Chattisgarh High Court
Ram Bai vs State Of M.P. (Chhattisgarh) on 20 April, 2001
Equivalent citations: 2001(2)MPHT117(CG)
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. The appellant being aggrieved by the judgment dated 18-7-2000 passed in Sessions Trial No. 412 of 1998 by the learned Sessions Judge, Raipur convicting the appellant under Section 302 of the Indian Penal Code and sentencing her to undergo imprisonment for life has filed this appeal.
2. The prosecution case in brief is that appellant Ram Bai is wife of the elder brother of the husband of the deceased. Deceased Vidya Bai was married to Balram who has been examined by the defence as D.W. 2. As alleged Ram Bai was generally quarrelling with deceased Vidya Bai on very small issues, in particular relating to children. The deceased, therefore, started living in a separate room with her husband and children. On 8-10-1998 Balram (D.W. 2), husband of deceased Vidya Bai, had gone to his duties, the present appellant Ram Bai had some quarrel with deceased Vidya Bai. On the return of Balram at about 2.30 P.M., Vidya Bai informed him about the said quarrel. Balram went to wash himself and in the meantime deceased Vidya Bai started cooking food on the stove, accused Ram Bai came from behind and poured kerosene oil on Vidya Bai from a jerrycan and burnt her. Ablazed with fire said Vidya Bai ran out of the house, Balram came to her rescue and tried to extinguish the fire, in this process Balram suffered burn injuries to his hands. Immediately thereafter Vidya Bai was taken to the hospital where she was admitted for her treatment. P.W. 17 Dr. Kiran Agrawal examined the injuries of Vidya Bai and found almost about 85% burns on her body and certified the injuries under Ex. P-15. She also examined Balram, gave him some treatment and certified under Ex. P-16 that he had 2% burns on his hands. After receiving the information from the hospital, the police authorities went to the hospital to record the statements of Vidya Bai but as she was alternating between consciousness and unconsciousness her statements could not be recorded. On 12-10-1998 when she regained consciousness her Dehati Nalish (Ex. P-9) was recorded by P.W. 11 G.S. Gaharwar. On the same day said G.S. Gaharwar recorded her dying declaration under Ex. D-4. On a request made by the police to the Tahsildar/Executive Magistrate to record dying declaration of Vidya Bai, K.K. Bakshi (P.W. 12) recorded the dying declaration of the deceased under Ex. P-11. On 13-10-1998 Vidya Bai died, therefore, the case originally registered under Section 307, IPC was re-registered under Section 302, IPC. Thereafter the body was sent for post mortem and further investigation was conducted. Armed with the substantial and substantive evidence against the present appellant the police filed the challan before the Competent Court. After observing the committal proceedings the matter was committed to the Court of Sessions. On 7-12-1998 charges were framed against the accused but as she denied commission of the offence she was put to trial. The prosecution agency in support of its case examined as many as 19 witnesses while the defence examined 3 witnesses. The accused, in her statements recorded under Section 313, Cr.P.C. took the specific defence that at the time of the mishap she was preparing incense sticks, she went to extinguish the fire and as the mother of the deceased required the deceased to falsely implicate the accused the deceased made false allegations against the accused. After hearing the parties the learned Court below recorded the findings that the prosecution could bring home the guilt, it accordingly convicted and sentenced the accused.
3. Shri B.P. Sharma, learned counsel for the appellant, submits that the prosecution, in fact, has failed in proving its allegations and the defence could successfully prove that present was a case of an accidental fire and as the dying declarations contained in Exs. P-9, P-11 and D-4 are result of tutoring and depicts non-understanding of the deceased, the same could not be relied upon and the accused deserves to be acquitted. He submits that from the report of D. W. 3 Dr. Sunanda Dhenge and statements of the husband of the deceased namely Balram it would appear that present was a case of accident, the Court below was unjustified in recording the findings against the present appellant. He also submitted that the statements of P.W. 7 Janki Bai and P.W. 8 Suresh do not inspire confidence, therefore, and as conduct of P.W. 11 G.R. Gaharwar, P.W. 12 K.K. Bakshi and P.W. 19 Dr. Ashok Kumar Sharma is not above board nor is free from doubts, the appellant deserves to be acquitted. Referring to certain works of different authors on forensic science he submits that as the soles were conspicuously unburnt it would suggest a suicide and the same result must be drawn because the hair of the deceased did not catch fire. During the course of the arguments he made a submission that statements of the defence witnesses could not be rejected simply on the ground that they were examined by the defence. He submits that if the statements of the defence witnesses are taken in their true perspective it would clearly appear that present was a case of an accidental fire. He also submits that the dying declarations could not be relied upon because the same were not recorded immediately, the deceased was not in a fit mental condition and the investigating officer and relatives of the deceased were present on the spot. It is also his submission that if on 8-10-1998 and 10-10-1998 the deceased was not in a fit condition to give her statements, she could not resume consciousness nor she could be certified to be fit for giving her deposition, therefore also, the dying declarations should not have been relied upon. It is also submitted by him that the deceased was requiring her husband to live separately and as her husband was not ready and willing to leave the house, under the tutoring of the mother she made false statements in her declarations. It was lastly contended that the accused was successful in giving a positive dent to the prosecution case, therefore the accused deserves to be acquitlcd.
