to convict the
              appellant No. 1 for the offence under Section 302 read with Section 109
              IPC. His conviction under Section 302 read with section 109 IPC is,
              therefore, illegal and is liable to be set aside. The High Court erre1' in
              upholding the conviction of appellant No.I under Section 302 read with F
              Section 109 IPC and dismissing his appeal. [681-G-H, 682-A-B]

                  Joseph Kurian Philip Jose v. State of Kera/a, (1994) 6 SCC 535 and
              Wakil Yadav v. State of Bihar, [2000) 10 SCC 500, relied on.

                   2. There is no circumstance brought on record to suspect the G
              bonafides of the Executive Magistrate, PW-6; nothing has been elicited
              to show that he was interested in fabricating a case against the accused
              or that he had any motive to make out a false case against the accused.
              Hence, it is not possible to accept the contention of appellant Nos. 2 and
              3 that it is unsafe to convict them on the dying declaration. \689-A-B\      H
    678                SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
A         Laxman v. State of Maharashtra, (2002] 6 SCC 710, followed.

          Paparainbaka Rosamma v. State of A.P., (1999] 7 SCC 695, Kofi
    Chunilal Savji v. State of Gujarat, (1999] 9 SCC 562 and Ravi Chander
    v. State of Punjab, (1998] 9 SCC303, 'relied on.
B        3. As to how much time the District Magistrate should take in
    responding to a request for recording a dying declaration; it is n:ot a
    matter of law· or rigidity, but one of convenience depending on the
    circumstances and the urgency with which· he views it. {(689-D)

c       CRIMINAL APPELLATE
                    I
                           JURISDICTION : Criminal Appeal No.
    280 of 2003.

        From the.Judgment and Order dated 13.9.2002 of.the Punjab and
    Haryana High Court in Crl. A. No. 553-DB of 1999.
D         pr.
            J.N: Dubey, Anµrag .Dubey, Mrs. Upasana Dubey, Ms. K.B.
    Upadhyay, Ms. Sneh Mishra. and S.R. Setia for the Appellants.

          Y.P. Dhingra, Bimal Roy Jad and Ms. Sunita Panditfor the Respondent.

E         The Judgment of the. Court was delivered by

          SRIKRISHNA, J. : This appeal by ·special leave is directed agains~
    the judgment of the Punjab & Haryana High Court dismissing the appeals .
    of the present appellants against convictions, under Section 302 read with
F   Section 109 IPC in respect of appellant No. 1, and under.Section 302 IPC
    in respect of appellant Nos. 2 and 3.

        On 1.4.1996 an F.l.R. was lodged at the Sadar Police Station cm the
  basis of information given by one Bansi Ram (Taya i.e. Uncle) at 10.40
  p.m. on that night with· regard to the unnatural death, in suspicious
G circumstances, of one Kamlesh Rani. The. gist of the F.LR. was that
  Kamlesh Rani was being harassed by her husband-Sohan Lal @ Sohan
  Singh (first appellant), mother-in-law Harbans Kaur (second appellant) and
  sister-in-law Kanchan (third appellant), who ill treated her to extract dowry
  from her parents. The said Kamlesh Rani was also thrown out of the house
H of her'in-laws and it was only- after intervention of interested partfos that
      SOHAN LAL@ SOHAN SINGH v. STATE [SRIKRISHNA, J.]                679

she returned to the house of the in-laws on 31.3 .1996. On 1.4.1996, Bansi A
Ram received information that Kamlesh Rani had been admitted in G.N.D.
Hospital, New Emergency, Amritsar with extensive burn injuries. He
lodged a complaint that Kamlesh Rani had been set on fire by her husband,
Sohari Lal, mother-in-law, Harbans Kaur, father-in-Jaw, Sarwan Singh, and
sister-in-law, Kanchan after pouring kerosene oil on her, after conniving B
with one another.

