GULZARI LAL vs. STATE OF HARYANA

1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.92 OF 2016 (Arising Out of SLP (Crl) No.7406 of 2015) GULZARI LAL ……… APPELLANT Versus STATE OF HARYANA ……… RESPONDENT J U D G M E N T V. GOPALA GOWDA, J. Delay condoned. 2.Leave granted. 3.The present appeal arises out of the impugned judgment and order dated 29.05.2012 passed in Crl. Appeal JUDGMENT 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 Page 1 2 Indian Penal Code (hereinafter referred to as "IPC") and sentenced him to undergo imprisonment for life,

IPC. In case of default of payment of fine of Rs. 400/-, the appellant was further directed to undergo rigorous imprisonment for one month. 4.Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:- 5.The prosecution case before the Trial Court was that on 28.05.1999 FIR No. 281 of 1999 was registered at Police Station, Sadar Hisar against Om Prakash, Gulzari and JUDGMENT Kuldeep for committing murder of one Maha Singh, and voluntarily causing injuries to Dariya Singh (eldest son of Maha Singh) and that they have committed offences punishable under Sections 302,323 read with Section 34 of IPC. 6.According to the prosecution, on the intervening night of 26/27.05.1999, Maha Singh was brought to Civil Hospital, Hisar in an injured condition. At 2.15 am, Page 2 3 the doctor on casualty duty gave his opinion stating that the injured victim was in a fit condition to make

statement of Maha Singh. Thereafter, the statement of Maha Singh was sent to Police Station at 10.40 am on 27.05.1999 for recording with an endorsement that no cognizable offence has been made out. 7.Subsequently, the condition of Maha Singh started deteriorating and on the night of 27.05.1999 he was referred to PGI Hospital Rohtak. On 28.05.1999, he was transferred to the Government Hospital, Hisar where he was declared by the Hospital as brought dead. On the JUDGMENT very same day, intimation was sent to the Police Station and a case was registered under Sections 302 and 323 read with Section 34 of IPC on the basis of the statement of Maha Singh recorded by the Head Constable Manphool Singh (PW-7). 8.The inquest proceeding was conducted and post mortem of the body was done in the Government Hospital. The scaled site plan as well as rough site plan was Page 3 4 prepared and the three accused were arrested. On 04.06.1999, ASI Ram Kumar (PW-12) arrested Gulzari Lal

completion of the investigation by the investigation officer, challan was presented against the appellant and the co-accused before the learned Magistrate. 9.On 18.11.999, charges were framed against the accused persons under the provisions of Sections 302/323 read with Section 34 IPC by the Addl. District & Sessions Judge, Hisar.

time of trial and their testimony was recorded before JUDGMENT 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.

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 Page 4 5 sentenced them for life imprisonment under Sections 302 read with 34 IPC and imposed a fine on each accused of

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.

JUDGMENT 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.

record, the High Court observed in its order that the Page 5 6 case in hand was not only based on the dying declaration of the deceased but also on the

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 JUDGMENT 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 Page 6 7 of the murder weapon. The High Court, after hearing the arguments of the learned counsel for both parties,

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 JUDGMENT (the co-accused) and Dharam Raj. Thus, the deceased had saved the appellant and motive cannot be attributed to the appellant.

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 Page 7 8 death so as to lend more weight to the story of the prosecution. His thumb impression was put on paper and

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.

Constitution Bench judgement of this Court in the case 1 of Tarachand Damu Sutar v. The State of Maharashtra , wherein it was held as under: JUDGMENT “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.”

2 this Court in Waikhom Yaima Singh v. State of Manipur , wherein it was held as under: 1 AIR 1962 SC 130 2 2011 (13) SCC 125 Page 8 9

The learned counsel further placed reliance on the decision of this Court in the case of Nanhar & Ors. v. 3 State of Haryana , 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 JUDGMENT 4 v. State of Tamil Nadu , wherein the Division Bench of this Court held that: “14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. 3 (2010) 11 SCC 423 4 (2006) 3 SCC 161 Page 9 10

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 JUDGMENT 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 Page 10 11 reason upon which the High Court also gave a concurrent finding of fact. Therefore, the same need

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 JUDGMENT the appellant for offences punishable under Section 302 read with Section 34 IPC.

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 Page 11 12 and the witnesses. Further, reliance was placed on the case of Ram Avtar Rai & Ors. v. State Of Uttar

the deceased and recorded by the Head Constable 5 (1985) 2 SCC 61 Page 12 13 Manphool Singh (PW-7). A valid dying declaration may be made without obtaining a certificate of fitness of the

Further, clarity on the issue may be established by the

6 (2002) 6 SCC 710 Page 13 14 7 State of Bihar , wherein this Court addressed the question regarding the dying declaration that was not recorded by

dying declaration of the deceased for the reason that at JUDGMENT 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. (1999)2SCC126 7 Page 14 15

on the statements made by Maha Singh (deceased) but

independent witness Rajinder Singh (PW-11).

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] JUDGMENT …………………………………………………J. [V. GOPALA GOWDA] New Delhi, February 2, 2016 Page 15 16 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

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. JUDGMENT 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) Page 16