4. Contending contrary to the above arguments, Shri Ranveer Singh, learned Govt. Advocate for the Statesubmits that if the things are seen in their true perspective it would appear that the deceased was suffering under the hands of the accused. On the fateful day before the arrival of the husband of the deceased, the accused had some quarrel with the deceased, when the husband of the deceased had gone for a wash and the deceased was cooking food on a stove the accused came from behind and poured kerosene oil. According to him if somebody was working on a burning stove and the kerosene is poured from the back side the kerosene would immediately burn and would not leave the deceased in a position either to resist or fight. He submits that immediately after suffering the said burns the deceased came out of the house, raised alarms, her husband came to her rescue tried to extinguish the fire, some neighbour gave a blanket for extinguishing the fire and immediately she was brought to the hospital. According to him even if the deceased was not in a fit condition either on 8th or on 10th October to give her statements it would not mean that she continued to remain unfit for giving her statements. He submits that the statements recorded by P.W. 11 G.R. Gahar-war and P.W. 12 K.K. Bakshi cannot be thrown away just for the sake of the suggestions. He submits that Dr. Ashok Sharma who certified on Ex. P-11 that the deceased was in a fit mental condition cannot be disbelieved because neither he is inimical to the appellant nor had any axe to grind against the accused. Condemning the statements of D.W. 2 it was submitted that the manner in which he had changed his version it would clearly appear that he was not ready and willing to sacrify the accused though he had suffered the loss of his wife. For D.W. 3 Dr. Ku. Sunanda Dhenge he submits that the report of this Forensic Expert cannot be relied upon because she had tried to re-construct the spot after two years of the alleged incident and that too at the request of the accused. He submits that the report of D.W. 3 Dr. Ku. Sunanda Dhenge suffers with latent improbabilities and patent defects. He submits that in view of the certificate appended by Dr. Ashok Sharma on Ex. P-l 1 there is no room to hold that the deceased was not in the fit mental condition to give her statements. According to him the law does not require that the dying declaration of a person should only be relied upon if it is corroborated by some other independent witness. He also submits that if the circumstances do support the dying declaration then the solitary dying declaration can provide foundation for recording the conviction of the accused.
5. During the course of the arguments Shri B.P. Sharma submitted before this Court that the accused made an application for her release on bail and along with the said application the husband of the deceased that is D. W. 2 Balram had filed an affidavit in support of the defence, therefore, it must be presumed that the defence of the accused is neither manufactured nor concocted. At the request of Shri Sharma we called for the records of Bail Petition No. 1900 of 1998. To the surprise of all of us the said record does not contain the affidavit of the husband. It is, however, to be noted that in the order dated 16-10-1998 passed in the said bail petition the learned Sessions Judge had recorded as under :--
"It is submitted on behalf of the petitioner that she is a female who has to look after the minor kids of deceased also and the husband of the victim has sworn in favour of the petitioner stating that while working on stove for serving hot milk to him, the clothes of his wife caught fire."
Shri Sharma placing reliance upon the above observations submitted before us that this Court must make an enquiry into whereabouts of the said affidavit.
6. The applicalionfor grant of bail was filed on 14-10-1998. In the said application it is nowhere stated that any affidavit was annexed with the said application. In Para 3 of the said application it was stated that the deceased was warming the food for her husband and all of a sudden her terrycott sari caught fire. It was nowhere stated in the application that the deceased was warming milk for the husband. In absence of any statement in the application that copy of the affidavit was also annexed with the said application it is not possible for us to hold that any affidavit of Balram, was filed in support of the said bail application. After going through the records of the Bail Petition No. 1900 of 1998 we reject the request made by Shri Sharma.
7. Before we proceed to consider the evidence available on record relating to guilt or otherwise of the accused we consider it necessary to look into the evidence about the injuries suffered by the deceased. P.W. 17 Dr. Kiran Agrawal had seen the deceased first. According to her statements on 8-10-1998 at about 5.05 P.M. Vidya Bai was brought before her. On her examination she found that she had suffered burn injuries on her breast, abdomen, back, hands and legs. The extent of the burn injuries was about 85%. She immediately referred the patient to the surgery department and gave her report under Ex. P-15. The post mortem of the deceased was conducted by P.W. 10 Dr. Sanjay Kumar Dadu. According to his statements eyebrows and eyelashes of the deceased were burnt. She had suffered second degree and third degree burns, on the internal examination he found that the internal parts and the muscles were normal, the cause of the death was cardio respiratory failure which was result of the burn injuries. In para 3 it was stated by him that her feet soles were not burnt. The back hair were not burnt and so. In para 4 he denied the suggestions that he administered pathedinc injections to the injured/victim.
8. In view of para 3 of the statements of this witness learned counsel for the appellant has suggested that if the soles arc conspicuously unburnl in a case of extensive burns, it strongly suggests suicide. He has submitted before us 1976 Edition of Crime Investigation &Medical Science written by ShriR.M. Jhala. On page 88 of the said book it is stated as under :--
"Thus if soles are conspicuously unburnt in a case of extensive burns, it strongly suggests suicide. This is because it is presumed that such a thing occurs if a person walks after setting fire to his/her body."