      The police started investigation in the matter, seized certain
incriminating materials and also recorded statements of witnesses. As a
result of the investigation, the police filed a Charge Sheet against the three
appellants and Sarwan Singh. It was alleged against Harbans Kaur and C
Kanchan that at about 4.00 p.m. on 1.4.1996 they murdered Kamlesh Rani
and committed an offence punishable under Section 302 of the IPC. In
the alternative, since Kamlesh Rani had died on account of bum injuries
otherwise than under normal circumstances, within seven years of her
marriage with Sohan Lal @ Sohan Singh, Sohan Lal (husband), Sarwan D
Singh (father-in-law), Harbans Kaur (mother-in-law) and Kanchan (sister-
in-law) of Kamlesh Rani were charged with subjecting Kamlesh Rani to
cruelty and harassment on account of demand of dowry and causing her
dowry death, an offence punishable under Section 3048 of the IPC. The
accused denied the charges and claimed to be tried. The prosecution E
examined' Dr. Gurmanjit Rai, Lecturer, Forensic Medicines, Medical
College, Amritsar (PW 1), Bansi Ram (PW 2), Usha Rani (PW 3), Gopi
Ram (PW 4), Rishi Ram (PW 5), Lakhbir Singh, Naib Tehsildar, Ratala
(PW 6), Jit Singh (PW 7), Surinder Singh HC (PW 8), A.SJ Joginder
Singh, P.S. Civil Lines, Amritsar (PW 9), Dr. Sat Pal, Surgical Specialist,
C.S.C. Saroya, Distt. Nawan Shehar (PW 10) and A.S.I. Satnam Singh (PW F
 11) and produced certain material objects and documents to prove the
charges against the accused. The trial court held that Kamlesh Rani had
died as she was murdered by second appellant Harbans Kaur and third
appellant Kanchan abetted by first appellant Sohan Lal @ Sohan Singh.
The trial court also recorded a finding that, as far as dowry death was G
concerned, there was no definite statement of any witness that any of the
accused had ever demanded dowry at the time of the marriage or even
thereafter. Upon appreciation of the evidence on record, the trial court held
that the prosecution had failed to prove its case against accused Sarwan
 Singh beyond a shadow of doubt. Sarwan Singh was, therefore, acquitted H
    680                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A of all charges against him, but Harbans Kaur and Kanchan were held guilty
    of burning Kamlesh Rani to death and Sohan Lal@ Sohan Singh was held
    guilty of abetting the same. Harbans Kaur and Kanchan were thus held
    guilty of an offence punishable under Section 302 of the IPC, while Sohan
    Lal @ Sohan Singh was held guilty of an offence punishable under section
B   302 read with Section 109 IPC. All three accused were sentenced to
    imprisonment for life and fi'1e of Rs. 1,000 each and, in default, a further
    imprisonment of two· months. Being aggrieved by the convictions, the
    three appellants, Sohan Lal @ Sohan Singh, Harbans Kaur and Kanchan
    are in appeal.

c        The case of the prosecution rests mostly on two declarations made
    by Kamlesh Rani, one on 2.4.1996 to the Naib Tehsildar-cum-Executive
    Magistrate, Lakhbir Singh {PW 6) at 3.15 p.m. and the second stati~ment
    made under Section 161 of the Cr. P.C., recorded by Satnam Singh, A.SJ.
    (PW 11) at 7 .10 p.m. on 7.4.1996. It also rests on the oral testimony of
D   the witnesses for corroboration of the statements made in the said
    declarations.

          Appellant No. 1, accused Sohan Lal husband of Kamlesh Rani,
    according to the Charge Sheet, had been charged only with the offence of
E   dowry death, punishable under Section 3048 of the IPC. There was no
    charge under Section 302 or forabetment of murder under Section 109 of
    the IPC. Counsel for the appellants contended that Section 109 of the IPC,
    which deals with abetment of a substantive offence, is itself a substantive
    offence for which punishment is prescribed under the section. Learned
    counsel contended that unless an accused has been charged for an. offence
F   under Section 109 IPC and tried, it was not open to the trial court to sustain
    the charge under Section 302 with the help of Section 109 IPC for which
    the accused was never tried. Learned counsel relied on the judgments of
    this Court in Joseph Kurian Philip Jose v. State of Kera/a, [1994] 6 SCC
    535 and Wakil Yadav and Anr. v. State of Bihar, [2000] 10 SCC 500 to
G   buttress his contention.

          Joseph Kurian (supra) holds thus:

             "Section 109 IPC is by itself an offence though punishable in the
H            context of other offences. A-4 suffered a trial for substantive
      SOHAN LAL@ SOHAN SINGH v. STATE [SRIKRISHNA, J.]                 681

         offences·under the Indian Penal Code and Abkari Act. When his A
         direct involvement in these crimes could not be established, it is
         difficult to uphold the view of the High Court that he <:ould ·
       · lopsidedly be taken to have answered the charge of abetment and
         convicted on ·that basis. There would, as is plain, be serious
         miscardage of justice to the accused in causing great prejudice to B
         his defence. The roles of the perpetrator and abettor of the crime
         are distinct, standing apart from each other."

