LexDHAN SINGH versus STATE OF HARYANA
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A B [2010] 8 S.C.R. 794 OHAN SINGH V. STATE OF HARYANA (Criminal Appeal No. 488 of 2009) JULY 22, 2010 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] Penal Code, 1860: ss. 148, 149, 323, 506, 452 and 304 (Part II) - Dispute over property between deceased and his C brother - Accused persons including the brother of deceased and the appellant attacked the deceased - Appellant inflicted blow on the head of the deceased with an iron rod - Other ~ accused a/so inflicted injuries on deceased and his wife - Doctor recorded endorsement that the. deceased was fit to D make a statement - Statement recorded by Head Constable - Case registered uls.323 -Deceased died in hospital after few days - Case converted into one uls.302 - Statement of deceased treated as dying declaration - Conviction under s. 302 based on the declaration - Challenged - Held: Dying E declaration was clear and satisfactory and was fully corroborated by medical evidence -Although the wife and the daughter of the deceased were declared hostile, but, that by itself, would not demolish the case of prosecution - There was no reason for the deceased to falsely implicate his brother F and the appellant - Thus, prosecution was able to bring home the guilt of appellant - However, the collective analysis and examination of the evidence showed that appellant had no intention to kill the deceased and did not give him a blow with the intention to kill or with the knowledge that it was likely to G cause death - In the circumstances, conviction altered from s.302 to s.304 (Part II) - Evidence Act, 1872- s.32- Witness - Hostile witness. Evidence Act, 1872: s.32 - Dying declaration - Statement of victim recorded by Head Constable - Victim H 794 OHAN SINGH v. STATE OF HARYANA 795 died within few days - Admissibility of the statement as dying A declaration - Held: In terms of s.32(1), the statement made by a person as to the cause of his death or such circumstances is admissible - Provisions of s. 32 do not mandatorily require that dying declaration has to be recorded by any designated or particular person - Doctor declared that 8 victim was fit to make the statement - Statement endorsed by closest relation of the. victim - Such statement admissible in the facts and circumstances of the case - Penal Code, 1860 - ss. 148, 149, 323, 506, 452 and 304 (Part-I/) - Code of Criminal Procedure, 1973 - s.162(2). c The prosecution case was that the deceased had dispute with his brother over a residential house. On the date of incident, the deceased, his wife (PW-3) and his daughters were present in the house. The accused persons including the brother of the deceased and the D appellant entered the house. The appellant was holding an iron rod and he inflicted a blow with the same on the head of the deceased. The brother of the deceased gave a lathi blow on the other parts of the body of the deceased. The other accused also gave lathi blows on E his back. Injuries were also inflicted on PW-3. Thereafter the accused persons ran away. The injured were taken to hospital. PW-8, the Head Constable was intimated about the incident. PW-8 reached the hospital and recorded statement (Ex.PE 1) of the deceased. On the F basis of the statement, an FIR was recorded under Sections 148, 452, 323, 506 r.w. Section 149 IPC. After about a week, the deceased died in the hospital. The case was converted into one under Section 302 IPC. The trial court recorded a finding that the head injury which was G attributed to the appellant was sufficient to cause the death of the deceased and the case fell under clause "thirdly" of Section 300 and accordingly convicted the appellant under Sections 148, 149, 323, 506, 452 and 302 H 796 SUPREME COURT REPORTS [2010] 8 S.C.R. A IPC. The High Court refused to interfere with the order of trial Court. In the instant appeal, it was contended for the appellant that the statement recorded by the Head Constable was not reliable as a dying declaration, as the 8 same ought to have been recorded by a Magistrate; that the son and the daughter of the deceased were not examined as witnesses and the findings were based on no evidence and were perverse; and that in the alternate, the conviction ought to have been under Section 304 C (Part II) IPC and not under Section 302 IPC. Partly allowing the appeal, the Court HELD: 1.1. The doctor, PW-1 had recorded an 0 endorsement on the Ex.PE 1, that t
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