This statement of the author cannot be taken to be of universal application. The facts of the present case are that the deceased was cooking food in front of the burning stove, the accused came from behind poured kerosene oil from back side, the deceased suffered burns and immediately ran out to seek some help or assistance. In this case the deceased did not have a chance to resist or fight or avoid the mishap ran for help, obviously her soles would not burn. The kerosene after coming in touch with the burning stove would burn faster. In case like present where the victim was working on the stove would suffer injuries on the face, eyebrows and eyelashes, such are the injuries in this case, therefore, it cannot be presumed that present was a case of suicide. Burning of the soles would basically depend upon the posture of the victim, from where or what side corrosive substance/kerosene was thrown, which part of the body caught fire first and what was immediate reaction of the victim. The statement of the author may be true in a given case but cannot be accepted to be of universal application.
9. From the judgments of P.W. 10 Dr. Sanjay Kumar Dadu it clearly appears that the deceased had suffered burn injuries on her face, there were second degree and third degree burns on her body, even for the sake of repetition we would again say that the deceased suffered the burns from the front side. She was working on a stove, the kerosene was thrown from the back side which after coming in contact with the burning stove got ablaze became an inferno and burnt the deceased.
10. P.W. 7 Janki Bai is the mother of the deceased. She has been condemned saying that she tutored the deceased to frame and falsely implicate the appellant. We repeatedly required the learned counsel for the appellant to tell us as to what, the witness was to acquire after framing the accused falsely. Shri Sharma simply suggested that as the husband was not ready to live separately, the deceased committed suicide and after suffering accidental fire when she was lodged in the hospital the mother suggested her that the present appellant was root cause of the fight, therefore, the deceased before leaving the world should teach a lesson to the accused.
11. P.W. 7 Janki Bai had stated that she had gone to see the daughter after receiving the information about the mishap. According to her as the girl was unconscious she did not ask her anything nor the deceased talked to her. She stated that on 12th in her presence and presence of her son Suresh, mother-in-law of the deceased and Balram, the deceased gave her statements which were recorded by the Thanedar. She clearly stated in Paragraph 2 that the Jethani (the elder sister-in-law) poured kerosene oil and burnt her. In Para 3 of the cross-examination she stated that she herself and the mother-in-law of the deceased were nursing and looking after the deceased. She also stated that the deceased breathed her last after giving her statements. She also stated that apart from the Thanedar the statements of the deceased were recorded by one 'Saheb' and on the said statements her thumb impressions were not taken. In Para 5 she also stated that Ram Bai the present appellant was also present in the hospital. In Para 6 she stated that whenever the deceased came to her parental place she made the complaints that the accused was having some quarrels with her. She denied the suggestion that she had suggested the deceased to falsely implicate the accused. The also denied the suggestion that when the statements of the deceased were being recorded by the Thanedar the head of the deceased was held by Suresh. She also denied the suggestion that when the statements of the deceased were recorded the head of the deceased was held by her son.
12. Barring the suggestion given in the cross-examination that she required the deceased to falsely implicate the present appellant no further suggestion has been given to her. It was not suggested to her as to what was the motive for giving such a suggestion. If such a henious suggestion was given by P.W. 7 Janki Bai then it must be shown on the record as to how she was to be benefitted After going through her statements we are unable to hold that P.W. 7 Janki Bai did suggest or could suggest the deceased to falsely implicate the present appellant.
13. P.W. 8 Suresh is the brother of deceased Vidya Bai. In Para 1 of his statements he clearly stated that in his presence the deceased gave the statement that the present appellant poured the kerosene oil and burnt her. In the cross-examination he stated that he did not have any conversation with the . deceased because she was unconscious. He stated that Vidya Bai was asking for water and she was given water by her mother-in-law. He also stated in Para 4 that when the statements of Vidya Bai were recorded his mother, Balram and Balram's mother were present on the spot. He also denied the suggestion that the deceased was only nodding her head. He stated that she was speaking slowly. He also denied the suggestion that after hearing the statements of the sister he conveyed the same to the Thanedar. He, however, admitted in para 6 that he was suggested by Balram that the deceased suffered burn injuries while she was preparing the food on the stove. From the statements of this witness it does not appear that he is telling lies. In any case this witness is not to be benefitted by implicating the present appellant. The most ordinary conduct of the parents and other relatives of the deceased, in a case of bride burning would be to implicate the husband, the mother-in-law, father-in-law and thereafter the other relations of the husband. In the present case, P.W. 7 Janki Bai and P.W. 8 Suresh are not speaking even a single word against the husband Balram or the mother-in-law of the deceased. This conduct of these two witnesses would clearly suggest that they are witnesses of truth and were not unnecessarily or falsely implicating the present appellant. P.W. 14 Raj-kumari says that after hearing the cries of Vidya Bai, she came to the spot made the enquiries from the deceased on which she was informed by the deceased that "her sari caught" thereafter they extinguished the fire and thereafter Vidya Bai was taken to the hospital. In the cross-examination she stated that the deceased informed her that her sari caught fire from the stove. She also stated that when the deceased suffered burns, accused Ram Bai, Bhagwanlin Bai and she herself were making incense sticks. Relying upon this statement of this witness it is suggested by ShriSharma that if the witness was not declared hostile and was making the statements in the interest of the accused then the prosecution is bound by the said statements. In support of the contention learned counsel tor the appellant has relied upon the judgment of the High Court of Madhya Pradesh in the matter of Bhagatram Patidar and others Vs. Stale of M.P. (1990 MPLJ 770). In Paragraph 15 of the said judgment the High Court had observed that the evidence of the witness who was not declared hostile by the prosecution would have to be taken as a part of the prosecution version. The Division Bench further observed that the evidence of that case showed that the dying declaration attributed to the deceased was not consistent. So far as the question of legal interpretation is concerned, we respectfully agree wiih the law laid down in the said judgment but stray sentence here or there would not help or suggest the defence. The statements of every witness arc required to be seen before arriving to a positive finding. What would be the effect of the statement of this witness will have to be seen when the entire evidence is considered. At best, at this stage, it can be said that P.W. 14 Rajkumari made some statement in favour of the accused. P.W. 15 Laxmi Bai is the witness who covered Vidya Bai with a blanket. When she stated that the deceased informed her that the fire was an accidental one she was declared hostile. She was confronted with her police case diary statement (Ex. P-13). In the cross-examination she could not say whether she gave the statement contained in Ex. P-13.
