Rajasthan High Court - Jaipur
Mst. Amina vs State Of Rajasthan on 6 August, 2002
Equivalent citations: 2002CRILJ4431, II(2003)DMC515, 2002(4)WLC409
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. This appeal Under Section 374 of the Code of Criminal Procedure, 1973 is directed by Mst Amina w/o of Mohd. Ismile, ,at present in District Jail, Sikar, against the judgment of conviction and order of sentence dated 19th of September, 1995 of the Additional Sessions Judge, Sikar, in Sessions Case No. (12/1995) 09/1995. The Additional Sessions Judge, Sikar under his judgment of conviction and order of sentence, convicting the accused appellant for the offence punishable Under Section 302 of the Indian Penal Code and sentenced her to life imprisonment with a fine of Rs. 1,000/- in default of payment thereof she has to undergo further six months' rigorous imprisonment.
2. The prosecution case is that the deceased Mst. Zarina gave a 'Parcha Bayan Ex. P. 5 on 19th September, 1994 to Shri Mahendra Singh, Dy. S.P. Sikar (P.W. 9) at Shri Kalyan Hospital, Sikar in FSW Bed No. 21 at 9.40 a.m. On the basis of this 'Parcha Bayan' Ex. P5 of Mst. Zarina First Information Report Ex. P. 13 chalked out and Case No. 438/94 was registered at Police Station, Kotwali, Sikar against the accused appellant Under Sections 307 and 498-A, IPC.
3. As per the case of prosecution, Mst. Zarina was married in her early age. From last 7-8 years she was coming to the house of her in-laws. She was having a daughter aged 4-5 years, whose name is Anisa. Her husband was out of India from last one year. She was living in her parents' house for last two years as her husband Abdul Rahim and her mother-in-law Mst. Amina (accused appellant) used to give her beating. Before five days of this incident her father in-law Mohd. Ismile brought her to in-laws' house. Her father in-law was not giving any beating toiler.
4. On the day of incident in the morning she was sleeping in the room on first floor on Gadda'. Her mother-in-law Mst. Amina accused appellant poured kerosene oil on her and put fire by litting a match stick. Mst. Zarina cried and her father-in-law came running there. She in the state of burning came down from the room. The father-in-law has taken her to the hospital. Her daughter Anisa was at her parents house. The mother in-law Mst. Amina-accused appellant used to beat her for the reason that she belonged to a poor family and had not brought money and she put fire to her after pouring kerosene oil.
5. This 'Parcha Bayan' Ex. P5 of deceased Mst. Zarina, was recorded on that day at 9.40 a.m. The police had drawn the proceedings on this 'Parcha Bayan, it is noticed therein that the condition of deceased Mt. Zarina is serious, her dying declaration is to be got recorded by the concerned Judicial Magistrate.
6. On 19th September, 1994, Shri Mahaveer Prasad Sharma, RJS Additional Civil Judge (Junior Division) and Magistrate, I Class No. 1, Sikar at S.K. Hospital at 11.05 a.m. recorded the dying declaration of deceased Mst. Zarina, who was admitted in FSW Bed No. 21.
7. During investigation of the case, the Investigating Officer Shri Mahendra Singh (P.W. 9) has prepared Ex. P. 1 site plan, Ex. P. 2 seizure memo of one cloth of Tilak of deceased Mst. Zarina, Ex. P. 3 seizure memo of one Salwar one Jamfar and one Loongadi of Mst. Zarina. The accused appellant was arrested on the same day. Ex. P. 4 her arrest and personal search memo have been prepared. Dr. G.R. Tan war, (P.W. 7) Medical Jurist of Shri Kalyan Hospital, Sikar has prepared Ex. P6 injury report of deceased Mst. Zarina. Deceased Mst. Zarina for the treatment was taken from S.K. Hospital, Sikar to S.M.S. Hospital, Jaipur where she died on 19th of November, 1994. Post-mortem on her body has been conducted by Dr. P,N. Mathur, (P.W. 12) and he prepared post-mortem report Ex. P. 10. Inquest report (Ex. P. 9) has been prepared. In the case the offence punishable Under Section 302, IPC has been added after her death.
8. After completing the investigation, the challan has been filed against the accused appellant for the commission of offence punishable Under Sections 302 and 201, IPC in the Court of Judicial Magistrate, 1st Class, Sikar. The Judicia Magistrate, 1st Class, Sikar has committed the case to the Court of Sessions on 16th of January, 1995.
9. The Additional Sessions Judge, Sikar on 9.2.1995 has though declined to frame the charge against the accused appellant for the offence punishable Under Section 201, IPC, but charge has been framed against her for the commission of offence punishable Under Section 302, IPC.
