DHAN SINGHversusSTATE OF HARYANA

                         [2010] 8 S.C.R. 794


A                            OHAN SINGH
                                   V.
                        STATE OF HARYANA
                 (Criminal Appeal No. 488 of 2009)

                            JULY 22, 2010
B
     [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
  endorsement on the Ex.PE 1, that the deceased was fit
0
  to make a statement and that the statement was read
  over to him and after he found the statement as correct,
  his signature were obtained on the statement which were
  duly signed even by the children of the deceased. Mere
  fact that the doctor had declared the deceased fit to make
E a statement would not mean that there was no eminent
  danger of death to his life. In fact, he died within few days.
  The trial court also noticed those facts as well as the fact
  that the deceased had specifically stated the role that was
  attributable to different accused persons. His statement,
F in the form of dying declaration, was clear and
  unambiguous about the role of the appellant and was
  fully corroborated by medical evidence. [Para 7) [804-D-
  E; G-H; 805-A]

G     1.2. The provisions of Section 32 of the Evidence Act,
  by themselves, do not mandatorily require that dying
  declaration has to be recorded by any designated or
  particular person. The investigating agency has to keep
  in mind the provisions of Section 32 of the Act read with
H Section 162 (2), Cr.P.C. as well as the settled principle of
         OHAN SINGH v. STATE OF HARYANA                   797


law and act in accordance with the established practice          A
while recording the dying declaration. It is normally
accepted that such declaration would be recorded by a
Magistrate or by a doctor to eliminate the chances of any
doubt or false implication by the prosecution during
investigation. In terms of Section 32 (1) of the Act, the        B
statement made by a person as to the cause of his death
or to such circumstances is admissible. There is no
doubt on the facts of the instant case that the statement
of the deceased was recorded only after he was declared
fit to make the statement by the doctor. The dying               c
declaration was endorsed by none other than the closest
relation of the deceased present at the relevant time. The
FIR itself was registered on the statement of the
deceased, which was recorded by the Head Constable,
who was competent to do so at the relevant time. Thus,
                                                                 0
there is no legal infirmity in the admissibility of such
statement per se in the facts and circumstances of the
present case. [Para 7] [805-C-H; 806-A]

      Dalip Singh v. State of Punjab (1979) 4 SCC 332 - relied
on.                                                              E

    Cherlopalli Cheliminabi Sahed v. State of A.P. (2003) 2
SCC 571; Kanti Lal v. State of Rajasthan (2004) 10 SCC 113
- distinguished.
                                                                 F.
      State (Delhi Administration) v. Laxman Kumar (1985) 4
sec    476 - referred to.

    2.1. There was dispute between the deceased and
his brother. After the death of the deceased, the family
seemed to have resolved their dispute. The prosecution           G
gave a satisfactory explanation that the son and the
daughter of the deceased were not examined by the
prosecution as they were won over by the accused. PW
3 and PW 4, the wife and the daughter of the deceased
did not support the case of the prosecution and were             H
    798     SUPREME COURT REPORTS              [201 O] 8 S.C.R.


A declared hostile. But, that by itself, would not demolish
  the case of the prosecution. The Court has also to keep
  in mind that no such persons are permitted to defeat the
  course of justice and if sufficient evidence exists and the
  prosecution was able to establish its case beyond any
B reasonable doubt, the Court should punish the guilty
  irrespective of the fact that some witnesses had turned
  hostile. [Para 8] [806-H; 807-A-D]

         2.2. There was no reason for the deceased to make
C   a false statement. Despite the fact that he was seriously
    injured with a very strong blow on his head by the iron
    rod, he was able to specify role of each accused in the
    occurrence. It was a case ~here head injury proved to
    be fatal leading to the death of the deceased. The injuries
    suffered by the wife and the daughter of the deceased,
D   as per the statement of other witnesses including the
    Investigating Officer, were received during the course of
    occurrence and in the house of the deceased. There was
    no occasion for the deceased to falsely implicate any
    person, particularly, his brothers and the appellant. The
E   injuries suffered by the deceased were fully corroborated
    by the statement of PW 1. There was no reason to not
    believe these witnesses and the medico legal report.
    Merely, because the members of the family of the
    deceased wanted to state incorrectly before the Court, it
F   would not give any advantage to the appellant, as
    prosecution was able to bring home the guilt of the
    accused with cogent and proper evidence. Thus, there
    was no merit in the challenge to the findings recorded in
    the impugned judgment. [Para 9] [808-E-H; 809-A-B].
G
       Jagriti Devi v. State of H.P. (2009) 14 SCC 771;
    Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 -
    referred to.