14. P.W. 16 Bhagwantin Bai is the mother-in-law of the deceased and also of the present appellant. Though it was repeatedly argued before us that the mother-in-law was living separately, therefore, she was not implicated by the deceased, but that argument can be rejected in view of the very first line of the statement of this witness. She stated in the first line of her statement that all of them were living together. She slated in the Court that the deceased suffered accidental fire and ultimately died. She also stated that she herself, Ram Bai and Rajkumari were making incense slicks at the time of the mishap. She was confronted with her case-diary statement (Ex. P-14). She denied having given the statements to the police. She readily accepted the suggestion of the defence that the deceased could not speak Hindi and was generally speaking Chattisgarhi language. In her entire cross-examination the defence did not suggest to her that in her presence or at some other time P.W. 7 Janki Bai was instigating the deceased rather tutoringher to falsely frame the present appellant.
15. The above is the sum total of evidence relating to the witnesses, as to what was the conduct of the accused, the witnesses and the relations of the deceased. From the statements this much can be gathered that the deceased suffered the burn injuries, she came out of her house, she was wrapped in a blanket, she was taken to the hospital, she was nursed and looked after by her mother Janki Bai, mother-in-law Bhagwantin Bai and others. Her statements were recorded by Thanedar that is P.W. 11 G.R. Gaharwar and P.W. 12 K.K. Bakshi. It also appears that the defence all through was suggesting that the mother of the deceased did tell the deceased to falsely implicate the present appellant.
16. The question for further consideration is whether the dying declarations alleged to be recorded by P.W. 11 G.R. Gaharwar and P.W. 12 K.K. Bakshi are reliable or not. Ex. P-9 is the Dehati Nalish recorded by P.W. 11 G.R. Gaharwar on the statements of the deceased. The said Dehati Nalish says that the deceased was married to Balram four years prior to the alleged incident. She was living with her husband, elder brother of the husband, uncle-in-law and others. Ram Bai the accused was earning quarrels with her, therefore, she started living in another room of the very same house but the accused Ram Bai did not stop quarrelling with her. On 8-10-1998 the accused again fought with her, on return of the husband at about 2.30 P.M. she informed about the incident to the husband, when the husband had gone to the bathroom and she was cooking the food on a stove, the accused poured kerosene oil upon her and burnt her thereafter her husband extinguished the fire and brought her to the hospital.
17. This Ex. P-9 was registered on 12-10-1998 at about 5.15 P.M. From this Dehati Nalish it would clearly appear that the deceased was making blunt and straight allegations against the present appellant. Ex. P-11 was recorded at about 4.50 P.M. by P.W. 12 K.K. Bakshi. The said statement has been recorded in question answer form. It has a certificate given by P.W. 19 Dr. Ashok Kumar Sharma clearly stating that the deceased was in a fit condition to give the statements. The material parts of the said dying declarations are that my Jethani burnt me, name of the Jethani is Ram Bai, none else was there, the husband had gone to wash his hands and legs, the husband saved her, as there was some quarrel, therefore, she was burnt. The said statement contains the thumb impression of the deceased. P.W. 12 K.K. Bakshi also appended his signatures to the dying declaration.
18. The defence in its wisdom has relied upon the certain documents to show and suggest that right from 8-10-1998 the deceased was not in a fit condition to give her statements. In Ex. D-l the doctor has recorded that the patient was not fit to give her statements. To the same effect is Ex. D-2. Ex. D-3 is the letter dated 12-10-1998. It was written by the investigating officer requiring the doctors to give the certificate whether the patient was fit to give the statements or not. The document (Ex. D-3) was put to P.W. 9 Dr. Ashok Kumar Sharma. He stated that the endorsement "at present patient is willing for statement" was in the hand-writing of Dr. Upendra Dhote. He also admitted that the endorsement A to A "patient is at present fit for giving statement" was in his own hand-writing. From the endorsement B to B it would appear that the said endorsement was made at 12.30 P.M. and the endorsement A to A was made at about 4.30 P.M. Shri Sharma learned counsel for the appellant submits that the word 'not' in the endorsement A to A was scored of subsequently, therefore it must be presumed that on 12-10-1998 up to 4.30 P.M. the patient was not in a fit condition. Unfortunately, this suggestion was not given to P. W. 19. The only fact elucidated from him was that the word 'not' was deleted. When and why the said word was deleted was not put to the witness. We are unable to understand as to how Ex. D-3 would help and assist the case and cause of the accused. A fair perusal of Ex. D-3 would clearly show that at about 12.30 noon one Dr. Upendra Dhote certified that the patient was willing to give the statements and at about 4.30 P.M. P. W. 19 Dr. Ashok Kumar Sharma certified that the patient was fit for giving the statements. It would be important to note at this stage that Ex. P-ll was recorded at 4.50 P.M. and Ex. P-9 was recorded at 5.15P.M. It would not be possible for us to hold that the patient who was conscious for more than four hours lost consciousness within twenty minutes.