10. The prosecution to prove its case examined following witnesses : P.W. 1 Smt. Salma, the mother of the deceased.
P.W. 2 Chand Mohd., brother of deceased.
P.W. 3 Badruddin, Motbir of site plan, Ex. P.1 seizure memo of one cloth of Tilak of deceased, Ex. P. 2 seizure memo of one Salwar, one Jamfar and one Loongadi of the deceased, Ex. P. 3 arrest and personal search memo of accused Ex. P. 4.
P.W. 4 Mohd. Yusuf, neighbour and Motbir of documents Exs. P. 1, P. 2 and P. 3.
P.W. 5 Salim, nephew of mother of deceased.
P.W. 6 Dr. Radha Choudhary, Medical Officer, S.K. Hospital, Sikar and the witness of documents Ex. P. 5 P.W. 7 Dr. G.R. Tanwar, Medical Jurist, S.K. Hospital, Sikar and the witness of documents Ex. P. 6, injury report of the deceased, Ex. P. 7 Ex. P. 8 letter of Dy. S.P. asking opinion about the deceased condition, the medical opinion given by him in response to documents Ex. P. 7.
P.W. 8 Kanhaiya Lai, Additional Superintendent of Police, Sikar the witness of documents Ex. P4, arrest and personal search memo of accused appellant.
P.W. 9 Mahendra Singh, Dy. S.P., the Investigating Officer.
P.W. 10 Mahaveer Prasad Sharma, Judicial Magistrate, 1st Class, Sikar who recorded the dying declaration of the deceased Ex. P. 14 and the witness of the documents Ex. P. 12 and Ex. P. 15 P.W. 11 Mali Ram, HC No. 2040, Police Station, Moti Doongri, Jaipur witness of documents Ex.P9 inquest report and Ex. P11 receipt of delivering the dead body of the deceased to her brother.
P.W. 12 Dr. R.N. Mathur, Medical Jurist, S.M.S. Hospital, Jaipur who conducted the post-mortem of the deceased (Ex. P. 10).
The prosecution produced following documentary evidence :
Ex. P. 1 Site plan with its description Ex. P. 2 Seizure memo of one cloth of Tilak of deceased Smt. Jarina Ex. P. 3 Seizure memo of one Salwar, one Jamffar and one Loogadi of Smt. Jarina Ex. P. 4 Arrest and personal search memo of accused Smt. Amina Ex. P. 5 Parcha Bayan of Smt. Jarina Ex. P. 6 Copy of Injury report of Smt. Jarina Ex. P. 7 Terir CO.
Ex. P. 8 Fitness certificate of Doctor Ex. P. 9 Inquest report of deceased Jarina Ex. P. 10 Post-mortem Report Ex. P. 11 Delivery of the dead body of Jarina Ex. P. 12 Request to Civil Judge to record the statement (dying declaration) of Smt. Jarina from the S.H.O., PS. Simar Ex. P. 13 First Information Report Ex. P. 14 Dying declaration of Smt. Jarina Ex. P. 15 Forwarding letter sending of dying declaration to C.J.M., Sikar by A.C.J. (Jr. Div.) and J.M. No. 1, Sikar.
The statement of the accused appellant Under Section 313 Cr. P.C. were recorded on 14.6.1995.
In the defence, the accused appellant has produced three witnesses viz., (1) Abdul Wahab D.W. 1 (2) Mst. Batul D.W. 2 (3) Mohd. Ismile D.W. 3.
Following documentary evidence was produced in defence :
(1) Statements of Shri Salim recorded Under Section 161 Cr.P.C. Ex. P. 1 (2) Ex. D. 2 to Ex. D. 6 photographs (3) Ex. D. 7 to Ex. D. 126 cash memos of the purchase of medicines.
11. Learned Counsel for the accused appellant challenging the judgment of the learned Additional Sessions Judge, Sikar contended that whole of the prosecution case is concocted one. The prosecution has failed to prove its case beyond reasonable doubt against the accused appellant. In the facts of this case and the evidence came on the record the dying declarations Ex. P. 5 (Parcha Bayan) and Ex. P. 14 could not have been relied upon.
12. It is submitted that these dying declarations are surrounded by the suspicious circumstances and unless the corroborative evidence is there, the same could not have been made basis for convicting and sentencing the accused appellant for the commission of offence punishable Under Section 302, IPC
13. Referring to the documents Ex. P. 5 and Ex. P. 14, the learned Counsel for the accused appellant pointed out the contradictions and submitted that it demolishes the case of the prosecution. The learned Counsel for the accused appellant urged that these dying declarations Ex. P. 5 and Ex. P. 14 are totally false. Referring to the statements of witnesses P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 it is submitted that their conduct is wholly unnatural and they are not the trustworthy witnesses. The possibility of false implication of the accused appellant in the case cannot be overruled. As per the prosecution case the relations in between the deceased and the accused appellant were strained.
