SURINDER KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) - Sheema, second wife of appellant Surinder Kumar, sustained 70 per, cent burn injuries in an occurrence which took place on May 16, 1987 and ultimately succumbed to those injuries on May 22, 1987. Surinder Kumar and his son Sanjiv from his first wife were tried for the murder of Sheema and also for subjecting her to cruelty. The trial Court convicted both of them under Ss. 302/ 304 and 498-A/ 34 of the Indian Penal Code. They were sentenced for life and a fine of Rs. 500/- on the first count and rigorous imprisonment for two years and a fine of Rs. 200/- on the second count. The High Court, on appeal, maintained their conviction and sentence under S. 302/34, Indian Penal Code. They were, however, acquitted by the High Court of the offence under S. 498-A/ 34, Indian Penal Code. This appeal by way of special leave is by the appellants against their conviction and sentence.

(2.) The conviction of the appellants is based on the dying declaration made by the deceased in the hospital before a Judicial Magistrate. The doctor certified that the patient remained conscious during the period her statement was recorded. The Judicial Magistrate recorded a certificate that the statement of Sheema was recorded by, him and it contained true version of her statement and she had thumb marked the same. We have been taken through the text of the dying declaration. We are satisfied that in view of the doctor's certificate, there is no infirmity in the recording of the dying declaration by the Magistrate and the same inspires confidence.

(3.) Mr. U. R. Lalit, learned senior advocate appearing for the appellants has vehemently contended that Dr. Ashok Tandon who admitted the deceased in the hospital recorded that the patient 'allegedly' got burns while cooking food on gas-stove. Mr. Lalit further contended that Dr. Ashok Tandon appearing as PW-11 has deposed that at the time of his examination the patient was conscious and she told him that she got the burn iluries while cooking food on gasstove. Mr. Lalit has argued that the statement made by Sheema before the doctor giving cause of her death is the earliest version and amounts to a dying declaration. According to him there being two contradictory statements by the deceased the dying declaration recorded by the Magistrate is not worthy of credit and conviction of the appellants cannot be based on the same. We do not agree. It was accused. Surinder Kumar who brought his wife Sheema to the hospital and he remained present while the deceased was examined by the doctor. It is nowhere mentioned in the record that what was recorded by the doctor was stated by the deceased. It is evident that what was recorded by Dr. Tandon could not be the version of Sheema herself. Had it been so the doctor may not have used the word "alleged" while recording that the patient received injuries while cooking food on gasstove. Dr. Tandon did not mention anywhere on the record about the state of mind of Sheema. It was nowhere recorded whether she was conscious or not. It is difficult to believe that the doctor made his deposition in the court on the basis of his memory. it is more probable that what was recorded by Dr. Tandon was at the instance of the husband who was accompanying his wife at the time of her examination by Dr. Tandon. On the above reasoning both the courts below have rejected the defence argument that what was recorded by Dr. Ashok 'fandon was at the instance of the deceased. We see no ground to differ with the conclusions reached by the courts below.