19. The defence in the cross-examination relied upon Ex. D-4. Ex. D-4 is yet another dying declaration recorded by P.W. 11 G.R. Gaharwar. In this dying declaration the victim clearly stated that she was burnt by her Jethani (elder sister-in-law), burnt her with kerosene oil, barring Jethani none else was there, name of Jethani was Ram Bai; because of the quail els she burnt her. She also stated that at the time when she was burnt, Ram Bai and her husband were present. Shri Sharma learned counsel for the appellant referring to this statement that at the time of the mishap the appellant and husband of the deceased were present submits that it must be presumed that the present appellant did not burn the deceased. We are unable to concede to this argument. One must see the context in which the statement was made. The husband was present in the house, he had gone to the bathroom and the present appellant according to the statements of the deceased, as contained in dying declaration, burnt her. If in reply to the question as to who were present at the time of the mishap she said that her husband and the accused were present, it cannot be presumed that she was trying to implicate her husband. Ex. D-4 is signed by P.W. 8 Suresh and another witness Pyarelel. It is also signed by D. W. 2 Balram the husband, Janki Bai mother of the deceased and Hathiyarin Bai wife of Sevakram Devangan. D.W. 2 Balram was confronted with Ex. D-4. In Para 14 though he suggested that Vidya Bai was not speaking anything but the police was writing something but on being asked that why he did not object to it, he simply said that he did not do so. The signatures of D.W. 2 Balram on Ex. D-4 would in fact, fix the death-nail in the defence of the accused. Ex. D-4 would virtually show that in presence of the husband and number of others Ex. D-4 was recorded and none of them raised any objection especially the objection that the said dying declaration was result of tutoring or P.W. 11 G.R. Gaharwar recorded the said statement arbitrarily.
20. At this stage it would also be necessary to take into consideration the conduct of D.W. 2 Balram. According to Balram when he returned home, his wife Vidya Bai in a bad mood informed him that if he would not separate from the family she would do something, on this he tried to pacify the things but said Vidya bai poured kerosene oil on her and tried to lit the match stick. According to D.W. 2 Balram, he snatched the match-box, took the same with him to the bathroom, left his wife in her kerosene wet clothes and returned after sometime; when he came back he had a bucketfull of water with him, the deceased again snatched the match box from him and burnt herself. The witness who had a bucketful! of water with him firstly went inside to keep the bucket at its place and then came out to extinguish the fire. We arc unable to concede to the argument of Shri Sharma that the conduct of this witness shows that present was a case of suicide. This witness knew well that the deceased was in a bad mood. She was bent upon doing something. She was wearing kerosene wet clothes. On the first occasion she tried to burn herself and on the second occasion she lit the match stick. Kerosene is not as inflammable as petrol. It takes little time in getting full fire. If after snatching the match box from this witness the deceased tried to burn herself, the first conduct of the witness would have been to put the bucket water on the deceased so that her clothes get wet with water and do not catch fire. In the alternative his conduct should have been to put the bucket water on the deceased immediately when she had lit the match stick. He still had an opportunity to save the deceased by pouring the bucket water on her when she had lit her clothes. If on these three occasions he did not try to pour bucket water on the deceased, then it would not be possible for this Court to hold that he is a witness of truth.
21. True it is that in the matter of State of U.P. Vs. Baburam, Judgment Today 2000 (4) SC Page 456 = 2000(2) C.CrJ. (SC) 697, the Supreme Court has said that deposition of witnesses whether they are examined on the prosecution side or defence side or as Court witnesses are oral evidence in the case and hence the scrutiny thereof shall be without any pre-dilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yard-sticks cannot be prescribed as for those different categories of witnesses. The Supreme Court does not say that simply because some person is examined as a defence witness he stands on a higher pedestal. The Supreme Court has only observed that before relying upon a witness, the Court must have close scrutiny of the statements of witnesses. We do not say that the statement of a defence witness cannot be relied upon. What we wish to suggest is that statement of defence witness if inspires confidence, then, the said statement may provide a foundation for recording acquittal in favour of the accused, but if the statements of the defence witnesses are hollow, worthless, unreliable, then the said statements cannot be used as a foundation for recording acquittal. In the present case the statements of Balram from his very conduct would appear to be unnatural. In his presence, the dying declarations were recorded, but at no point of time, he ever raised objections that the dying declarations were wrong, were result of tutoring or the deceased was falsely framing the accused. His conduct in not extinguishing the fire or preventing the fire would also speaks volumes against him. He cannot be relied upon for any purpose. It would appear from his statement that he was trying to say the present appellant who happened to be wife of his elder brother.