14. It has next been contended that Mst. Zarina, died about seven weeks, after the incident in the S.M.S. Hospital, Jaipur. The members of the accused family tried their level best to save her. The conviction of the accused appellant thus Under Section 302, IPC is bad in law. Lastly, it is contended that the death of the deceased was due to septicaema i.e. septic and it has resulted because of negligence of doctors for which the appellant could not have been punished. Carrying this contention further it is submitted that taking everything worst against the accused appellant, it is not the case which goes beyond Section 304Part-II, IPC.
15. In support of the contentions, the learned Counsel for the accused appellant placed reliance on the following decisions :
(1) Rasheed Beg and Ors. v. State of Madhya Pradesh, AIR 1974 S.C. 332.
(2) Munnu Raja and Anr. v. The State of Madhya Pradesh, AIR 1976 S.C. 2199.
(3) Khera and Ors. v. The State of Rajasthan, Cr.L.R. 1990 (Raj.) 623.
(4) Rajangam v. State (Tamil Nadu), Cr. L.J. 1993 S.C. 3680.
(5) Ratan Lal and Ors. v. State of Rajasthan, 2002 (1) Cr. L.R. (Raj.) 354.
16. Mr. S.S. Rathore, learned Public Prosecutor for the State in contra contended that it is a case where mother-in-law has killed her daughter-in-law by burning her. The father-in-law or any other relative has not been involved which fact goes to show and overruled any possibility of false implication of accused appellant in the case. Referring to the documents Ex. P. 5 and Ex. P. 14, it is submitted that no doubt whatsoever on the statements of deceased can be raised. It is not necessary that the certificate of fitness of the deceased before recording her statements of the Medical Officer is required on the documents itself. Certificate regarding fitness of the deceased to give statements has been taken from doctor and reference has been made to Ex. P. 7 and Ex. P. 8.
17. Mr. Rathore, submitted that the accused has cleaned the site, the place of incident and thus many things could not have been recovered, He made reference to the documents Ex. P. 1 site plan and more particularly, the note appended to it. Lastly, in his submission, it is a clear case of killing of the daughter-in-law by the, mother-in-law. The case has been proved beyond reasonable doubt by the prosecution and the contentions raised by the learned Counsel for the accused appellant that at the most the case falls Under Section 304 Part -II, IPC is wholly baseless.
18. We have considered the rival contentions raised by the learned Counsel for the parties and carefully gone through the record of the case and judgment and order of the learned Trial Court.
19. The learned Trial Court held accused appellant guilty of the commission of offence punishable Under Section 302, IPC on the basis of dying declarations of deceased Ex. P. 5 and Ex, P. 14.
20. Ex. P. 6 the injury report of Mst. Zarina dated 19th of September, 1994 prepared by Dr. G.R. Tanwar, (P.W. 7) Medical Jurist, Kalyan Hospital, Sikar reads :
"There is superficial and deep burn at face, neck. Both upper limbs, chest and breast anteriorly, abdomen anteriorly, both thigh anteriorly, blisters present at few places, skin blackish surrounding area radish.
Total burn area is 65% Smell of kerosene present by dry heat.
21. in the post-mortem report, the description of burns which were there on the body of the deceased has been given by Dr. P.N. Mathur (P.W. 12), Medical Jurists, S.M.S. Hospital, Jaipur, who conducted the same are as under ;
I to IV degree burns on face, neck anteriorly and laterally. Chest anteriorly and laterally, abdomen anteriorly and laterally except few patches left across midline lower 1 /3rd anteriorly, Lt. upper limb, Rt. upper limb (Rt. hand, fit, forearm anteriorly, Rt. shoulder and upper l/3rd arm antero medially, both thighs upper 3/4th anteriorly and medically involving about 45% of total body surface area. Burns on face and both hand are almost healed and at rest of places are partially healed unhealthy granulation tissue and greenish yellow pus.
22. The remarks of the Medical Officer regarding the cause of death in the report are as under :
The cause of death is septicaemia shock as a result of burns, ante-mortem and self-sufficient to cause death in ordinary course of nature.
23. Parcha Bayan and dying declaration are two separate and distinct documentary evidence in criminal case. But, there is no law that Parcha Bayan cannot be taken as a dying declaration of the deceased. In case an injured died after his Parcha Bayan is taken, it can be taken to be a dying declaration and, accordingly it can be taken so in a given case. This dying declaration made by the deceased stand to the tests of its reliability as laid down by Hon'ble the Supreme Court in catena of decisions. The statements of Smt. Jarina (Ex. P. 5) were recorded by Mahendra Singh, Dy. S.P., Sikar (Camp S.K. Hospital, Sikar). At that time it was not taken as if her dying declaration is being recorded. From the police proceedings drawn in the Parcha Bayan we find that the condition of deceased Jai'ina was serious and her dying declaration was to be recorded by the Judicial Magistrate. On the very date the police officer got arranged for recording of the dying declaration of the deceased and the same was recorded by the Judicial Magistrate.