      3. There was no evidence to show that the appellant
H and the other persons had gone to the house of the
        OHAN SINGH v. STATE OF HARYANA                 799


deceased with the intention to kill him. In fact, it was a    A
family dispute with regard to the property. Appellant gave
one blow on the head of the deceased. There was no
intention to kill the deceased which was obvious from the
fact that a case under Section 323 of the IPC was
registered at the very outset and the Head Constable had      B
consulted PW 1, the doctor who had declared the
condition of the deceased to be stable as well as certified
that he was in a fit state of mind to make statement, which
ultimately became the dying declaration. The collective
analysis and examination of the evidence on record            c
shows that the 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 cause
death. In the circumstances, the offence of the appellant
is altered from Section 302 to Section 304 (Part II) of the
                                                              0
IPC, with a sentence of rigorous imprisonment for a
period of 10 years and fine of Rs. 20,000/-.[Paras 10, 11]
[809"F-H; 810-A-D]
                     Case Law Reference:
                                                              E
 (2003) 2 sec 571        distinguished        Paras 6, 7
 (2004) 10 sec 113       distinguished       Paras 6, 7
 (1979) 4 sec 332        relied on           Para 6
 (1985) 4 sec 476        referred to         Para 6           F
 (2009) 14 sec 111       referred to         Para 10
 (2009) 15 sec 635-      referred to         Para 10
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal         G
No. 488 of 2009.

    From the Judgment & Order dated 30.04.2008 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 324/DB/1999.
                                                              H
    800      SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A         Biswajit Swain (for Rajesh Prasad Singh) for the Appellant.

          B.S. Mor (for T.V. George) for the Respondent.

          The Judgment of the Court was delivered by

B        SWATANTER KUMAR, J. 1. The present appeal is
    directed against the judgment of conviction and order of
    sentence of the High Court of Punjab and Haryana at
    Chandigarh dated 30th of April, 2008, wherein the High Court
    confirmed the judgment of the Trial Court dated 17th of May
c   1999, punishing the appellant in accordance with law by
    awarding him sentence of rigorous imprisonment for a period
    of one year for the offence under Section 148 Indian Penal
    Code (hereinafter referred to as 'IPC'), rigorous imprisonment
    of two years and fine in the sum of Rs.1000/- for the offence
0   under Section 452 IPC and rigorous imprisonment for a period
    of six month for the offence under Section 323 IPC and life
    imprisonment and fine of Rs. 2000/- for the offence under
    Section 302 IPC and also awarded punishments in default of
    payment of fines for these offences.