22. Ex. D-4 has also been signed by one Pyarclal. This Pyarclal was examined by the defence as D.W. 1. He was a teacher by vocation. He admitted his signatures on Ex. D-4, but however suggested in the Court that the deceased Vidya Bai did not give any statement. He also admitted that on the statement contained in Ex. D-4, the thumb impression of the mother of the deceased was taken later on. He started saying that he did not remember whether their signatures were obtained or the thumb impression. In the cross-examination when he was confronted with his own conduct as to why he did not raise any objection, he simply stated that he refused to sign Ex. D-4, but under pressure of Police Officer he signed the same. The statement of this witness also cannot be relied upon. In his presence, the Police Officer prepared a document, obtained the signatures of number of the persons. He himself was also required to put his signatures on the document and now he wants to suggest in the Court that recording of Ex. D-4 was a farce and under the pressure, he appended his signatures to the document. Ex. D-4 does not appear to be a manufactured document. From the statements of P.W. 11 G.R. Gaharwar, it would appear that he had recorded Ex. D-4. No suggestion was given to him that Ex. D-4 was a manufactured document. In the cross-examination of this witness, Ex. D-5 was also marked. Ex. D-5 records the request of this witness which he had made to the Sub-Divisional Magistrate for recording the dying declaration of the deceased. We are unable to hold that Exs. P-9, D-4 and P-11 are manufactured or concocted documents, Nothing has been assigned or stated against P.W. 11 G.S. Gaharwar, P.W. 12 K.K. Bakshi, P.W. 19 Dr. Ashok Sharma as to why they were telling lies or why they became instrumental in preparation of the false and forged dying declarations. It has not been suggested in their cross-examination that they joined with the complainant side or they were interested in the deceased or her family.
23. We are unable to hold that the documents are unreliable. Shri B P. Sharma, learned counsel for the appellant/accused placing his reliance upon certain judgments of different Courts has submitted that assuming the dying declarations were validly recorded, the same cannot be relied upon because the same were not made by the person who was in the fit mental condition or was understanding the effect and impact of her statements. Shri Sharma submitted that unless the dying declarations are gospel truth and do not suffer from any doubt and are not shrouded with fancy or whims of the deceased, the same cannot be relied upon. Before appreciating the arguments on this aspect, it would be necessary to refer to the provisions of Section 32 of Indian Evidence Act. The material portion of Section 32 of lndian Evidence Act reads as under.-
"32. Cases in which statement or relevant fact by person who is dead or cannot be found, etc. is relevant.-- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases :--
(1) When it relates to cause of death.-- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
24. In the matter of Khushal Rao Vs. State of Bombay, 1958 Criminal Law Journal, Page No. 106 relating to the reliability of the dying declarations, the Supreme Court held :--
"(1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot from the sole basis of conviction unless it is corroborated;
(2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
(3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
(4) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
(5) That a dying declaration which has been recorded by a Com petent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) That in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
In the same matter, the Supreme Court referred to the circumstances which lend strength and assurance to a dying declaration. The circumstances though not exhaustive, but were considered reasonable by the Supreme Court are as under :--
"(1) That it was recorded by a Competent Magistrate after taking all proper precautions;
(2) That it was taken down in the exact words in which it was spoken and that wherever questions were put, the exact questions and the answers given to them had been carefully recorded;
(3) That this was made shortly after the incident of assault when there was no opportunity of its being coloured by impressions received from others;
(4) That the deceased had ample opportunity of observation;
(5) That the incident happened in the broad day light, or if at night time, in a place which was sufficiently lighted;
(6) That the deceased had made more than one statement, and all of them were consistent as to the circumstances of the occurrence and identity of the attackers."
25. In the matter of Kishanlal Seth Vs. Jagan Nath, AIR 1990 SC 1357, the Supreme Court further stated that the dying declaration would be reliable if the deceased was not under any fear or pressure at the, time of making statement. It is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a fact can be based thereon. The evidence which is submitted in the Court in the form of dying declaration must be considered by the Judge just as the evidence of any witness, though undoubtedly some special considerations arise in assessing the dying declaration which do not arise in the case of assessing the value of a statement made in Court by a person claiming to be a witness of the offence while appreciating the effect and impact and placing reliance upon the dying declaration, the Court has to make sure as to what statement of the dead man actually was. In a case where the dying declaration is oral one, the task is difficult, but in case where the dying declaration is recorded one, the Court must see whether the deceased was in a fit mental condition, was understanding the questions put to her, whether after understanding the questions the person was giving replies and answers, was understanding the consequences to which the answers could lead and so on. The Court has to be certain about the identity of the person named in the dying declaration as a culprit and must also take into consideration that it was not a result of tutoring.
26. In the matter of Habib Usman Vs. State of Maharashtra, 1979 SC 1181, the Supreme Court observed asunder :--
"Great weight must naturally and necessarily be attached to the dying declaration recorded so shortly after (within 45 minutes of) the occurrence. Merely because some friends and relatives happened to be with the deceased before his statement was recorded, the statement cannot be thrown out as tutored. In the first place it was indeed natural for the friends and relatives..... to be with the deceased at the time. In the second place there is nothing to indicate ..... in the evidence ..... that anyone tutored the deceased. It was not suggested to P. W. 9 the brother of the deceased that anyone was interested in falsely implicating the accused or that anyone d tutored the deceased to implicate the accused."