24. The learned Counsel for the appellant has led much emphasis on the fact that Dr. Radha Choudhary is a created witness to this Parcha Bayan (Ex. P. 5). Having closely and carefully scrutinizing the statements of Dr. Radha Choudhary this contention of the learned Counsel for the accused appellant is difficult to accept. Dr. Radha Choudhary was on duty on that date in the hospital, may be in outdoor. She came to the ward. We do not find any exaggeration in her statements. We also do not find anything objectionable in the act of the Dy. S.P. of taking the statements of deceased in the presence of Dr. Radha Choudhary and taking signature of Dr. Radha Choudhary on the Parcha Bayan (Ex. P. 5). The learned Counsel for the appellant has failed to show and point out any personal interest of this lady doctor or enmity or other adversity against accused appellant. We find her statements most natural. Her (lady doctor) presence in the ward cannot be doubted. Where she stood by patience during the course of recording of her statements by Dy. S.P., it is not objectionable and that too to the extent where her statements are to be discarded and to disbelieve this dying declaration. It is hardly of any substance and relevance that she was not on duty in the ward. She went to the ward is not that much serious where her statements are not to be relied upon. Having gone through the statements of Dr. Radha Choudhary (P.W. 6) and Mahindra Singh, Dy. S.P. (P.W. 9) we are satisfied that the deceased was fit to give the statements recorded in her Parcha Bayan (Ex. P. 5).
25. The learned Counsel for the appellant contended that this Parcha Bayan was recorded in the presence of relations of the deceased and there is all possibility of tutoring or prompting to the deceased.
26. Dr. Radha Choudhary (P.W. 6) in her cross-examination, stated that she does not know of other attendants of the deceased. However, some attendants were standing nearby the cot of the deceased.
27. From the statements of Mohd. Ismile (D. W. 3) and it is also the contention of the learned Counsel for the appellant, it comes out that the deceased was taken to the hospital by him. It is the contention of the learned Counsel for the appellant that the parents of the deceased did not take care of her. It was her father-in-law and other members of her in-laws, who looked after her and remained in the hospital for all the period during which she remained in hospital.
28. Having considered all aspects of the matter and looking to this contention of the learned Counsel for the appellant in the light of the statements made by Smt. Salma (P.W. 1) we are satisfied that if anybody was standing nearby the bed of the deceased, he or they may be from her in-laws' side. Where contention of the learned Counsel for the appellant is examined with reference to the statements of Smt. Salma (P.W. 1), it is not tenable. She admitted that they reached the hospital at about 10-11 a.m. Police had reached the hospital before they reached. Parcha Bayan of deceased was recorded at 9.46 a.m. As per Dr. Radha Choudhary (P.W. 6), the statements of deceased might have been completed within 15-20 minutes, on a conjoint reading of the statements of Smt. Salma (P.W. 1), and Dr. Radha Choudhary (P.W. 6) with the Parcha Bayan of deceased (Ex. P. 5) it is difficult to accept that the same has been recorded in the presence of any of relations of the deceased.
29. The contention raised that the police has got the signature of Dr. Radha Choudhary (P.W. 6) on the Parcha Bayan afterwards, is wholly untenable. This suggestion was not put to Dr. Radha Choudhary during her cross-examination. Otherwise also we fail to see what for the police would have got this document signed afterwards by Dr. Radha Choudhary (P.W. 6).
30. The learned Counsel for the appellant has failed to show any decision that certificate of medical doctor regarding fitness of the deceased to give the statements, is to be recorded on the document itself. Parcha Bayan was recorded by the police officer. This way if the matter is looked into, it is difficult to accept that it was got signed by Dr. Radha Choudhary (P.W. 6) afterwards. Dr. Radha Choudhary (P.W. 6) was in the ward where the deceased was admitted and she was present during the course of recording of the statements of the deceased.
31. Ex, P. 14 is the dying declaration of the deceased recorded by the Magistrate. The learned Counsel for the accused appellant contended that thereon the certificate of doctor with regard to the fitness of the deceased to give her statements, is not there. It is urged that mere say of the Magistrate that the doctor was there to certify re fitness of the deceased to give her statements, is not enough. The dying declaration recorded without certification by doctor regarding the fitness of the deceased to give her statements, is of no value and reliance could not have been placed thereon to punish the accused appellant.
