Jammu & Kashmir High Court
Kamlesh Devi And Ors vs State Of T.N on 11 July, 2007
Bench: Virender Singh, J. P. Singh
IN THE COURT OF HIGH COURT JAMMU AND KASHMIR AT JAMMU
Cr Appeal No. 8 OF 2005 AND Confirmation No. 3 OF 2005
1. Kamlesh Devi AND Ors
2. State
Petitioners
1. State of J&K
2. Kamlesh Devi
Respondents
! Mr. Harbans Lal, Advocate for the Appellants.
^ Mr. B.S.Salathia, AAG for the Respondents.
Coram:
HON'BLE MR.JUSTICE VIRENDER SINGH HON'BLE MR. JUSTICE J. P. SINGH Dated: 11/07/2007 : Judgment PER J.P.SINGH-J:
1. Convicted by Learned Principal Sessions Judge, Jammu under sections 302/34 of the Ranbir Penal Code for killing one Kanta Devi by sprinkling Kerosene and setting her on fire, and sentenced to life imprisonment, the appellants have appealed to this Court through their appeal registered as Criminal Appeal No. 8/2005. Learned Sessions Judge, Jammu has made reference for confirmation of sentence which stands registered as Confirmation No. 3/2005.
THE PROSECUTION STORY:
2. The prosecution story, unfolded in the police report under section 173 of the Code of Criminal Procedure, Svt. 1989, in nut shell, is that Kanta Devi, the deceased, while going for getting "fodder" & "grass" on the banks of a spring outlet stream would take the Village girls along thereby facilitating boys in indulging with them and teasing them. Kamlesh Devi, appellant on coming to know about it had reacted and told Kanta Devi not to put her daughter on immoral path and to refrain from taking her daughter along. This does not appear to have any affect on Kanta Devi.
Aggrieved by the conduct of Kanta Devi in driving her daughter to an immoral path, Kamlesh Devi, the first appellant, accompanied by her sister-in-law (Nanad), the second appellant, went to the house of Kanta Devi at about 12 noon on 14th of April, 1996. Initially, a quarrel ensued which aggravated later in Kamlesh Devi's pouring Kerosene and Swarno Devi second appellant's, lighting a match box thereby putting Kanta Devi on fire with an intention to end her life. This act of the appellants caused 90% burns on the body of Kanta Devi who was shifted to hospital where she made a statement indicating the circumstances leading to the occurrence. Her statement was recorded by PW-8 Mohd. Aziz, Head Constable who, before recording it, had obtained certificate from PW-9 Dr.Rajinder Nagar that Kanta Devi was fit to make statement. F.I.R No. 45/96 registered on the basis of this statement initially under sections 307/34 of the Ranbir Penal Code at Police Station Bari Brahmana, Jammu, was later converted to one under sections 302/34 of the Ranbir Penal Code when Kanta Devi, succumbed to the burn injuries on 19th of April, 1996.
THE TRIAL OF THE APPELLANTS:
3. After the investigation, a Challan was produced before the Chief Judicial Magistrate, Jammu who committed it to the Sessions Court where the appellants were charged under sections 302/34 of the Ranbir Penal Code on 02-06-1996. They pleaded "not guilty" to the charge and claimed to be tried.
To support its case, the prosecution examined PW-1 Mst. Bero Devi, a neighbourer of the deceased Kanta Devi, PW-2 Ganesh Ji, the brother-in-law of the deceased, PW-6 Dr. B.R.Sharma who had conducted the post-mortem examination of the deceased, PW-8 Mohd. Aziz, Head Constable who had recorded the statement of the deceased in the hospital, PW-9 Dr. Rajinder Nagar who had found the deceased fit to make statement and had attested her statement after it was recorded by Mohd. Aziz Head Constable, PW-11 Abdul Ghani Superintendent of Police, the Investigating Police Officer, besides other witnesses pertaining to seizure of articles from the spot, their production before the Magistrate besides the Forensic Science Laboratory Report dated 31st of May, 1996 issued by its Assistant Director. These witnesses were PW-3 Baldev Raj, PW-4 Ashok Kumar, PW-5 Fazal Din, Patwari, PW-7 Kartar Singh Naib Tehsildar and PW-10 Yaseen Shah Inspector of Police.
After the conclusion of the prosecution evidence, the incriminating evidence appearing against the appellants was put to them for their explanation while recording their statements under section 342 of the Code of Criminal Procedure. The appellants pleaded ignorance about the occurrence and stated that they did not know as to how Kanta Devi had received burn injuries. They produced Seva Ram and Gopal in defence.
Learned Principal Sessions Judge, Jammu convicted the appellants on being satisfied on the basis of evidence produced by the prosecution that the appellants, with an intention to put end to Kanta Devi's life, who had been indulging in putting Kamlesh's daughter on immoral path, poured Kerosene and the second appellant put her on fire with the help of a match stick, and sentenced them to life imprisonment.
