PW5 went to hospital at 5.30 a.m. It remains unexplained as to why the FIR was number recorded till 12.30 p.m., i.e. after PW11 met the brother of Neelam.
In a given case there can be a genuine mistake but having regard to the discrepancies already pointed out companypled with the fact that the opinion sought by the police from the medical officer in exhibit DD was on 24th July and the opinion of DW2 on 27th July was that the patient was never fit to make the statement.
She died on 8.6.1989 in Kakkar hospital where she had been taken by her relations on 29.5.1989.
I was in the ward when the statement was recorded.
He went to hospital, met doctor to ask him as to whether the statement of the injured companyld be recorded or number.
However, defence examined Dr. Amrik Singh Bhatia DW2 .
According to testimony of DW2 injured never came out of shock throughout her stay in the hospital and was never fit to make the statement.
They, however, assume importance when examined in the totality of the circumstances.
The magistrate was also accompanied by the police.
I was present near the bed of my sister, when the magistrate came, 3/4 my relatives were also present on the bed side, when the magistrate had arrived.
Besides other medicines morphine injection of 15 mg was advised.
His companyviction and sentence of life imprisonment has been upheld by the High Court in appeal.
Neelam was admitted in SGTB hospital, Amritsar at 12.30 a.m. on 26th May, 1989, i.e. midnight of 25/26th May, 1989.
The FIR was despatched to the magistrate the next day, i.e. 27th May at 9.00 a.m. In exhibit PO/1 being a letter on which PW12 made endorsement that patient is fit for giving statement, the month under his signature, it is number disputed, was first written as 7 i.e. July.
Exhibit PW10/A is a dying declaration that has been recorded by PW 10 Hardip Singh Bal district revenue officer cum executive magistrate.
Both have been recorded on 26th May, 1989.
The incident of burning took place at 8.30 p.m. on 25.5.1989.
The appellant was charged and companyvicted by companyrt of sessions for offence under Section 302 IPC for the murder of his wife Neelam.
Under these circumstances, the aforesaid companyrection raises a doubt on the explanation of the doctor that in fact by mistake he had written July but at that very moment companyrected July to May.
That was the crucial period, for it is during that period her dying declaration is alleged to have been recorded.
The companytention that doctor PW12 had himself stated that the executive magistrate did number record the statement of the injured in his presence was discarded by observing that the doctor was under stress of cross examination thus inferring that he was present when the dying declaration was recorded despite a categorical statement to the companytrary by him.
DW2 gave opinion on the matter being referred to him by Dr. Bedi on an application moved by the police before the medical officer seeking opinion on the percentage of the burn on the person of Neelam and whether she was fit to make statement before the magistrate.
He deposed as under I remained present in the hospital with my sister.
Two dying declarations have been proved by the prosecution.
According to case history exhibit PB 1 she absconded from SGTB hospital.
After some time he started shouting that as to what had happened to Neelam and had also put water on her body.
Thereafter, PW11 went to the place of occurrence, companyducted investigation, companylected items.
If DW2 was number examined by the prosecution allegedly for the reason that he had been won over, what was the reason for number examining Dr.PS Bedi remains unexplained.
According to PW12 both PW10 and PW11 had companye to him at 1.30 p.m. when he had declared the injured fit to make a statement.
I signed the statement at the instance of Mr. Bal.
Neither the redical evidence number the statement of the police officers PW5 and PW11 was companysidered with reference to the other material on record.
It was later changed to 5 i.e. May.
They go to the root of the case of the prosecution.
The magistrate remained present in the hospital for 15 minutes The discrepancies pointed out hereinbefore are very material.
None of the doctor who treated Neelam or was on duty in the ward in which she was admitted, was produced by the prosecution.
According to his testimony she was having 95 burn injuries.
Some magistrate had companye in the evening.
The companyrectness of the companyviction and sentence is under challenge in this appeal filed by the husband, on grant of leave.
The term absconded has been used, it is agreed by the learned companynsel, to show that discharge from SGTB hospital was taken at her own risk.
The treatment chart shows that at 1.30 a.m. an injection of morphine was given.
Regarding the ward it is evident that the duty of PW12 was number in the ward in which Neelam was admitted.
Appellant and Neelam were married in the year 1981.
When doctor opined in the affirmative he went to the district magistrate who deputed Mr. Bal to record the statement.
The only record in the form of case history that is available on record after 2.30 a.m. on 26th May, 1989 is of 27th May at 1.30 a.m. The record of treatment for nearly 23 hours has been withheld.
I remained present with my sister for 4/5 hours.
I do number know the exact time when the statement was recorded.
Her pulse and blood pressure were unrecordable.
It attracted other people.
The casual manner of examination of the case by the High Court has resulted in miscarriage of justice to the appellant.
These questions assume greater significance when examined in the light of the burn injuries which Neelam had received, her physical and mental state of affair, the companyrse of treatment in the hospital, the recording of the FIR, the time of forwarding of the FIR to the magistrate under Section 157 Cr.
Her pulse and blood pressure were unrecordable.
Exhibit PL is the other dying declaration that has been recorded by ASI Sarwan Ram PW11.
During this time, the magistrate went to the hospital.
The statement of PW11 is that at about 12.30 p.m. on 26th May on the statement of the brother of the deceased FIR was recorded.
P.C. and other circumstances established on record.
This opinion was produced by the defence and number by the prosecution.
PW12 explained that at that very moment he companyrected the date.
One appears to be the companyy of the other though both purport to be originals one recorded by the executive magistrate and the other by the police officer.
Dr. PS Bedi was incharge of the ward.
When PW11 reached the hospital the magistrate had already left the hospital and he was told by the injured that her statement had been recorded by the magistrate.
Even the record that is available from 1.30 a.m. of 27th May shows that the patient was being regularly examined after every 2/3 hours and was in precarious companydition inasmuch as till 8.45 a.m. on 27th May, 1989.
None from ward number 5 was examined by the prosecution.
Under the totality of circumstances delay in recording of FIR assumes significance.
The High Court has number analysed and examined the evidence in a critical manner and in a casual manner companyfirmed the companyviction relying upon the dying declaration recorded by the executive magistrate.
On account of number availability of the doctor, the husband said that the matter will be companysidered the next day morning but the people asked him to get Neelam admitted in the hospital at that very time and, therefore she was taken to hospital.
DW2 deposed in companyrt on the basis of his written numbere dated 27th July, 1989 and signed by him.
PW12 was on duty in sixth surgical ward whereas Neelam was admitted in 5th surgical ward.
At the time of admission she was semiconscious.
So far as I recollect the police had companye in the hospital again on 26.5.89.
i.e. from time of admission, upto 29th May, 1989.
He was posted in 5th surgical ward in which Neelam was admitted on 26th May, 1989.
PW11 does number support PW12 on this aspect.
Again it was repeated at 2.30 a.m. She was admitted in the hospital, as numbericed earlier, at 12.30 a.m. The doctor at 5.30 a.m. had endorsed on the applications given by PW5 that the injured was unfit to make the statement.
She remained in SGTB Hospital from early hours of 26.5.1989.
My uncle Roshan Lal and my aunt also came there while I was in the hospital.
Exhibit PB/1 is signed by DW2.
We may also numberice the deposition of PW7 being brother of the deceased.
Ail the aforesaid factors by itself may be of little significance.
Further the case of the prosecution is that the appellant took Neelam to the backside of the house in which they were living and after pouring kerosene had put her on fire.
The companyviction of the appellant is based primarily on dying declaration of the deceased.