32. Mahaveer Prasad Sharma, Judicial Magistrate, (P.W. 10) who recorded the dying declaration of the deceased, stated that before recording her statements he had taken the certificate of the Medical Officer Dr. G.R. Tanwar regarding the fitness of the deceased to give her statements. He has given his opinion vide Ex. P. 8, which reads "She is fit to give statement". This document Ex. P-8 is a certificate given at 11.00 a.m. by the doctor and in the document Ex. P. 14 (dying declaration) the time is given 11.05 a.m.
33. Dr. G.R. Tanwar (P.W. 7) stated that before recording dying declaration the Magistrate has taken his opinion regarding the fitness of the deceased to give her statements. On this, he gave his opinion vide Ex. P. 8 certifying her therein to be fit to give the statements.
34. From the document Ex. P. 8, statements of Dr. G.R. Tanwar (P.W. 7) and Mr. Mahaveer Prasad Sharma (P.W. 10), Judicial Magistrate, we are satisfied that before recording the statements of the deceased the Judicial Magistrate had taken all care and precautions to take the medical opinion regarding fitness of the deceased to give statements. This certificate of fitness to give statements has been given immediately before the Judicial Magistrate started to record the statements of the deceased. In document Ex. P. 14 name of doctor, who has given certificate Ex. P. 9 is mentioned. The judicial officer only after taking the medical opinion certifying therein deceased to be fit to give statements, he recorded the statements of deceased (Ex. P. 14). Before recording the dying declaration Judicial Magistrate, is to take medical expert's opinion regarding the fitness of the person concerned to give statements. It is not the law nor any authority has been cited by the learned Counsel for the accused that it should have been recorded on the sheet of statements (dying declaration). The substance of the matter, and not the form, is important. Medical expert's opinion is necessary for the satisfaction of concerned Judicial Magistrate who is to record the dying declaration of the deceased.
35. There is a fallacy in this argument of the learned Counsel for the appellant that this certificate of fitness of deceased to give statement should have been on the document itself. Before the Magistrate starts to record the dying declaration of the deceased, the certificate of the medical expert regarding fitness of the deceased to give statements should have been obtained and then only he could have proceeded with his job. This certificate regarding fitness of the person concerned to give statements whose dying declaration is to be recorded by Judicial Magistrate, may be on the dying declaration itself or it may be in the form of separate certificate as what it is the case here. What is required by law is to be followed in the case is to obtain a medical certificate of doctor regarding fitness of the person concerned, whose statements arc to be recorded, to give statements (dying declaration) to the Magistrate. This requirement is fulfilled in spirit and substance in this case, document Ex. P. 8, the certificate given by Dr. G.R. Tanwar (P.W. 7) certifying thereunder Smt. Jareena is fit to give statements. Having gone through the statements of Dr. G.R. Tanwar (P.W. 7) and Shri Mahaveer Prasad, Judicial Magistrate, (P.W. 10) we are satisfied that the lady was in a fit condition to give statements (Ex. P. 14). The certificate-cum-opinion of the medical expert regarding fitness to give the-statements i.e. for recording her dying declaration by the Magistrate, on the statements itself or in the form of separate certificate, as to what has been done in this case, is not material. Material requirement is that the certificate is to be obtained before the statements are recorded of the deceased. How to take and in what form the opinion of medical expert regarding fitness of the person whose statements are to be recorded by the Magistrate, is a procedural matter and the Magistrate concerned is the best person to decide his own course or modality for taking thereof. In a given case only on the ground that this certificate is not there on the dying declaration itself, though evidence is available on the record that before recording thereof the medical expert's opinion has been taken regarding the fitness of the person concerned to give statements, it cannot be discarded or brushed aside. The dying declaration has to be recorded by the Magistrate taking all care that any person, possibly to tutor or prompt the deceased, may not be present nearby him. Considering the matter from this aspect and angle, otherwise also to avoid the presence of any other person nearby to the deceased, the Magistrate may not be unreasonable, unjustified or erroneous in his approach and action to take a separate certificate/medical opinion regarding the fitness of the person concerned to give the statements whose dying declaration is to be recorded.
36. Mahaveer Prasad Sharma (P.W. 10) has made a categorical statement that after taking the opinion of doctor regarding the fitness of the deceased to give statements, he recorded her statements (Ex. P. 14).
37. Reference here fruitfully may have to the decision of the Apex Court in Koli Chunilal Savji & Another v. State of Gujarat, VIII (1999) SLT 253 (SC)=JT 1999 (7) SC 568, wherein it has been held :
"The requirements are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. Though there has been no endorsement on the dying declaration record]ed by the Magistrate with regard to the condition of the patient but there has been an endorsement of Police Yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the Police Yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon.