E      2. We may refer to the facts of the case giving rise to the
  present appeal. On 15.07.1997, Head Constable, Ram Rattan
  (PW 8) was performing his petrol duty at Sohna Road, Palwal,
  when at about 5 PM he received intimation (Ex.PE) from
  Government Hospital, Palwal that three persons, namely, Shiv
F Ram, Bimla and Jai Kishan were lying injured in the casualty
  ward of the said hospital. Upon receiving this information he
  reached the hospital and met Dr. B.L. Chimpa (PW-1) and
  asked him whether the injured were in a fit state to make
  statements. After the doctor declared the injured fit to make
G statement at about 6.20 PM vide medical opinion Ex.PE/1, he
  recorded the statement of Shiv Ram being Ex. PF. In his
  statement, Shiv Ram stated that he had a dispute with his
  brother Khem Chand over a residential house. Though, Khem
  Chand only had a share in the property but he had maintained
H his residence in the entire house. At about 2.00 PM, on the date
          OHAN SINGH v. STATE OF HARYANA                       801
              [SWATANTER KUMAR, J.]
  pf occurrence, his wife Omkali (PW 3) and daughters, Simla           A
  (PW 4) ancl Rachna were present in the house and at that time
  the accused Khem Chand, Jai Kishan, Jai Parkash, Jagdish,
  Jai Bhagwan, sons of Khem Chand, his wife Raj Bala alo~gwith
  Ohan Singh, Devinder and Rajakali, entered ·their ho!JSe and
  opened attack upon him and on his family members. Accused            B
  Ohan Singh was holding an Iron Rod and he !nflicted a blow
' with the same on the head and left ear of Shiv Ram. Accused
  Jai Kishan gave lathi blows on his back and accused Jai
  Parkash also inflicted a lathi blow on fingers of his right hand.
  Lathi blows were also given by Khem Chand and Rajkali on             c
  his hips and other parts of the body. Injuries were also inflicted
  by lathi blows on Simla, who was later examined as PW 4. The
  injured persons raised hue and cry and people from nearby
  started gathering, but by that time, the accused persons ran
  away from the spot and while leaving, they also threatened the       0
  injured persons that they would kill them on the next available
  opportunity. After collecting the medico-legal reports of Shiv
  Ram, his wife Omkali and daughter Simla, the Investigating
  Officer also took the endorsement and signatures of Omkali
  and Bimla on the statement of Shiv Ram being Ex. PF/1. On
  the basis of this statement, FIR No. 573 under Section 148,
                                                                       E
  452, 323 and 506 read with Section 149 IPC was registered
  at about 6.15 PM ,on 15.07.1997 at Police Station City, Palwal
  by Virender Singh, ASI (PW2). The FIR was exhibited as PF/
 2.
                                                                       F
      3. The accused persons had caused injuries on the body
 of the deceased as well as the injured by blunt weapons. Shiv
 Ram was kept under observance in the hospital. The
 Investigating Officer prepared the· rough site plan of the place
 of occurrence and recorded the statement of witnesses under           G
 Section 161 of the Criminal Procedure Code (hereinafter refer
 to as 'Cr.PC'.) and the accused persons were taken into
 custody. However, in the meanwhile, the condition of Shiv Ram
 became serious and he was referred to Safdarjung Hospital,
 New Delhi, where he ultimately expired on 22nd of July, 1997          I-'
    802       SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A   at about 7:30 AM. ASI Sri Niwas (PW 11 ), who was then posted
    in Police Post, Safdarjung Hospital, New Delhi, conducted the
    inquest proceedings vide Ex. PJ. Thereafter, the body was sent
    for post-mortem, which was conducted by Dr. Chandra Kant
    (PW 5) on 23rd July, 1997. After the death of Shiv Ram, his
B   son Praveen Kumar gave information at Police Station City,
    Palwal about his death and Head Constable Jagdish Chand
    (PW 7) converted the case into one under Section 302 IPC and
    a special report Ex.PK was sent to the Area Magistrate. After
    the case was registered under Section 302, the investigation
c   of the case was taken over from Head Constable by Sl/SHO
    Puran Chand, PW 9 and all the accused except Ohan Singh
    were re-arrested. Then the Investigating Officer recorded the
    statement of various witnesses. The disclosure statements
    Ex.PM to Ex.PU were also made by accused persons, which
    led to the recoveries of 7 lathis and 2 dandas and seizure memo
0
    Ex. PV was prepared. After completion of the investigation, the
    chargsheet was filed under sections 148, 149, 323, 506, 452
    and 302 IPC. Since an offence under Section 302 IPC is triable
    exclusively by the Court of Sessions, the case was committed
    to that court. All the nine accused were then chargsheeted.
E   Accused Ohan Singh was declared as a proclaimed offender.
    He was taken into custody on 18.12.1997. Whereafter the
    supplementary challan was filed in the Court and both these
    cases, having arisen out of the same incident, were clubbed
    together for trial. Upon completion of prosecution evidence, the
F   statement of the accused under Section 313 of Cr.P.C. was
    recorded. All the accused declined to lead any evidence in their
    defence. The learned Sessions Judge, by a detailed judgment
    dated 17th of May 1999, recorded a finding that the head injury,
    which has been attributed to accused Ohan Singh, was found
G   sufficient to cause death of Shiv Ram and his case falls under
    clause 'thirdly' of Section 300 IPC. The Trial Court recorded its
    findings on the question of guilt as follows:

          "As a result of my aforesaid discussion , I conclude that
H         the accused Rajkali, Jai Kishan, Jagdish, Khem Chand,
                OHAN SINGH v. STATE OF HARYANA                803
                    [SWATANTER KUMAR, J.]

    Jai Bhagwan, Oevender, Raj Bala, Jai Prakash and                 A
    Bairam have committed offences under sections 148, 452,
    325 and 323 read with Section 149 IPC whereas the
    accused Ohan Singh has committed offences under
    sections 148, 452, 323 read with section 149 IPC and
    section 302 IPC. I hold them guilty accordingly. Now for         B
    hearing these accused on the quantum of sentence to
    come up on 17.5.1999."