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
4. Learned Counsel for the appellants has raised following points to question the impugned judgment:-
1. EXPWMA/1, the statement of Kanta Devi deceased recorded before the registration of F.I.R No. 45/96, by Mohd. Aziz Head Constable, cannot be treated as Dying declaration. Conviction of the appellants, solely on the basis of Dying declaration, in the absence of any other evidence on records is improper.
2. There being no evidence on records proving that Kanta Devi was in fit state of mind to make statement, exhibit EXPWMA/1, cannot be relied upon for convicting the appellants.
3. Omission of Kanta Devi deceased to narrate the circumstances leading to the occurrence, to the ladies who had tried to extinguish fire, immediately after the occurrence, And to her brother-in-law PW-2 Ganesh Ji when she was being carried on her way to the hospital, were such factors which would demonstrate the unreliability of the Dying declaration.
4. In view of the law laid-down in Chacko V. State of Kerala reported as AIR 2003 SC, 265, P.Mani V. State of T.N reported as (2006) 3 SCC, 161, State of Orissa V. Parasuram Naik reported as AIR 1997 SC, 3569, State (Delhi Admn.) V. Laxman Kumar reported as AIR 1986 SC, 250, Munnu Raja & anr. V. The State of M.P. reported as AIR 1976 SC, 2199, Kamalakar Nandram Bhavsar & Ors. V. State of Maharashtra reported as AIR 2004 SC, 503, Paparambaka Rosamma & Ors. V. State of A.P. reported as AIR 1999 SC, 3455, Laxman V. State of Maharashtra reported as (2002) 6 SCC, 710, the conviction of the appellants cannot be sustained on the basis of the Dying declaration of Kanta Devi.
STATE COUNSEL'S RESPONSE TO APPELLANTS' COUNSEL'S SUBMISSIONS:
5. While supporting the impugned judgment, learned State Counsel submits that the evidence produced by the prosecution during the trial of the case proves the prosecution case to the hilt. There was no legal impediment in treating the statement on the basis whereof F.I.R No. 45/96 had been registered, as Dying declaration. Omissions attributed to Kanta Devi deceased in not disclosing about the occurrence to the ladies and her brother-in-law were inconsequential and did not affect in any way the prosecution case which stood substantiated specially by the statements of PW-8 Mohd. Aziz and PW-9 Rajinder Nagar.
6. We have considered the submissions of learned counsel for the parties, gone through the records, the statements of the witnesses and the law cited by the counsel for the parties.
DISCUSSION AND FINDINGS:
7. Before considering the submissions of learned counsel for the parties, regard needs to be had to the law relating to Dying declaration, its admissibility in evidence and factors which are required to be kept in view by a Court while considering the acceptability or otherwise of such Dying declaration.
We will first refer to Section 32 of the Evidence Act, Svt. 1977 which reads thus-
"32. Cases in which statement of 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.
(2) or is made in course of business: When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of any acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or again interest of maker: When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) or gives opinion as to public right or custom, or matters of general interest: When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter has arisen.
(5) or relates to existence of relationship: When the statement relates to the existence of any relationship by blood, marriage or adopting between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) or is made in will or deed relating to family affairs: When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) or in document relating to transaction mentioned in section 13, clause
(a): When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (8) or is made by several persons and expresses feelings relevant to matter in question : When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question."
Section 32 of the Evidence Act is an exception to the general Rule against hearsay. Sub-section (1) of Section 32 of the Evidence Act makes the statement of the deceased admissible which is generally described as "Dying Declaration"
which essentially means statement made by a person as to the cause of his/her death or as to the circumstances of the transaction resulting in his death. The admissibility of the Dying declaration is based upon the principle that the impending death sensed by the maker of the statement produces in his mind the same feeling as that of a conscientious and virtuous person under oath. It is admissible upon consideration that the maker had made it in extremity when he/she was at the point of death and when every hope of this world was gone, and when every motive to the falsehood silenced and the mind of the maker gets induced by the most powerful consideration to speak the truth. Notwithstanding the same, care and caution has to be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The Court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The Court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy itself that the deceased was in a fit mental condition to make the Dying declaration, has to look for the medical opinion. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the Dying declaration without any further corroboration. It cannot be laid-down as an absolute rule of law that the Dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely the rule of prudence.
The statement reproduced hereinabove, which has been extracted from Ravi Kumar alias Kutti Ravi Versus State of T.N, reported as (2006) 9 SCC, 240, is based on the Constitution Bench judgment of Hon'ble Supreme Court of India in Laxman Versus State of Maharashtra reported as (2002) 6 SCC 710. For facility of reference, we would refer to what was held by their Lordships of Hon'ble Supreme Court of India in this case as well.