The two dying declarations made by the deceased at two different points of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt."
38. We find from the statement of this witness (P.W. 10) that none of her relations was sitting nearby her bed. On being a question was put, the witness has made it clear that near to the deceased's bed her relations were not sitting. Her statements, as to what it comes out from Ex. P. 14 (dying declaration), were recorded while she was lying on bed No. 21 in female surgical ward of S. K. Hospital, Sikar. It being a general ward, there may be persons, attendants or visitors of other patients, but the important thing and note of which has been taken by this witness is that nearby to the bed of the deceased, nobody should have been present. In his statements though at one place it has come - he does not know whether any family member of deceased was present. But, from this statement of the PW-10 nothing turns in favour of the accused nor it can be taken to be of any substance or relevance or force to the extent to disbelieve and discard his statements. It is the defence of the accused appellant that throughout the period during which the deceased remained in hospital, member of her parent's family not remained with her. Thus somebody was present there, possibility of presence of accused's own person cannot be ruled out. From the statements of Mahaveer Prasad Sharma (P.W. 10) it cannot be inferred in favour of the accused that parents or the other relation of the deceased were present in hospital near to the Magistrate when he was recording the statements of the deceased.
39. The discrepancy regarding time of incidence in the documents Ex. P. 5 and Ex. P. 14 is not very material.
40. The matter yet can be examined from another aspect. Fact that the deceased was burnt in fire, is not in dispute. The defence witness, father-in-law (D.W. 3) stated that clothes of the deceased were burning and he, to overcome this fire, put blanket on her. Mohd. Ismile (D.W. 3) gives the time of incidence 6. 6.30 a.m. In Ex. P.5 it is stated to be morning time and in Ex. P. 14 the time is given 6-7 a.m. From documents Ex. P. 5, Ex. P. 14 and statements of Mohd. Ismile (D.W. 3) this discrepancy of time is not of any substance and material and, that too to the extent to disbelieve the case of the prosecution.
41. On the evidence which has come on record that the members of in-laws' family had taken the deceased to the hospital and tried their level best to save her life and that they gave blood to her and spent lot of money on her treatment, it is contended that there was no reason to set fire on deceased by the accused mother-in-law. The deceased got the burn injuries at her in-laws' house. The members of her in-laws' family would have made all efforts to get sympathy of the community or police, etc. and in furtherance thereof willingly or unwillingly they would have taken all these precautions, care and steps. False implication ordinarily of a person is not made by a person who is lying on death bed. There are catena of decisions of the Apex Court wherein it is observed that at the time of death, a person ordinarily do not falsely implicate a person in a criminal case. In addition to her mother-in-law who is accused, there are many more other members, in the family and in case the deceased was really desirous of falsely implicating nobody would have stopped her to implicate others also. The deceased did not implicate her father-in-law and to the contrary stated that she has no complaint against him. Husband has also not been implicated. This conduct of the deceased supports the prosecution case that she has made fruthworthy statements in the documents Ex. P. 5 and Ex. P. 14.
42. Learned Counsel for the accused appellant urged that in Ex. P. 5 it is stated by the deceased that the accused appellant poured kerosene on her and lit fire by match stick in the room at first floor whereas in Ex. P. 14 she stated that kerosene oil was poured by the accused appellant in the room at first floor and after that she came down stairs and in Chowk the accused appellant lit the fire by match stick, this discrepancy in her these two statements make both wholly unreliable.
43. Before dealing with this contention raised by the learned Counsel for the appellant, we would like to refer and consider the decisions on which reliance has been placed by him in support of his case.
44. In the case of Rasheed Beg v. State of Madhya Pradesh, (supra) Their Lordships of Hon'ble the Supreme Court held :
"As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the Investigating Officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbeg's condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So the Tahsildar Magistrate was called to record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S.P. Jain, however, recorded his dying declaration a little after the Tahsildar had gone back. The High Court has also noted another disconcerting circumstance. Majeed Khan, brother-in-law of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S.P. Jain. While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg Azizbeg, Rasheedbeg, Waheedbeg and Maseed Beg, in his dying declaration to Dr. S.P. Jain he has implicated Azizabeg, Waheedbeg, Basheerbeg, Majeed beg, Maseed beg, Noorbeg and Rasheedbeg. In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence. The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said : 'Whatever the condition of Arifbeg may be - whether there was some improvement or not - the condition when the Sub-Inspector took the declaration was not very good as also the condition when the doctor himself recorded the same. It may be that he gained consciousness. We feel that it will be safe to accept the names of the accused persons common in the dying declarations made to these two persons-Sub-Inspector and Medical Officer to hold that they took part in the assault on Arifbeg. The word 'feel' has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants ....'."
