Supreme Court of India
PALWINDER SINGHversusBALWINDER SINGH & ORS.
- Citation
- 2008 INSC 1190
- Decided
- 20 October 2008
- Disposal
- Appeal(s) allowed
Holding
The High Court erred in appreciating evidence and preferring a dying declaration at the charge‑framing stage; such appraisal is beyond its jurisdiction under Section 227.
Summary
The deceased, Darshan Kaur, a dumb (and allegedly deaf) woman, was set on fire on 6 April 2001 and gave two dying declarations identifying the accused. The Sessions Judge refused to discharge the accused under Section 227 of the CrPC, but the High Court, on revision, allowed the discharge, preferring one dying declaration over the other and questioning the credibility of the statements. The Supreme Court held that the High Court erred by appreciating evidence and preferring a dying declaration at the charge‑framing stage, a function limited to the Sessions Judge who may frame charges only on the basis of strong suspicion. The Court also rejected the High Court’s reasoning about the deceased’s deaf‑dumb status and the thumb‑impression issue. Consequently, the High Court’s order was set aside and the appeals were allowed, directing the trial court to dispose of the case expeditiously.
Issues considered
- Whether a High Court may appraise evidence and prefer one dying declaration over another at the stage of framing charges under Section 227 of the CrPC.
- Whether the Sessions Judge can discharge accused when a dying declaration identifies them.
- Whether the alleged deaf‑dumb condition of the deceased affects the admissibility or weight of her dying declarations.
- Whether the absence of thumb impressions on all pages of a dying declaration renders it invalid.
Legislation cited
Subjects
Section 227dying declarationcharge framingevidence appreciationhigh court revisiondischarge of accusedmurderCriminal ProcedureIndian Penal Codedeaf and dumb
Judgment
[2008] 14 S.C.R. 883
._ T PALWINDER SINGH A
v.
BALWINDER SINGH & ORS.
(Criminal Appeal No. 1681 of 2008)
OCTOBER 20, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ]
)
Code of Criminal Procedure, 1973:
s. 227 - Application for discharge of persons accused of
murder - Rejected by trial Court - Allowed by High Court in c
revision petition - HELD: High Court committed a serious er-
ror insofar as it entered into the realm of appreciation of evi-
dence at the stage of framing of charges - Jurisdiction of the
Sessions Judge while exercising power _uls 227 is limited -
Charges can be framed also on the basis of strong suspicion D
- Marshalling and appreciation of evidence is not in the do-
main of the Court at that point of time - Furthermore, it was not
-~
the stage where the High Court would prefer one dying dee/a-
ration to the other - Indisputably, the deceased in her first dy-
ing declaration had identified the accused - Judgment of High E
Court set aside - Penal Code, 1860 - s. 302 - Dying declara-
tion. [para 12 and 15-16]
State of Orissa Vs. Debendra Nath Padhi 2004 (6) Suppl.
=
SCR 460 (2005) 1 sec 568 - relied on.
F
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
f
No. 1681 of 2008
From the final Judgment/Order dated 14.12.2005 of the
High Court of Punjab and Haryana at Chandigarh in Crl. Revi-
sion No. 2250 of 2003 G
-1 Satinder S. Gulati, Kamaldeep Gulati, Dr. Kailash Chand,
/
Kuldip Singh, R.K. Pandey, T.P. Mishra and H.S. Sandhu for the
Appellant.
883 H
884 SUPREME COURT REPORTS [2008) 14 S.C.R.
A R.P. Gupta, Kamakshi S. Mehlwal and Prabhat Pachauri f •
for the Res;pondents.
The following Order of the Court was delivered by
Leave granted.
B
1. These appeals are directed against the judgment and
order dated 14.12.2005 passed in Criminal Revision No.2250 · \
of 2003 by a learned Single Judge of the High Court of Punjab
and Haryana at Chandigarh whereby and whereunder the revi-
C sio'n application filed by respondents-accused herein question-
ing the correctness of the order dated 30.10..2003 passed by
the learned Sessions Judge refusing to discharge them in ex-
ercise of its jurisdiction under Section 227 of the Code of Crimi-.
nal Procedure was allowed.
D
2. Husband of the deceased - Darshan Kaur is before us
questioning the legality or validity of the said order.
3. Indisputably, the parties are neighbourers. It is, further-
more, not in dispute that the deceased was a dumb lady.
E
4. First Information Report proceeded on the basis that as
they have no other place in their house for easing themselves,
the deceased used to use the land of the respondents for that
purpose. On 6.4.2001 early in the morning when she went to
F the land of the respondents, she was caught and set on fire
after pouring kerosene on her. t
5. Appellant before us was attracted by fire and brought her
to the hospital. On the same day i.e.6.4.2001 itself, her dying
G declaration was recorded by the Executive Magistrate, Chamkaur
Sahib. She identified respondents herein. The questions put to
her and answers given thereto with sign are as under:
"Q. Whether you set on fire before rising the sun?
H Ans. Yes, with sign of head.
'·
PALWINDER SINGH v. BALWIN.DER SINGH 885
& ORS.
. t Q. Who set on fire you? A
Ans. Two persons set on fire me one of them was open
beard and one was with cutting beard.
Q. Whether you can identify the person who set on
fire you? 8
Ans. Yes, with signs. And then she identify Daljit Singh
) and Balwinder Singh sons of Faqir Singh resident of
Dholran with sign of head.
Q. In which place and how you put on fire? c
Ans. With signs these two persons forcibly set me on the
fire in their cattle shed.