      This view was reiterated in the subsequent judgment in Wakil Yadav
(supra). In Wakil Yadav (supra) the appellant was originally charged with C
several other accused under Section 302 with the aid of Section l 09 IPC.
The Court of Sessions convicted all the 7 accused for the offences charged.
The High Court in appeal acquitted 5 persons, convicting one Guru Charan
Yadav substantively for the offence under Section 302 IPC and the
appellant, Wakil Yadav, for the offence under Section 302 read with
Section l 09 IPC. There was no dispute that no charge had been framed D
against the appellant, Wakil Yadav, under Section 109 IPC. This Court
reiterated the law laid down in Joseph Kurian (supra) and held that it was
not open to the High Court to convict the accused, Wakil Yadav, for an
offence under Section 302 with the aid of Section l 09 IPC, as no charge
had been framed against him under Section l 09 IPC, which is itself a E
substantive offence.

      Section 211 of the Code of Criminal Procedure requires that the
 charge against the accused be precisely stated. Sub-section(4) of Section
 211 of the Code of Criminal Procedure specifically requires that the law F
 and section of the law against which the offence is said to have been
 committed shall be mentioned in the charge. The learned counsel for the
.respondent State, relying on Section 464 of the Code of Criminal Procedure,
 urged that failure to specify Section I 09 in Charge Sheet against Sohan
 Lal was a mere irregularity which would not vitiate the trial without proof
 of prejudice to the accused. We cannot agree. The learned counsel for G
 the accused is fully justified in his submission that failure to frame a charge
 with regard to the substantive offence of Section I 09 IPC has certainly .
 prejudiced the accused in the trial court. The accused Sohan Lal @ Sohan
 Singh was called upon to face trial only for the charge under Section 304B
 IPC. Neither a charge under Section 302 IPC nor under Section 109 IPC, H
        682                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
    A  was levelled against him in the Charge Sheet. In the absence of a charge
       being framed against the accused Sohan Lal under S.ection 302 or I 09 IPC,
       it would certainly cause prejudiee to him, if he is convicted under either
      ·for these offences at the end of the trial. In ou~ view, it was not permissible
       for the trial court to convict the first accused Sohan Lal for the offence
    B under Section 302 read with Section I 09 IPC. His conviction under
       Section 302 read with Section I 09 IPC is, therefore, .illegal and is liable
       to be set aside. The High Court erred in upholding the conviction of Sohan
       Lal @ Sohan Singh under Section 302 read with Section I 09 of the IPC
       and dismissing his appeal.

    c         The learned counsel for the appellants then strongly assailed the
        convictions of Harbans Kaur (mother-in-law) and Kanchan (sister-in--law)
        under Section 302 IPC. He contended that the version given in the First
        lnfonnation Report (FIR) lodged at the instance ofBansi Ram (PW 2) and
        the version given by Bansi Ram in his evidence before the trial court are
    D . irreconcilable and suggest that Bansi Ram could never have had the
        infonnation with which he rushed to the Police. In the FIR, Bansi Ram
        says: "After making my niece Kamlesh to understand the things, we sent
        her with her parent's in-law on31.3.1996. Today on 1.4.1996, we received
        information that Kamlesh was admitted to G.N.D. Hospital, New Emergency,
    E Amritsar in burnt condition. I accompanied by Usha Rani W/o Hira Lal
        (brother's daughter-in-law) reached G.N.D. Hospital, New Emergency,
        Amritsar. My niece Kamlesh told us that on that day at about 4.00 p.m.
        she was present in her house and that her husband Sohan Lal, Banso,
        mother-in-law, Sarwan Singh, father-in-law and Kanchan her sister· in-law
    F after conniving with one another had set her on fire, after pouring kerosene
        oil on her." In his testimony before the court, Bansi Ram stated that on
         1.4.1996,' Gurbux Singh, another son ofSarwan Singh, came to their house
        at 8.oo\ p.m. in the night and told that Kamlesh was admitted in G.N.D.
        Hospital, Amritsar in burnt condition; He then said, " I accompanied by
        Usha Rani and another person went to the said hospital. Kamlesh was in
    G excessively burnt condition. She told us that her husband's sister Kanchan
        had tied her legs and Sohan Singh accused had set her on fire after pouring
        kerosene oil on her body." A number of improvements, variations and
-       inconsistencies between the FIR statement made by Bansi Ram            (PW
        2) ·and his evidence before the court were highlighted by the learned
    H counsel·for the accused. He also contended that it was impossible for
      SO HAN LAL @ SO HAN SINGH v. STATE [SRIKRISHNA, J.]            683

Kamlesh Rani to have spoken to Bansi Ram and given him infonnation A
as to what transpired at the time of the incident. Strong reliance was placed
by the learned counsel on the bed-head ticket (Ex. PQ) which showed that
on 1.4.1996 Kamlesh Rani was admitted to the hospital at 6.30 p.m. with
alleged history of burns, that she was prescribed several medicines which
included a strong sedative and pain killer like Calmpose and Pathidine B
injections. There is an endorsement at 8.40 p.m. in the bed-head ticket (Ex.
PQ): "seriousness of the Pt. explained to the relatives." There is also an
endorsement at 9.10 p.m.: "Pt. declared unfit for statement due to
sedation."