45. This case is not of any help to the accused appellant. It is clearly distinguishable on facts.
46. In Mannu Raja v. State of M.P, (supra) Their Lordships of the Hon'ble Supreme Court in para Nos. 5, 6, 7, 9 and 11 held :
"5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P14, being the First Information Report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a First Information Report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible Under Section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.
6. The High Court has held that these statements, are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: see Khaushal Rao v. State of Bombay, AIR 1958 SC 22, The High Court, it is true, has held that the evidence of the two eye-witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.
7. It was contended by the-learned Counsel for the appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death. There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history, Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring.
9. In regard to the second dying declaration, Ex. P. 14, the main objection of the learned Counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a judgment of this Court in Balak Ram v. State of UP, AIR 1974 SC 2165 at page 2175. The error of this argument consists in the assumption that the dying declaration was made to an investigating officer. The statement, Ex. P. 14, was made by Bahadur Singh at the police station by way of a First Information Report. It is after the information was recorded and indeed because of it, that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House Officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the Counsel relies has therefore no application.
11, We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. Ex. P. 2, which is said to have been, made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it also appears that some of the friends and relations of the deceased were also present at the time when the statement was-recorded'. But, if the Investigating Officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration, Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have, therefore, excluded from our consideration the dying declaration, Ex. P. 2, recorded in the hospital."
47. Having gone through the observations made by the Hon'ble Supreme Court in the case of Munna Raja (supra), we are of the view that there cannot be any quarrel with the oppositions laid down but we fail to see how this judgment is of any help to the accused appellant in this case.
48. In the case of Khera & Others v. The State of Rajasthan (supra), the Division Bench of this Court held that the dying declaration not inspiring confidence, no conviction can be based thereon. There cannot be any dispute on this proposition. But each case has to be decided on its own facts.
49. Decision of the Supreme Court in the case of Rajangam v. State (Tamil Nadu) (supra) is also of no help to the accused appellant. In that case, Their Lordship of the Supreme Court altered the conviction of the appellant therein Under Section 302 to Section 304 Part II, IPC. We fail to understand how this decision is of any relevance what to say of any help to the-accused appellant in the present case.
50. In the case of Ratan Lal & Others v. State of Rajasthan (supra), the prosecution failed to prove the dying declaration of deceased was true and free from all doubt. Executing Magistrate had gone to hospital alone and I was not associated by any doctor while recording the statement of the deceased. Persons who put their signature on dying declaration as witnesses, were not produced in trial. So, in the peculiar facts of that case, benefit was given to the accused appellants therein.
51. Dying declaration is admissible in evidence on the principle of necessity and it can form the basis of conviction where it is found to be reliable. It is in the nature of exception to the general rule forbidding hearsay evidence but admittance on the premises that ordinarily a person who is on death bed will not falsely implicate any innocent person in the commission of a serious crime. A dying declaration may form the sole basis for conviction without the need for independent corroboration which stands to the following tests-
(1) the person making it had the opportunity of identifying the person implicated;
(2) it is thoroughly reliable and free from blemish;
(3) the maker of the statement was in a fit state of mind;
(4) voluntarily made the statement on the basis of personal knowledge without being influenced by others; and (5) the Court, on strict scrutiny, finds it to be reliable.
52. This is a reliable peace of evidence and there is no rule of law or even prudence that it cannot be acted upon unless it is corroborated. It is like any other piece of evidence is an independent piece of evidence neither extra strong nor weak. It can be acted upon without corroboration if it is found to be otherwise true and reliable. The dying declaration Ex. P, 14 recorded by the Magistrate after taking prior opinion of medical expert regarding her fitness to make statements. Ex. P-5 has been recorded by a Gazetted Police Officer.
53. There cannot be any dispute that the deceased had the opportunity of identifying the accused appellant. She made her statement voluntarily on the basis of her personal knowledge without being influenced by any other which is borne out from the fact that she was taken to the hospital by her in-laws and her mother and her other relations reached to the hospital after her statement Ex, P5 were already recorded. If anybody was present there, it was her in-laws and their family members or friends. Thus, there was no question of her being influenced by others at the time when her statements Ex. P. 5 were recorded. Where tutoring or prompting was not there, naturally her statements (Ex. P. 5) made were voluntary.