     )()()()(    )()()()(         )()()()(


      4. The judgment of the Court of Session was only               C
questioned by Ohan Singh unsuccessfully before the High Court.
The High Court vide its judgment dated 3oth of April, 2008 held
that the death was a direct result of the impact of injuries
attributable to the appellant by relying upon the statement of
PW 5 and declined to interfere with the conviction and sentence      O
of the appellant, thus giving rise to the filing of the present
appeal. The appeal has been preferred only by accused Ohan
Singh. Other accused did not challenge the judgment of the Trial
Court.
                                                                     E
     5. Having noticed the complete facts necessary for
determining the question raised in the present appeal, now we
shall proceed to discuss the different legal and factual
submissions made by the appellants before this Court.

      6. Dying declaration:- The learned Counsel appearing           F
for the appellant has vehemently argued that the statement in
question (Ex.PF/1) cannot be relied upon as dying declaration
of deceased Shiv Ram in the facts of the case. In any case,
Head Constable Ram Rattan could not have recorded the dying
declaration and as per established practice it has to be             G
recorded by a competent Magistrate and the prosecution having
failed to place any explanation on record as to why the
statement was recorded by Head Constable Ram Rattan,
therefore, the said statement would be inadmissible in evidence
and it could not be made the basis of conviction of the appellant.   H




                                                              \
    804     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A The counsel has also placed reliance upon the judgments of
  this Court in Dalip Singh v. State of Punjab [(1979) 4 SCC
  332)], Cherlopalli Cheliminabi Sahed v. State of A.P. [(2003)
  2 SCC 571 )], State (Delhi Administration) v. Laxman Kumar
  [(1985) 4 SCC 476)] and Kanti Lal v. State of Rajasthan
B [(2004) 10 SCC 113). It is obvious from the above narrated
  facts that this was not a case which, to begin with, has been
  registered under Section 302 IPC. The FIR was registered
  under Sections 148, 452, 323 and 506 read with Section 149
  IPC, which could not be investigr•ed by a Police Officer of the
c rank of Head Constable. This fact is not in dispute before us.