      The learned counsel urged that according to the evidence of Bansi C
Ram, he received infonnation about the bum injuries and admission in the
hospital ofKamlesh Rani ~t about 8.00 p.m.; he immediately went to Usha
Rani and accompanied by her and others came to the hospital. By that time,
injections Calmpose, Furtulin and Pathidine had already been administered
at 7 .20 p.m., as seen from the LO. Chart dated 1.4.1996. It would be D
improbable that the patient would be in a position to talk to anyone, if these
strong sedatives had been administered at 7.20 p.m .. There appears to be
substance in this contention. At 9.10 p.m. the doctor had declared the
patient unfit for statement due to sedation. The exact time at which Bansi
Ram reached the hospital is not available from the evidence on the record. E
The evidence of Usha Rani (PW 3) suggests that she had received
information about Kamlesh Rani receiving bum injuries and her admission
to the hospital at 8.30 p.m. on 1.4.1996. According to PW 3, she found
that, "she was in a se.rious condition, she was speechless and was not able
to speak." It is true that Usha Rani was declared as a hostile witness and F
 cross-examined. Nonetheless, it is open to the accused to rely on the
 testimony of Usha Rani for the purpose of improbabilising the evidence
 of Bansi Ram, in so far as his talk with Kamlesh Rani on the night of
 1.4.1996 is concerned. In our view, the contention of the learned counsel
for the accused is justified and needs to be upheld. A cumulative
 assessment of the evidence of Bansi Ram (PW 2), Usha Rani (PW 3) and G
 the medical chart (Ex. PQ) improbabilises that Bansi Ram could have had
 a talk with Kamlesh Rani in the evening of 1.4.1996, before he went to
 the Police Station and had the FIR recorded.

      The learned counsel thereafter contended that ifBansi Ram's testimony H
         684                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
     A -.is not believable, then the whole of the FIR becomes doubtful and the case
         against the accused necessarily collapses. We cannot accept this; It may
         be probable that Bansi Ram might have given information to the police
         which was exaggerated and added things which, probably, he did not learn
         from Kamlesh Rani on 1.4.1996. It is possible that seeing Kamlesh Rani
     B ..in the hospital, after suffering extensive bums to the extent of 80 per cent,
         Bansi Ram might have suspected the in-laws of Kamlesh Rani as having
         murdered her. The First Information Report is only a report about the
         information as to the commission of an offence; it is not substantive
         evidence, as the police has yet to investigate the offence. If Bansi Ram's
         was the only testimony in support of the prosecution, then perhaps the
     C counsel's was ~ight. We find, however, that the prosecution strongly.relied
         on two declarations, one made to Naib Tehsildar, Lakhbir Singh (PW 6)
         on 2.4.1996 as well as the statement made by Kamlesh Rani under Section
.,       161 of the Cr. P.C. recorded on 7.4.1986 by Satnam Singh, A.S.I., both
         of which can be treated as dying declarations.
     D
               The learned counsel for the accused strongly assailed the two dying
         declarations and contended that the two dying declarations are mutually ·
         contradictory and the evidence of the other witnesses do not probabilise
         their truth. It was contended that the overall circumstances make it unsafe
     E · to convict the accused merely on the said dying declarations. We need
         to consider these arguments in detail and assess their merit.

             The first dying declaration (Ex. PN) was recorded on 2.4..1996, on
       the. basis of a complaint (Ex. PL) made by Bansi Ram to the Deputy
     F Commissioner, Amritsar alleging that the police were not cooperating in
       recording the statement by Kamlesh Rani, who had been admitted in the
       Emergency Ward. A request was made that some officer may be deputed
       for recording her statement and legal action be taken. · Lakhbir Singh, Naik
       Tehsildar-cum-Executive Magistrate addressed a letter dated 2.4.1996 to
       the Doctor on duty in the hospital requesting the doctort<;> issue.,a certificate
     G as to whether Smt. Kamlesh Rani was fit to give a dying declaration.
       According to the evidence of Lakhbir Singh (P~ 6), Bansi Ram made an
       application addressed to the District Magistrate, Amritsar, on which the
       District Magistrate made an endorsement at 2.05 p.m. on 2.4.1996 directing
       the Tehsildar to record her statement as an emergency. The document and
     H the endorsement have been proved by PW 6. PW 6, thereafter, went to
      SOHAN LAL@ SOHAN SINGH v. STATE [SRIKRISHNA, J.]                 685

