Holding

A dying declaration recorded before a Judicial Magistrate, backed by a doctor's certificate that the patient was conscious, is admissible and reliable, and does not suffer any infirmity.

Summary

Surinder Kumar's second wife, Sheema, died from severe burn injuries. Kumar and his son were convicted of murder under Sections 302 and 34 of the IPC and of cruelty under Section 498‑A, based primarily on a dying declaration recorded before a Judicial Magistrate, with a doctor's certificate that she was conscious. On appeal, the Supreme Court examined whether the dying declaration was infirm due to alleged contradictions and the manner in which the doctor recorded the statement. The Court held that the doctor's certification and the magistrate's recording inspire confidence and that there is no infirmity in the dying declaration. It also noted that the doctor's note likely reflected the husband's account, but this does not affect the admissibility of the declaration. Consequently, the Court dismissed the appeal, upholding the convictions.

Issues considered

Whether a dying declaration recorded before a Judicial Magistrate, supported by a doctor's certificate of consciousness, is admissible and reliable.
Whether contradictory statements by the deceased render the dying declaration untrustworthy.
Whether a doctor's record stating the cause of injury can be considered a statement of the deceased.
Whether convictions under Sections 302, 498‑A and 34 IPC can be sustained on the basis of such a dying declaration.

Legislation cited

Indian Penal Code, 1860s. 302, s. 34, s. 498-A

Subjects

dying declarationadmissibility of evidenceSection 302 IPCSection 498-A IPCSection 34 IPCmedical certificationcriminal appeal

Judgment

A SURINDER KUMAR AA')) ANR.
v.
STATE OF HARYANA

APRIL 28, 1992

B (KULDIP SINGH AND M. FATHIMA BEEVI, JJ.]

Indian Penal Code, 1860:

Sections 34, 302 and 498-A~eath on account of bum injurie~g
C declaration made by deceased in hospital before Judicial Magistrate-Doctor
certifying that patient remained conscious at the time of recording of state-
ment-Whether there was any infirmity in recording of dying declara-
tion-Conviction based on such dying declaration-Whether justified.
---
The first appellant's second wife died of bum injuries sustained by
D her. The first appellant and his son from his first wife were tried for the
murder of the deceased and also for subjectint; her to cruelty. The trial
court convicted both of the them under sections 302 and 498-A read with
S~ion 34 of the Indian Penal Code on the basis of the dying declaration
made by the deceased before the Judicial Magistrate. The High Court, on
E appeal, maintained their conviction and sentence under Section 302 ~d
with Section 34 Indian Penal Code but acquitted them of the offence under
Section 498-A read with Section 34.

In the appeal, by special leave, on behalf of the appellants-accused
it was contended that the statement made by the deceased before the
F doctor, who had admitted her in the hospital, giving cause of her death as
burn injuries sustained by her while cooking food on gas stove was the
earliest version and amounted to a dying declaration, and there being two
contradictory statements made by the deceased, the dying declaration
recorded by the Magistrate was not worthy of credit and conviction of the
G appellants could not be based on it.

Dismissing the appeal, this Court,

HELD : 1.1. The conviction of the appellants is based on the dying
declaration made by the deceased in the hospital before a Judicial
H Magistrate. The doctor certified that the patient remained conscious
910
SURINDER KUMAR v. STATE 911

during the period her statement was recorded. The Judicial Magistrate A
recorded a certificate that the statement of the deceased was recorded by
him and it contained true version of her statement and she had thumb
marked the same. 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. [912 C-D]
B
1.2. It was the first appellant who brought his wife, deceased, to the
hospital and be 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. Therefore, what was recorded by the
doctor could not be the version of deceased herself. Had it been so, the C
doctor may not have used the word "alleged" while recording that the
patient received injuries while cooking food on gas-stove. The doctor, did
not mention anywhere of the record about the state of mind of the
deceased, whether she was conscious or not. It is more probable that what
was recorded by the doctor was at the instance of the husband who was
accompanying his wife at the time of Ker examination by him. Therefore, D
the courts below have rightly rejected the defence plea that what was
recorded by the doctor was at the instance of the deceased. The trial court
has also rightly rejected the evidence of defence witnesses. There is no
infirmity in the judgments of the courts below. (912 G-H, 913 A-CJ
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
150of1992.

From the Judgment and Order dated 21.8.1991 of the Punjab and
Haryana High Court in Criminal Appeal No. 210-DB of 1989.
F
U.R. Lalit, B.S. Katia! and S. Muralidhar for the Appellants.

Ms. lndu Malhotra for the Respondent.

J The follo\\ing order of the Court was delivered :
_..
Sheema, second wife of appellant Surinder Kumar, sustained 70 per G
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 Sections 302/34 and 498-A/34 of the Indian Penal Code. They H
912 SUPREME COURT REPORTS . (1992) 2 S.C.R.

A 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
Section 302/34 Indian Penal Code. They were, however, acquitted by the
High Court of the offence under Section 498-A/34 Indian Penal Code. This
appeal by way of special leave is by the appellants against their conviction
B and sentence.

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
.......
{
C 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
D declaration by the Magistrate and the same inspires confidence.

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.
E 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 injuries while cooking food on gas-stove. 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
F him there being two contradi\:tory statements by the deceased the dying
declaration recorded by the Magistrate is not worthy of credit and convic-
tion 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
G 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 gas-stove. Dr. Tandon did
not mention anywhere on the record about the state of mind of Sheema.
H It was nowhere recorded-whether she was conscious or not. It is difficult
SURINDER KUMAR v. STATE 913

to believe that the doctor made his deposition in the court on the basis of A
bis 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 Tandon was at the instance of the deceased. We see no
ground to differ with the conclusions reached by the courts below. · B
Mr. Lalit has further argued that the ~vidence of defence witnesses

--
}
was not taken into con~ideration by the High Court. We have read the
statements of the ,defence witnesses along with Mr. Lalit. We are not
impressed by their testimony. The trial coun rightly rejected their evidence.

We see no infirmity in the judgments of the courts below. We agree
C

~ with the reasoning and the conclusions reached by the High Court.
We, therefore, dismiss the appeal.

N.P.V. Appeal dismissed.