          7. The Head Constable had received intimation from the
    hospital and had gone to the hospital where he came to know
    about the kind of injuries which have been inflicted upon the
    three injured persons. Dr. B.L. Chimpa (PW 1) had recorded
D   an endorsement on Ex. PE 1 that in his opinion, Shiv Ram was
    fit to make a statement and that the statement of the injured
    was read over to him and after he found the statement as
    correct, his signatures were obtained on the statement which
    were duly signed even by the children of the deceased. After
E   his death on 22nd of July 1997, the FIR was converted to that
    under Section 302 IPC amongst other sections and the
    investigation was conducted accordingly by the officer
    competent in accordance with law to conduct such an
    investigation. It is not a case where no explanation whatsoever
F   has been rendered by the prosecution. It is in evidence that the
    condition of the deceased was worsening at Government
    Hospital, Palwal, therefore, he was shifted to Safdarjung
    Hopsital, New Delhi, where he died. The information of the
    death of deceased was given by his son Praveen Kumar at the
G   Police Station City, Palwal. Mere fact that the doctor had
    declared Shiv Ram fit to make a statement does not mean that
    there was no eminent danger of death to his life. In fact, he died
    within couple of days. The learned Trial Court had also noticed
    these facts as well as the fact that Shiv Ram had specifically
H   stated the role that was attributable to different accused
        OHAN SINGH v. STATE OF HARYANA·                     805
            [SWATANTER KUMAR, J.]
persons. His statement, in the form of dying declaration, was A
clear and unambiguous about the role of Ohan Singh. His
statement was fully corroborated by medical evidence. In these
circumstances, the appellant can hardly take any advantage in
this regard. In the case of Oalip Singh (supra), this Court held
that the dying declaration recorded by Police Officer during B
course of investigation is admissible under Section 32 of the
Indian Evidence Act (for short the 'Act'). In view of the exception
provided in sub-section 2 of Section 162 Cr.P.C., it is better
to leave such dying declaration out of consideration, until and
unless the prosecution satisfies the Court, as to why it was not ·c
recorded by the Magistrate or by a doctor. We may note that
the provisions of Section 32 of the Act, by themselves, do not
mandatorily require that dying declaration has to be recorded
by any designated or particular person. The investigating
agency has to keep in mind the provisions of Section 32 of the 0
Act read with Section 162 (2) of the Cr.P.C. as well as the
settled principle of law and act in accordance with the
established practice while recording the dying declaration. It is
more because of development of law through pronouncement
of Court's judgement that guidelines for recording of dying
                                                                    E
declarations have been settled. Despite their being no
mandate, it is normally accepted that such declaration would
be recorded by a Magistrate or by a Doctor to eliminate the
chances of any doubt or false implication by the prosecution
during investigation. In terms of Section 32 (1) of the Act, the
statement made by the person as to the cause of his death or F
to such circumstances, are admissible. There· is no doubt on
facts of the present case that statement of Shiv Ram, deceased
was recorded only after he was declared fit to make the
statement by the concerned doctor. The dying declaration was
endorsed by none other than the closest relation of the G
deceased person present at the relevant time. The FIR itself
                                               ..
was registered on the statement of Shiv Ram, which was
recorded by the Head Constable, who was competent to do
so at the relevant time. We are unabl~ to find any legal infirmity
in the admissibility of such statement per se in the facts and H
    806      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A   circumstances of the present case. In the case of Cherlopal/i
    Cheliminabi Sahed (supra), this Court clearly stated that it is
    not absolutely mandatory that in every case, dying declaration
    ought to be recorded only by a Magistrate and it depends on
    the facts and circumstances of the case. When there was no
8   eminent danger to life of the deceased, preferably the
    statement should be recorded by the Magistrate. The judgment
    of that case cannot be of much assistance to the appellant. In
    the case of Kanti/a/ (supra), the other judgment relied upon by
    appellant, this Court was, prirr Jrily concerned with the facts
c   where the condition of the deceased to make a statement was
    not satisfactorily recorded by the concerned persons. In that
    case, the Court held that admissibility of dying deciaration as
    to any of the circumstances which resulted in death must have
    some close and proximate relation with the actual occurrence
    and such proximity would depend upon the circumstances of
0
    each case. The dying declaration should be voluntary and
    should not be a prompted one. The physical as well as mental
    fitness of the maker has to be proved by the prosecution to the
    satisfaction of the Court. In that case, the doctor had neither
    made any endorsement nor had issued any certificate that the
E   deceased was fit to make a statement. It is certainly not the
    case here. Here the Doctor had not only issued a certificate
    but also had expressed his opinion as is clear from Ex. PF1.
    Thus, this case also has no application to the facts of the case
     in hand.
F
         8. Appreciation of evidence:- It is argued that the
    judgments of the Courts under appeal are liable to be set aside
    as their findings are based on no evidence and are perverse.
    The son of the deceased and his daughter Rachna have not
G   been examined as a witness. No independent witness was
    examined and no definite role has been attributed to any of the
    accused and, as such, the accused were entitled to acquittal.
    This contention, to say the least, is without any merit and
    substance. Firstly, it is clear from the record that there was a
     dispute between two brothers. After the death of Shiv Ram, it
H
         OHAN SINGH v. STATE OF HARYANA                       807
             [SWATANTER KUMAR, J.]
appears that the family had resolved their dispute and the           A
prosecution gave a satisfactory explanation on record that
Praveen and Rachna were not examined by the prosecution as
they were won over by the accused. Both the family members
of the deceased did not support the case of prosecution and
were declared hostile. Keeping in view the statement of family       B
members, other witnesses, doctor's statement and medico-
legal report as relevant, it was felt by the Investigating Officer
not to examine the other two family members. The statement
of Shiv Ram was clear and satisfactory. PW 3 and PW 4 did
not support the case of the prosecution and were declared            c
hostile. But, that by itself, would not demolish the case of the
prosecution. The Court has also to keep in mind that no such
persons are permitted to defeat the course of justice and if
sufficient evidence exists and the prosecution has been able
to establish its case beyond any reasonable doubt, the Court
                                                                     0
should punish the guilty irrespective of the fact that some
witnesses have turned hostile. The dying declaration of Shiv
Ram clinches the entire issue when read with the statement of
the doctor and his medico-legal report Ex. PA where injuries
upon the deceased have been detailed as under:
                                                                     E
             1.    A lacerated wound on the right parietal
                   region 5 x 2.5 cm into skin deep with
                   irregular margins and fresh bleeding.

            2.     A lacerated would on the left eye-brow 0.5 x      F
                   0.25 cm into skin deep with irregular
                   margins and fresh bleeding.

            3.     A lacerated would on the anterior side of the
                   left pinna 0.50 x 0.25 cm into skin deep with
                   irregular margins and fresh bleeding.             G

            4.     A contusion on the left side of the face 1 cm
                   anterior to the left ear 5 x 4 cm and reddish
                   in colour.
                                                                     H
    808     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A               5.    A lacerated would on the dorsal surface of
                      right ring finger 2 x 0.25 cm into skin deep
                      with fresh bleeding.