the hospital and addressed the letter (Ex. PM) to the Doctor on duty A
requesting him to certify as to whether Smt. Kamlesh Rani was fit to give
dying declaration. The Doctor on duty (Dr. Vikram Dua, Junior Resident,
Surgical Unit-4, GND Hospital, Amritsar) made an e\ldorsement on the
application (Ex. PM) to the effect: "Pt. is fit for statemenr." His endorsement
(Ex. PM/I) was made at 3.00 p.m .. Thereafter, PW 6 went to Kamlesh B
Rani, disclosed his identity to her, asked the attendants to go out and, after
ascertaining that she was fit to make the statement voluntarily, recorded
her statement. The dying declaration (Ex. PN) was recorded without any
omission or addition and as narrated by Kamlesh Rani at 3.15 p.m .. An
endorsement on Exhibit PN I was made by PW 6 stating, "The above given C
dying declaration of Smt. Kamlesh Rani wife of Sh. Sohan Lal, was
recorded by the undersigned on 2.4.1996 at 3.15 p.m. in the Emergency
Ward of Guru Nanak Dev Hospital, Amritsar." He, thereafter, sent the
original dying declaration to the District .Magistrate, who with his
endorsement upon Exhibit PN/l directed that the same to be sent to the
S.S.P., Taran Taran under sealed cover. This dying declaration (Ex. PN) D
translated in English reads as under:

               "I, Kamlesh Rani wife of Sohan Lal resident of I-a, Jajj
         Nagarnear V. V. Modem School, Amritsar. I was burnt on pouripg
         kerosene oil by my mother-in-law Harbans Kaur and I am E
         conscious although my body was completely burnt but I understand
         all the things. Before I burnt I took tea mixed something in it.
         After that my mother-in-law put kerosene oil on me and my sister-
         in-law named Kanchan lit the fire. My husband harasses me and
         demanded for bringing mohey from her parents if she resides F
         with him. Heard and admitting the correct.



                                                RTI of
                                            Sd Kamlesh Rani
                                             W/o Sohan Lal                   G
                                                2.4.96"

     The learned counsel for the accused criticised the dying declaration
(Ex. PN) as not legally sustainable on several grounds. First, it is
contended that the certificate of fitness is not endorsed on the dying H
     686'                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A. declaration itself but on a separate paper i.e. on Exhibit PM/I. Secondly,
    it is contended that the certificate of fitness alleged to have been given by
    Dr. Vikram Dua, Junior Resident, Surgical Unit-4, G.N.D. Hospital,
    Amritsar·was not proved as the said Dr. Dua was not examined at all. He
    also criticised the evidence of Dr. Sat Pal, Surgical Specialist, C.H.C.
B · Saroya (PW -10), who produced the bed-head ticket and identified the
    writing and signature of Dr. Vikram Dua with his endorsement on the
    application. Though this witness was not even cross examined, the learned
    counsel contended that the certificate of Dr. Dua was not proved .in
    accordance with law. He also criticised the evidence of PW 6 by
  . contending that no material was produced by PW 6 to show that he was
C really appointed as Naik Tehsildar-cum-Executive Magistrate. PW 6 also
    denied having made a statement to the Police during investigatiorn and that
    he had not brought the Gazette Notification whereby he had empowered
    to discharge the· function of an °Executive Magistrate.

D          Having read the evidence of PW 6, in the light of the law laid down
      by a Constitution Bench of this Court in Laxman v. State of Maharashtra,
      [2002] 6 SCC 710, and on assessment of the dying declaration, Exhibit PN,
    . we are afraid that none of the,contentions can prevail. The Constitution
      Bench in Laxman (supra), while resolving the· conflict of opinion as to
1E.   the manner of testing the credibility.of a 'dying declaration', overruled the
      view taken in Paparambaka Rosamma v. State ofA.P., [1999] 7 SCC 695
      and approved the correctness of the view taken in Kofi Chunilal Savji and
      Anr. v. State a/Gujarat, [1999] 9 SCC 562. According to the Constitution
      Bench:

·F            "The juristic theory regarding acceptability of a dying declaration
              is that such .declaration is made in extremity, when the party is
              at the point of death and when every hope of this world is gone,
              when every motive to falsehood is silenced, and the man is
              induced by the most powerful consideration to speak only the
G             truth. Notwithstanding the same, great caution must be exercised
              in considering the weight to be given to this species of evidence
              on account of the existence of many circumstances which may
              affecttheir truth. The situation in which a man is on the deathbed
             ·is so solemn and serene, is the reason in law to accept the veracity
H.            of his statement. It is for this reason the requirements ·of oath and
SOHAN LAL@ SOHAN SINGH v. STATE [SRIKRISHNA, J.]               687

  cross-examination are dispensed with. Since the accused has no A
  power of cross-examination, the courts insist that the dying
  declaration should be of such a nature as to inspire full confidence
  of the court in its truthfulness and correctness. The court,
  however, has always to be on guard to see that the statement of
  the deceased was not as a result of either tutoring or prompting B
  or a product of imagination. The court also must further decide
  that the deceased was in a fit state of mind and had the opportunity
  to. observe and identify the assailant. Normally, therefore, the
  court in order to satisfy whether the deceased was in a fit mental
  condition to make the dying declaration looks up to the medical C
  opinion. But where the eyewitnesses state that the deceased was
  in a fit and conscious state to make the declaration, the medical
  opinion will not prevail, nor can it be said that since there is no
  certification of the doctor as to the fitness of the mind of the
  declarant, the dying declaration is not acceptable. A dying
   declaration can be oral or in writing and any adequate method of D
   communication whether by words or by signs or otherwise will
  suffice provided the indication is positive and definite. In most
   cases, however, such statements are made orally before death
  ensues and is reduced to writing by someone like a Magistrate or
  a doctor or a police officer. When it is recorded, no oath is E
   necessary nor is the presence of a Magistrate absolutely necessary,
   although to assure authenticity it is usual to call a Magistrate, if
   available for recording the statement of a man about to die. There
   is no requirement of law that a dying declaration must necessarily
   be made to a Magistrate and when such statement is recorded by F
   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 G
   is proved by the testimony of the Magistrate that the declarant was
   flt 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 H
    688                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A            voluntary and truthful nature of the declaration can be established
             otherwise."

         The view taken in Paparambaka Rosamma (supra) that in the absence
    of a medical certification as to the fitness of state of mind, it would be
B   risky to accept a dying declaration on the subjective satisfaction of the
    Magistrate was overruled as having been too broadly stated and not being
    the correct enunciation of law. The Constitution Bench said :

             " .. .It is indeed a hypertechnical view that the certification of the
             doctor was to the effect that the patient is conscious and there was
C            no certification that the patient was in a fit state of mind espe:cially
             when the Magistrate categorically' stated in his evidence indicating
             the questions he had put to the patient and from the answers
             elicited was satisfied that the patient was in a fit state of mind
             whereafter he recorded the dying declaration. Therefore, the
D            judgment of this Court in Paparambaka Rosamma v. State ofA.P.
             must be held to be not correctly decided and we affirm the law
             laid down by this Court in Kofi Chunilal Savji v. State of
             Gujarat."

          In Kofi Chunilal Savji (supra) a Bench of three learned Judges
E rejected the contentioi:i that in the absence of a doctor while recording the
    dying declaration, the declaration loses its value and cannot be accepted.
    The Court observed that, " ... the aforesaid requirements are a mere rule
    of prudence and the ultimate test is whether the dying declaration can be
    held to be a truthful one and voluntarily given."
F
        Ravi Chander and Ors. v. State of Punjab, [1998] 9 SCC 303, was
  approved, in which this Court held that for not examining the doctor, the
  dying declaration recorded by the Executive Magistrate and the dying
  declaration orally made need not be doubted. The Court observed that the
G Executive Magistrate is a disinterested witness and is a responsible officer
  as long as there was no material on record to suspect that he had any animus
  against the accused or was in any way interested in fabricating the dying
  declaration, no qu~stion arises to~hecking the genuineness of the dying
  declaration recorded by the Executive Magistrate.

H         In the face of this clear enunciation of law, we are afraid that none
                 SOHAN LAL@ SOHAN SINGH v. STATE [SRIKRISHNA, J.]                 689

           .of the above arguments urged by the learned counsel can be accepted. A
            Upon careful assessment of the evidence tendered by PW 6, Lakhbir Singh,
            Naik Tehsildar, we find no circumstance brought on record to suspect his
            bonajides; nothing has been elicited to show that he was interested in
            fabricating a case against the accused or that he had any motive to make
            out a false case against the accused. Hence, we are unable to accept the B
~           contention of the learned counsel for the accused that it is unsafe to convict
I           the accused on the dying declarations.