Q. Whether they set on fire you after pouring
Kerosene? D
Ans. No"
~ 6. It, however, appears that another dying declaration was
recorded by the Sub-Divisional Magistrate,Ropar on 11.4.2001.
The material portion whereof reads as under:
E
"Aged 45-50 years. I have two sons and one daughter.
Today morning at 5 a.m. I had gone out. Two persons
came. Both were sikhs and were wearing turban tied and
both were 6 Ft. in height. One of them was 40 years old
and one of them is less aged whose name is not known. F
They are from my village. I don't know that, if there is any
",f
enmity with me or not. There is no toilet in the house to go
out. They have caught hold me from the arms taken inside
by opening the door. I was shouted at 5 A.M. but nobody
heard my noise. There was no quarrel with these persons G
at any time. I was not even quarreled with my own family.
~ They have not caught me with bad intention but caught me
(,
to put on the fire. After putting the fire my husband reached
in 10-15 minutes and those persons ran away after putting
the fire. I can recognise those persons and there is no
H
,.
886 SUPREME COURT REPORTS [2008] 14 S. C.R.
A quarrel in the house at any time and I was never went out
from the house by quarreling. We are doing agriculture
and there is no dearth of money.Tehal Singh is my Dewar
and we are living in the house together. I can recognise to
those persons."
B 7. Nine persons, thereafter, appear to be produced be-
fore her and she is said to have identified Kashmir Singh son of
Gurbachan Singh and Satwinder Singh son of Mohinder Singh.
8. It, however, appears that her left thumb impression was
c not taken on the foot of the page. The left thumb impression of
the deceased appears only on the first page and that too only
after the signatures of the Sub-Divisional Magistrate wherafter
the fact that nine persons produced for the test identification
parade before her was recorded.
D 9. As indica.ted hereinbefore her left,tltlumb impression was
not taken at the end of the said statement. An application for
discharge was filed before the learned Sessions Judge which,
as noticed hereinbefore, has been dismissed.
10. Respondents themselves in their Memo of Revision
E filed before the High Court of Punjab and Haryana contended
that the deceased-Darshan Kaur was deaf lady, who was para-
lytic also. By reason of the impugned judgment, the High Court
while allowing the said revision application, inter-alia, opined
that the deceased was both deaf and dumb and she was para-
F lytic also.
11. lnter-alia, on the aforementioned premise and further-
more upon considering the acceptability of one or the other dy-
ing declaration, it was held;
G (i) as the deceased has identified only Kashmir Singh
and Satwinder Singh, there is no reason for the
learned Sessions Judge to frame charges against t· )'
the respondents;
(ii) the dying declaration recorded by the learned Sub-
H
PALWINDER SINGH v. BALWINDER SINGH 887
& ORS.
' -r Divisional Magistrate should be preferred to that of A
the dying declaration recorded by the learned
Executive Magistrate.
(iii) It was not necessary for the learned Sub-Divisional
Magistrate, Ropar to take the left thumb impression
of the deceased on all pages. 8
) (iv) There was no cause for the Sub-Divisional
Magistrate, Ropar to make out a false case of test
identification parade conducted on 11.4.2001.
12. Having heard learned counsel for the parties, we are c
of the opinion that the High Court committed a serious error in
passing the impugned judgment insofar as it entered into the
realm of appreciation of evidence at the stage of the framing of
the charges itself. The jurisdiction of the learned Sessions Judge
while exercising power under Section 227 of the Code of D
Criminal Procedure is limited. Charges can be framed also on
.-.' the basis of strong suspicion. Marshalling and appreciation of
evidence is not in the domain of the Court at that point of time.
This aspect of the matter has been considered by this Court in
State of Orissa Vs. Debendra Nath Padhi -(2005) 1 SCC 568 E
wherein it was held as under:
"23. As a result of the aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or
taking cognizance the accused has no right to produce
any material. Satish Mehra's Case holding that the trial F
~ :- Court has powers to consider even materials which the
\
accused may produce at the stage of Section 227 of the
Code has not been correctly decided."
13. Learned counsel appearing on behalf of the respon-
G
dents, however, would submit that keeping in view the fact that
the deceased was both deaf and dumb, no reliance can be placed
upon the first purported dying declaration recorded by the learned
Executive Magistrate, Chamkaur Sahib. If that be so, no reliance
can be placed on the second dying declaration also.
H
l
i...
888 SUPREME COURT REPORTS {2008] 14 S.C.R.
A 14. It appears that the observation of the High Court that
the deceased was both deaf and dumb is not based on any l' ~
material. Apart from the other materials on record, as indicated
by us heretobefore, even the respondents in their Memo of Re- ~
vision had described the deceased merely as dumb and a para-
B lytic persen and not a deaf person.
15. Furthermore, it was not the stage where the High Court
would prefer one dying declaration to that of the other. lndisput-
ably, in her first dying declaration the deceased had identified
respondents - Balwinder Singh and Daljit Singh. They were
c brought to the hospital for the purpose of identification and the
learned Executive Magistrate recorded her statement on the
basis of the signs made by her. ~
16. In this view of the matter, we are of the opinion that the
impugned judgment cannot be sustained. It is set aside accord-
D
ingly. The appeals are allowed. However, all the contentions of
the parties shall remain open. The learned trial Judge is directed
to dispose of the Sessions Case pending before him as expe-
~
ditiously as possible.
E R.P. Appeals allowed.
1~
>-'
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