                6.    A contusion over the left scapular region
                      measuring 6 x 2 cm in size and red in colour.
B
                7.    A contusion over the right scapular region
                      measuring 5 x 2 cm in size and red in colour.

                8.    A contusion on the posterior side of the chest
c                     1 cm below the scapular margins. It
                      measures 5 x 2 cm and was in red colour.

                9.    A contusion over the posterior side of the left
                      wrist joint measuring 4 x 3 cm and reddish
                      in colour.
D
                10.   A contusion over the anterior side of the left
                      thigh in its lower third measuring 4 x 2 cm and
                      reddish in colour."

E       9. There was no reason for Shiv Ram to make a false
  statement, on the contrary. Despite the fact that he was
  seriously injured with a very strong blow on his head by the iron
  rod, he was able to specify role of each accused in the
  occurrence. As per the statement of PW1, wife and daughter
  of deceased Shiv Ram namely, Omkali and Simla had received
F injuries, which fully supported the case of the prosecution. It was
  a case where head injury proved to be fatal leading to the death
  of Shiv Ram. The injuries suffered by Omkali and Bimla, as per
  the statement of other witnesses including the Investigating
  Officer, have been received during the course of occurrence
G and in the house of Shiv Ram. There was no occasion for Shiv
  Ram to falsely implicate any person, particularly, his brothers
  and Ohan Singh, in the present case. The injuries suffered by
  the deceased are fully corroborated by the statement of PW 1.
  There was no reason or justification before the Court, not to
H
         OHAN SINGH v. STATE OF HARYANA                        809
             [SWATANTER KUMAR, J.)
believe these witnesses and the medico legal report. Merely,          A
because the members of the family of the deceased wanted
to state incorrectly before the Court, it would not give any
advantage to the appellant, as prosecution has been able to
bring home the guilt of the accused with cogent and proper
evidence. Thus, for these reasons, we do not find any merit in        B
                                                         I

the challenge to the findings recorded in the impugned
judgment.

The conviction ought to be under Section 304 Part II of
IPC and not under Section 302 of IPC
                                                                      c
      10. The counsel for the appellants has placed reliance upon
the case of Jagriti Devi v. State of H.P. [(2009) 14 SCC 771),
where this Court had permitted to alter the offence of 302 IPC
to 304 Part II IPC while recording the finding that the khukri used
in the commission of offence was kept by the deceased under           0
her pillow, while she was sleeping in the veranda outside the
house. Clearly, there was no intention on the part of the accused
to kill the deceased. In the Case of Gurmukh Singh v. State
of Haryana [(2009) 15 sec 635), there was a single lathi blow
on the spur of the moment resulting in death of the deceased          E
and Court permitted altering of the offence. There cannot be
any dispute to the principles stated in the judgments relied upon
on behalf of the appellant. But equally true is that there cannot
be any straightjacket formula which can be universally applied
to all cases of this kind. It will always depend upon the facts       F
and circumstances of each case. In the present case, there is
no evidence to show that the appellant and other persons had
gone to the house of Shiv Ram with the intention to kill him. In
fact, it was a family dispute with regard to property. They had
gone equipped with lathi and Ohan Singh was carrying an iron          G
rod. He had given one blow on the head of the deceased and
there was no intention to kill the deceased which is obvious
from the fact that a case under Section 323 of the IPC was
registered at the very outset and Head Constable, Ram Rattan
had consulted PW 1 who had declared the condition of the
                                                                      H
    810       SUPREME COURT REPORTS                [2010] 8 S.C.R.


A deceased to be stable as well as certified that he was in a fit
  state of mind to make statement, which ultimately became the
  dying declaration. From the collective analysis and examination
  of the evidence on record, it appears that the appellant had no
  intention to kill the deceased and did not give him a blow with
B the intention to kill or with the knowledge that it was likely to
  cause death.

       11. For these circumstances and in line with the judgments
  afore referred, we are of the considered view that the offence
  of the appellant could be altered from Section 302 to Section
C 304 Part II of the IPC. Consequently, we hold the appellant guilty
  of offence under Section 304 Part II and award him rigorous
  imprisonment for a period of 10 years with fine of Rs. 20,000/
  -. In default of payment of fine the accused shall undergo
  rigorous imprisonment for a period of six months.
D
           12. The appeal stands disposed off in the above terms.

    D.G.                                    Appeal partly allowed.