                 It was strenuously urged by the learned counsel for the acc_used that
           the testimony of the Naib Tehsildar Lakhbir Singh (PW 6) is unbelievable
           because the District Magistrate appears to have acted with great haste in C
           deputing Lakhbir Singh to record the dying declaration as soon as he was
           approached by Bansi Ram (PW 2). It was also urged that the entries in
           the bed-head ticket suggest that the witness was constantly under
           administration of heavy sedatives which improbabilises the recorlling of
           her eymg declaration by Lakhbir Singh (PW 6). In our view, these are D
           arguments of desperation. As to how much time the District Magistrate
           should take in responding to a request for recording a dying declaration,
           is not a matter of law or rigidity, but one of convenience depending on
           the circu~stances and the urgency with which he views it.
                                                                                        E
    ....
    '             The bed-head ticket shows that the last injection of Pathidine and
            other sedative drugs were given at 7.20 p.m. on 1.4.1996. On 2.4.1996,
            no Pathidine injection was given in the morning. On the contrary, there
            is an endorsement in the treatment sheet stating, "Sedation dose of evening
            withheld. Pt. declared fit for statement and the same given in the presence F
            of the Magistrate." It is contended that this entry has not been proved by
            any witness. In our view, this argument is without substance. If the
            accused wanted to rely on this entry, to impeach the credit worthiness of
            Exhibit PN, they were free to examine any witness. Whether this entry
            is held proved or not, it does not detract from the credit worthiness of the
            evidence of Lakhbir Singh (PW 6). We, therefore, think that there is no G
            substance in this contention.

                 We are satisfied that the dying declaration (Ex. PN) was made by the
            deceased Kamlesh Rani and that there is no need to discard the evidence
            of PW 6; that when she made the dying declaration she was in a fit mental H
    690                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A   condition to do so and was fully conscious of what she was saying.
    Irrespective of whether the endorsement of Dr. Dua upon Exhibit PM/I
    has been proved in accordance with law or not, we find no reason to disc:ard
    the dying declaration (Ex. PN).

B         The learned counsel ·asserted that this is a peculiar case in which there
    are five statements which can be characterised as dying declarations and
    each one is inconsis,tent with the others. He, therefore, urged that we
    should disbelieve all of them, give the benefit of doubt to the accused, and
    acquit them.

c       According to the learned counsel for the accused, the circumstances
  under which the deceased Kamlesh Rani died have been narrated differently
  on five different occasions. First, there is the version in the FIR lodged
  by Bansi Ram (PW 2); second, is the version given in the deposition of
  Bansi Ram (PW 2); third, is the dying declaration recorded by Naib
D Tehsildar Lakhbir Singh (PW 6) (Ex. PN); fourth, is the versio:'} .in the
  statement of Kamlesh Rani recorded under Section-161 of the Cr. P;C.
  and fifthly, the version given in the deposition of Jit Singh (PW 7) under
  cross-examination. Learned counsel contended that each one of the
  versions is inconsistent with the others and, therefore, taking an overall
E view, as each one the versions conflicts with the dying declaration (Ex.
  PN), it would be unsafe to rely on the dying declarations to uphold the
  conviction of the appellants. Although, at the first blush, the contention
  of the learned counsel for the appellants seems attractive, upon a ·C:areful
  appraisal it has no substance. We have already analysed the deposition
  of Bansi Ram (PW 2) in the light of the deposition of Usha Rani (PW
F 3). A cumulative reading of the two, together with the medical endorsements
  made on the bed-head ticket of G.N.D. Hospital, clearly ruled out Bansi
  Ram as having received any infonnation from deceased Kamlesh Rani. It
  is true that both in the FIR as well as in the deposition of Bansi Ram
  (PW 2) an exaggerated version had been given. Merely, because Bansi
G Ram takes it upon himself to give an exaggerated and coloured version of
  the circumstances under which Kamlesh Rani died, we do not think that
  it would be proper to reject the dying declaration (Ex. PN) which we have -
  tested on the anvil of the law laid down by the Constitution Bench of this
  Court in Laxman (supra) and found it to have passed. We are, therefore,
H not inclined to accept the contention that the dying declaration (Ex. PN)
       SOHAN LAL@SOHAN SINGH v. STATE"[SRIKRISHNA, J.]                   691

· needs to be rejected because of the FIR of Bansi Ram and the deposition A .
  of Bansi Ram do not tally with it.