54. Dying declaration (Ex. P. 14) was recorded by the Magistrate Mr. Mahaveer Prasad (P, W. 10) and as per his statements nobody was there to influence, teach or prompt that lady. It is to be stated at the cost of repetition that in the hospital her father-in-law, his friends and members of his family were there. We find from the record that defence side did not put to any prosecution witnesses in cross-examination that he or they were present while the statements of the deceased (Ex. P. 5) and dying declaration (Ex. P. 14) were recorded. Contrary to this, it is to be stated at the cost of repetition, the case of the defence is that the parents and their other family members , relations and friends did not take care and burden to spend time, money and services for the deceased in the Hospital. In the context of prosecution evidence and the case of the defence if the matter is looked into, we have no hesitation to hold that both statements of deceased (Ex. P5 and Ex. P. 14) are made voluntarily. We find from the statements of the prosecution witnesses that the mother-in-law and husband were harassing the deceased by giving beating and subjecting her to cruelties to pressurise her to bring money from her parents. They were having complaint that the deceased has not brought dowry. Most of the time of her marital life she remained with her parents. She was brought to her in-laws' house just few days before the incidence. The evidence of the prosecution and other circumstances which come on record, on the basis of this discrepancy in her two statements (Ex. P. 5 and Ex. P. 14), these cannot be discarded and to acquit the accused appellant of the charge Under Section 302, IPC. Broadly where the matter is looked into, though there appears this discrepancy what it is pointed out by the learned Counsel for the accused appellant in the statements, but on close and careful scrutiny of their voluntarily made statements before the Gazetted Officer of the police and a Judicial Magistrate and fact that ordinarily at such stage a person could not falsely implicate an innocent person, it is not very material.
55. Reference here may have to the decision in the case of Jai Karan v. State of (N.C.T. Delhi), JT 1999 (7) SC 514, wherein it has been held.
"A dying declaration is admissible in evidence on the principle of necessity and can form the basis for, conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. In order that a dying declaration may form the sole basis for conviction without the need of independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. .If, in the facts' and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence-neither extra strong nor weak - and can be acted upon without corroboration. If it is found to be otherwise true and reliable."
56. Reference may have to another decision of the Apex Court in Chandra Narain Yadav v. Shibjee Yadav and Ors., JT 1999 (9) SC 365, wherein Their Lordships held :
"A bare look at the impugned order of the High Court would indicate that the said Court committed gross error in coming to the conclusion that the dying declaration itself is not of such a compelling nature on which the conviction could be based in a charge of murder. As has been stated earlier, dying declaration was recorded by a Magistrate in the presence of a doctor who also had opined that the deceased was in a fit condition to make the statement. No reasons have been advanced as to why such dying declaration made by the deceased will not be acted upon. It is too well settled that a dying declaration, if found to be true and voluntary, can form the sole basis of conviction even without any corroboration."
57. Reference may have to yet another decision of the Apex Court in Gulam Hussain & Another v. State of Delhi, JT 2000 (8) SC 466.
58. Having gone through the statements of Smt. Salma (P.W. 1), Chand Mohammad (P.W. 2), Badruddin (P.W. 3), Mohd. Yusuf (P.W. 4) and Salim (P.W. 5) we do not find any unnatural conduct of these persons. The deceased was set at fire in the in-laws' house and her brother came to her in-laws' house and there is nothing unnatural in his conduct if he went back to his house to inform about the incident to his mother and other relations. They came to the hospital and made all efforts what were expected of them to save the life of the deceased. The accused appellant, who is the mother-in-law of the deceased, harassed the deceased for and in connection with dowry. The deceased was subjected to harassment and cruelty and it may be reason of her staying with parents. It is, no doubt, true that for this complaints were not made by the parents of the deceased but this inaction or omission on their part is not unnatural. Looking to the custom and culture prevailing in our society, there is nothing objectionable or unnatural on the part of the parents of deceased to see that she may stay at in in-laws' house so that whatever grievances, complaints ,or disputes are there with their deceased daughter, may come to normalcy by passing of time. There is nothing unnatural in the conduct of her parents that despite of the complaints made by the deceased, they insisted her to go to the her in-laws' house. This way what it is suggested and contended, if the parents, of the married daughter starts to act, we have our own reservation, seldom you will get a house where there is no matrimonial dispute and matrimonial case in the Court. This is normal and natural conduct of the parents to see and make efforts to bring the relations of daughter-in-law (their daughter) and mother-in-law to normalcy. This discrepancy whether the fire was put on the body of the deceased after pouring kerosene oil in the room at first floor or in Chowk, the fact remains that the incident was there. It is not much of substance and serious so as to disbelieve the dying declarations. The dying declarations given by the deceased were voluntarily made and stood to all tests laid down to take it a piece of evidence, relying thereon a conviction can be ordered without there being any corroborative evidence. We do not find any error in the judgment of the learned Additional Sessions Judge, Sikar dated 19.7.1995 convicting the accused appellant for the offence punishable Under Section 302, IPC and sentencing her to undergo life imprisonment with fine of Rs. 1000/-.
The appeal fails and the same is dismissed.