27. In the matter of State of U.P. Vs. Ram Sagar Yadav, 1985 SC Pg. 416, the Supreme Court discarded the evidence of eye-witnesses who was turned hostile as unworthy of credit and observed that it could not be used to corroborate the dying declarations, but maintained the conviction on the basis of 2 out of the 3 dying declarations observing that "it is well settled that although 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 rule of prudence which is hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The dying declaration found reliable, voluntary and made in a fit mental condition, does not require a conoboralion and conviction can be based on the foundation of such a dying declaration."
28. Shri Sharma placing his reliance upon the judgment of the Supreme Court in the matter of K.R. Reddy Vs. Public Prosecutor, AIR 1976 SC 1994 = 1976 Vol. 3, SCC 618, submits that unless the Court finds that a dying declaration is free from every doubt and is shown to have been made by the person in a fit mental condition, it cannot form basis for recording a conviction. In the said matter, the Supreme Court observed that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light, if the crime was committed at night, whether the capacity of a man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; the statement has been consistent through out if he had several opportunities of making a dying declaration apart from the official record of it and the statement had been made at the earliest opportunity and was not the result of tutoring by the interested parties. The Supreme Court further observed that the person who records it, must be satisfied that the deceased was in a fit state of mind. Shri Sharma, also placed his strong reliance on the judgment of the Supreme Court in the matter of Paparambaka Rosamma and others Vs. State of A.P., 1999(4) Crimes 150 (SC), to contend that the consciousness of the patient cannot be equated to condition of fitness of mind. He submits that in the present case though the Doctor had suggested that the patient was conscious, but as he does not say that the patient was in a fit state of mind to give the statement, the dying declaration cannot be recorded. He has placed his strong reliance on the judgment in the matter of Rambai Vs. State of M.P., 1990 JLJ 678, Rajesh Vs. State ofM.P., 1997(1) MPLJ 136; Ramdhar Vs. State of M.P., 1999(11) MPJR 317; Bhagwandas vs. State of M.P., 1999(1) MPLJ 373; Dandu Lakshmi Reddy Vs. State of A.P., 1999(4) Crimes 90 (SC), to contend that if the dying declaration is doubtful, is a result of tutoring has been made by the person without understanding the effect and impact and if there is a slight doubt about the mental soundness of either of the dying declarations it would be unsafe to base a conviction on such statement albeit its inadmissibility under Section 32 of the Evidence Act. To contend that the dying declaration should be recorded without any loss of time as any remissness may result in shielding of truth, he placed reliance upon the judgment in the matter of Ranchod Vs. State of M.P., 1991 JLJ 123. In the matter of Ranchod (supra) the Court had observed that there should be no lethargy on the part of those who are entrusted with the task of recording dying declaration and if there is any, the same deserves to be depricated. The High Court observed that a dying man cannot be expected to wait for arrival of a Magistrate. It is the Magistrate who should raise to the occasion and rush upto the dying man without any loss of time. Any remissness on his part results into shielding of truth. There can be no doubt about this proposition. In the case on hands it would clearly appear that at about 4.30 P.M., the doctor certified that the patient was fit to give the statements and within 20 minutes of the same. The argument that the dying declaration was not recorded immediately or between 8th to 11th and were not recorded in proper form, therefore, the dying declaration recorded on 12th be rejected, cannot be accepted. From the documents available on the record it would clearly appear that from 8th to 11th, the patient was alternating or - swinging between consciousness and unconsciousness. It was only on 12th the Doctors found her to be fit and willing for making the dying declaration.
29. The judgments on which strong reliance has been placed by the learned counsel for the appellant arc on their particular facts. In the matter of Rambai (supra), the High Court observed that if a dying declaration is not free from infirmities, a conviction cannot be based on such dying declaration. The High Court also observed that before relying upon a dying declaration it must be found out that the declarant was in fit state of mind and body while making declaration. The High Court also observed that if the dying declaration is not recorded in question and answer form and chance of tutoring cannot be ruled out, then such a dying declaration cannot be made basis for the conviction. In the case on hand, the two dying declarations are in question and answer form and the 'Dehati Nalishi' is in narrative form. The two doctors have stated in the form of a certificate that the deceased was in a fit mental conditions and P.W. 19 Dr. Ashok Kumar Sharma clearly stated in the Court that the deceased was in a fit mental condition to give her dying declaration. In the matter of Rajesh @ Raja (supra), the High Court observed that it is always desirable and is a practice which has now hardened into a rule that dying declaration should not be recorded by the Magistrate in the presence of an investigating officer, for the purpose of obviating possibility of the Investigating Officer prompting the injured to give a particular statement. Before recording a finding that the Investigating Officer prompted the injured to give a particular statement, some suggestion should come out from the side of the defence that the Investigating Officer did prompt. The dying declarations which arc available in the present case cannot be said to be result of the prompting at the instance of the investigating officer. In the matter of Ramadhar (supra), the High Court observed that to assess the weight of dying declaration, the Court must see that there are no circumstances to doubt its truthfulness. In the said case on the given facts, the High Court found that the victim was not in a fit mental condition and was unable to recollect about her first dying declaration. The High Court also observed that the dying declarations were unreliable. In the matter of Ramadhar (supra), the High Court, further observed that if there is definite circumstantial or other evidence to show that one of the dying declarations was falsely extracted from the deceased at the behest of the accused to protect him when there is nothing in law to stop the Court from rejecting that dying declaration outright and placing reliance on the dying declaration which implicates the accused, vice-versa, is also true. In case of number of dying declarations where there is divergence or the diversity flows on the face of '-different dying declarations, it would always be for the Court to rely upon or not to rely upon the dying declaration. In a case where the dying declarations are standing at different poles, then, the Court would not rely upon one or the other dying declaration. The gap which can not be bridged would provide benefit of doubt to the accused, but where the dying declarations are consistent are making the same statements and show that the maker of the dying declaration was in fit mental condition then simply because the said dying declarations were recorded by one officer or the other at different times, the Court would have.no jurisdiction to throw away the said dying declaration.