        Next, we turn to the evidence of Jit Singh (PW 7) on the basis of
  which the dying declaration (Ex. PN) is impeached. PW 7 was examined
  only to prove the recovery of certain material objects. He was a Pancha, B
  who had signed the Panchanama which showed the recovery of certain
  incriminating articles. His examination-in-chief merely consists of the fact
  that certain articles were recovered in his presence and that he had attested
  the Panchanama, and that his statement had been recorded by the police.
· Surprisingly, in his cross-examination, this witness came out with a new C
  story that he was present at the seen of the occurrence, that Kamlesh Rani
  was lying in the hands of her husband Sohan Lal @ Sohan Singh and she
  had told all of them including Jit Singh that she had committed suicide,
  and that she had committed a blunder, before she was moved to the
  hospital. Rightly, this witness was declared as hostile and suggestions were
  made fo' him that the facts deposed by him had not been narrated in his--D
   statement to the police, that they had been so narrated at the instance of
  the accused and that he had deposed falsely under the cross-examination.
   We have no hesitation in rejecting that part of the testimony of PW 7 which
  appears to have found its way on the record so convenient for the accused.
  If at all there was any truth in his statement that he was present at the time E
  of occurrence and that the deceased Kamlesh Rani had made any statement
  before him, it was !'1e obligation of Jit Singh (PW 7) to have disclosed this
   to the police. Had he done so, he would have been treated as a material
   witness and examined by the police with regard to the so called statement
   made befgre him. The fact that no such disclosure was ever made by him
   to the ,/olice, and his attempt to come out with crucial material facts F
  pertaining to the occurrence, although he was being examined only as a
  witness to the Panchanama, do not lend credence to his testimony. It
   appears to us that Jit Singh (PW 7) must have been won over by the accused
   and made bold to give convenient evidence under cross-examination. We
   are not inclined to accept this very convenient testimony of Jit Singh (PW G
   7) as detracting' from the veracity and weight to be attached to the dying
   declaration (Ex. PN).

      That leaves us with the other statement made by Kamlesh Rani to the
 police under Section 161 of the Cr. P.C. The High Court in its judgment H
    692                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A has. quoted the statement of Kamlesh Rani under Section 161 of the Cr.
    P.C. (Ex. PV), which is as under:

                  "Statement of Kamlesh Rani wife of Sohan Lal resident of
             Gali No. lAj Judge Nagar, Amritsar u/s 161 Cr. P.C.

B                  It is stated that I am resident of above said address on 1.4.96.
             I was burnt by my mother-in-law Harbans Kaur by pouring
             kerosene oil. Due to that my body was burn.t. At this time I am
             conscious. , Before burnt, I took a tea after mixing some poison
             in the tea. Then my mother-in-law put a kerosene oil on me. My
C            sister-in-law named Kanchan lit the fire by match box. Before
             the present occurrence my father-in-law Sarwan Singh, Sohan Lal,
             husband, Harbans Kaur mother-in-law and Kanchan sister-in-law
             stressing me for bringing dowry from my parents. ,On 1.4.19?6
             at the time of occurrence my father-in-law Sarwan Singh and
D            Sohan Lal my husband both were present in the hous~'. · My
             husband usually asked me that I did not like her and he further
             told me that if she remain with him bring more dowry from his
             parents house. I have heard my statement which is correct."

          A comparison of the dying declaration (Ex. PN) recorded by PW 6,
E Naib Tehsildar Lakhbir Singh, and the statement ofKamlesh Rani recorded
    under Section 161 of the Cr. P. C. (Ex. PV) shows that they ta Hy in material
    particulars. There is no conflict or inconsistency between these two.
    statements. The contention of the learned counsel as to the inconsistency
    must, therefore, fail.
F
          Upon careful consideration of the facts and circumstances of the case,
    we are satisfied that we can safely accept the veracity of the dying
    declaration (Ex. PN) made by Kamlesh Rani deceased which is also fully
    corroborated by the other circumstances and not contradicted by her
G   statement recorded under Section 161 of the Cr. P.C .. No material has been
    placed before us to show that the dying declarations were the result of any
    tutoring or coaching. Hence, we are not satisfied that there exist any
    circumstances which compel us to suspect the trustworthiness of the dying
    deClaration.

H         Once we come to the conclusion that the dying declaration is credit
       SOHAN LAL @ SOHAN SINGH v. ST ATE [SRIKRISHNA, J.]              693

worthy, there is no doubt that the accusations against the appellants accused A
Harbans Kaur and accused Kanchan are fully proved. In the circumstances,
we are of the view that both the courts below were justified in relying upon
the dying declaration and convicting the two accused, Harbans Kaur and
Kanchan. We see no reason to take a different view in the matter.

      In the result, we make the following order :
                                                                             B

     First appellant Sohan Lal @ Sohan Singh is acquitted of all the
charges. He shall be released forthwith, if his custody is not required in
any other case.
                                                                             c
     The convictions of second appellant Harbans Kaur and third appellant
Kanchan are hereby upheld. The appeal is dismissed as far as these accused
are concerned.

V.S.S'.'                                                Appeal dismissed.