30. In the present case, the dying declarations contained in Ex. P-11 inspires confidence. Ex. P-9, Dehati Nalishi lodged by the deceased though is a previous statement of the deceased, but in view of catena of authorities can be treated to be the dying declaration. Ex. D-4 on which the defence placed his reliance, in fact, runs contrary to their own interest. In the matter of Bhagwandas (supra), the High Court observed that in absence of a certificate of the Doctor about fit mental and physical condition of declarant and in absence of the thumb impression of the declarant, it was unsafe to rely upon the said dying declaration. In the said case on the particular facts of the case, the High Court observed that merely because the dying declaration bore a thumb impression it could not be presumed that the same must have been put by the deceased. In the present case, not only the witnesses who recorded the dying declaration are asserting, but even other witnesses are stating on oath that the dying declaration bears thumb impression of the deceased.
31. In the matter of Dandu Lakshmi Reddy (supra) the Supreme Court observed that there would be no initial presumption that the dying declaration contains only truth. In the said case, the Supreme Court found that there was material divergence between the two dying declarations pertaining to occasion for launching murderous attack. The Supreme Court also found that the mental soundness of the person making either of dying declaration was doubtful. The Supreme Court further observed that if the Court finds slight doubt about the mental soundness of either of the dying declarations, it would be unsafe to base a conviction on such a statement. There can be no quarrel about the said principle of law. A case is to be decided on the facts, on the evidence available in the case and circumstances which are floating on the surface of record. If the Court finds in the given set of the circumstances that the dying declaration is a reliable piece of evidence, then, irrespective of the fact that the accused had no opportunity to cross-examine the maker of the said dying declaration, would place reliance upon the said dying declaration and convict the accused.
32. In the present case after giving our thoughtful consideration to the dying declarations the statements of the witnesses especially the statements of P.W. 11 G.R. Gaharwar, P.W. 12 K.K. Bakshi, P.W. 19 Dr. Ashok Sharma who were instrumental in recording the dying declaration and certifying that the deceased was in fit mental condition and the statements of P.W. 7 Janki and P.W. 8 Suresh who were present on the spot and statements of D.W. 1 Pyarelal and D.W. 2 Balram, we have no doubt in our mind that the dying declarations are genuine, were made by the deceased when she was in a fit mental condition, were recorded in the language in which it was made and the said dying declarations cannot be condemned as false, forged, fabricated and manufactured.
33. The matter does not end here because placing reliance upon the statement of D.W. 3 Dr. Sunanda Dhenge and her reports Exs. D-24 and 24-A, learned counsel for the appellant submits that the manner in which and the place where the incident is alleged to have taken place is not possible, therefore, the accused deserves to be acquitted. D.W. 3 Sunanda has stated that she is an expert in Forensic Science. According to her, she had taken certain photographs of the house where the alleged incident took place. After giving her thoughtful consideration, she came to the conclusion that if somebody cooked food in front of the stove, then, it was not possible for any one to pour kerosene oil her. She also suggested that in such a case the person on whom the oil was poured would resist and such kerosene would spread all over the floor. She observed that as in the first investigation it was not so observed, it did not so happen. The statement of this witness on the facts supplied to her may appear to be true, but the facts still are that the room in which the deceased suffered burn injuries, a stove was recovered and even D.W. 2 Balram, the person who had extinguished the fire has clearly stated that the deceased suffered the burns in the said room. From her statements, it would appear that certain facts were supplied to her by the defence. She did not contact the prosecution agency, the police agency nor did she take permission from the Court. It would also appear from her statements that she tried to reconstruct the spot almost after two years. She also admitted before the Court that after two years of the incident, it would not be possible for a Forensic Science expert to give the opinion whether the death was homicidal or suicidal. In reply to Para 21, she admitted that if some body was cooking food placing the stove near the window, then, any body could pour oil on such sitting person from his back side. Her report in fact is an opinion. The said opinion is based upon the facts supplied to her by the defence. The opinion evidence of an expert would only be helpful in case where the other evidence is cryptic or is not reliable, but in a case where the positive evidence says that the incident took place at a particular place and the offence was committed by a particular person, then the opinion evidence would not substitute the positive evidence. We are unable to rely upon the statement of D.W. 3 and are not in a position to hold view of the statements contained in the dying declarations and the attending circumstances, we have no doubt in our mind that the accused committed the offence and has been rightly found guilty.
34. We find no reason to interfere in the judgment of the Court below. The appeal deserves to and is accordingly dismissed.
35. Criminal Appeal dismissed.