"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may effect their truth. The situation in which a man is on the death bed, is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the course insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail nor can it be said that since there is no certification of the Doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by science or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is recorded to writing by someone like a Magistrate or a Doctor or a Police Officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
8. In view of the settled legal position with regard to Dying declaration, its admissibility and acceptability by a Court seized of a Criminal Case, referred to hereinabove, we would examine the submissions of learned counsel for the parties, but before doing that, we would like to refer Munnu Raja and Ors. Versus State of M.P, reported as AIR 1976 SC 2199 dealing with the question as to whether a statement on the basis whereof First Information Report had been registered, could be treated as Dying declaration. What was held by their Lordships of Hon'ble Supreme Court of India in the case (supra) reads thus:-
"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 on 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."
9. Applying the principle underlying Section 32 of the Evidence Act, the law laid-down in Munnu Raja's and Ravi Kumar alias Kutti Ravi's cases (supra), the statement made by Kanta Devi before PW-8 Mohd. Aziz, EXPWMA/1, becomes relevant and hence admissible in evidence. It could well be treated as Dying declaration regardless of a First Information Report having been registered on its basis. We, therefore, in view of the clear legal position on the subject, do not find merit in appellants' counsel's submission that EXPWMA/1 recorded before the registration of First Information Report could not be treated as Dying declaration. We would, therefore, reject this submission.
10. This takes us to the other submissions of learned counsel for the appellants. Statement of PW-9 Rajinder Nagar and PW-8 Mohd. Aziz, Head Constable, provides sufficient, cogent and reliable evidence indicating that Kanta Devi was in a fit state of mind when her statement was recorded in the hospital. PW-9 Rajinder Nagar says in his statement that besides noticing her blood pressure, he had interacted with Kanta Devi to know about her willingness to make statement to which she had responded in the affirmative. His statement that he had issued fitness certificate EXPWRN after examining her and getting her consent was got explained by the appellants during the course of the cross- examination of this witness. We do not find any such thing in the cross- examination of this witness for raising doubt, muchless, a reasonable doubt which may affect the veracity of the statement. The statement of this witness gets corroboration from PW-2 Ganesh Ji who had testified Kanta Devi's narrating about the occurrence to PW-8 Mohd. Aziz Head Constable, who had recorded her statement. Likewise, PW-8 Mohd. Aziz Head Constable has supported the recording of Kanta Devi's statement after she was certified by PW-9 Dr. Rajinder Nagar to be in fit state of mind to make the statement. PW-8 Mohd. Aziz Head Constable has given a detailed account of recording the statement of Kanta Devi who was admitted in the hospital with 90% burns, on 14th of April, 1996.
The statement of these two witnesses get corroborative support from the statement of PW-11 Abdul Ghani Superintendent of Police, the Investigating Police Officer, who had recorded the statement of Kanta Devi, after she had made the Dying declaration and where in her statement recorded under section 161 of the Code of Criminal Procedure, she is stated to have reiterated the version of the incident.
11. For all what has been said above, we thus conclude on the basis of evidence of the prosecution that Kanta Devi was in a fit state of mind to make statement when it was recorded by PW-8 Mohd. Aziz Head Constable in presence of PW-9 Dr. Rajinder Nagar.
12. We will now notice the other evidence which the prosecution had produced during the trial of the case. PW-1 Mst. Bero Devi, who was first to notice Kanta Devi deceased in flames, though declared hostile by the prosecution, proves the following facts viz.-
1. She had witnessed quarrel between Kanta Devi deceased and the two appellants about ten minutes before Kanta Devi had received burn injuries.
2. On hearing noise, she had come out from her shop to find that Kanta Devi had fallen near the water tap and was in flames. She had tried to extinguish fire and offered water to Kanta Devi which she was unable to drink.
3. Kanta Devi had been shifted to a hospital in a truck where she had visited her and found her talking during the period of her hospitalization.
13. The statement of this witness proves the presence of the two appellants on spot on the day of the occurrence. It further proves that they had been quarreling with the deceased for about five minutes whereafter the deceased was found in flames. This witness's alleged ignorance as to how the deceased had caught fire and the occurrence taken place, would not, in any way affect the veracity of that part of her statement which proves the appellants' presence in the house of the deceased, their quarreling with her and Kanta Devi's having been found in flames after about ten minutes thereafter. Her statement further lends credence to the prosecution story that the deceased was in a fit state of mind to make Dying declaration because she had found Kanta Devi talking during the period of her hospitalization.
All these circumstances provide sufficient corroborative proof too, to the statement made by Kanta Devi deceased and the circumstances under which she had received burn injuries at the hands of the appellants who had sprinkled Kerosene and set her body on fire with a match stick. The appellants have not placed any thing on records on the basis whereof the circumstances proved by PW-1 Mst. Bero Devi may be ignored. Much capital is sought to be made by Learned Counsel for the appellants out of that part of the statement of PW-2 Ganesh Ji where he is stated to have said that the Head Constable had gone to the Doctor to get the Dying declaration attested, to urge that the Doctor was not present when the statement of Kanta Devi was recorded. We do not find any merit in this argument because some lines in the statement of this witness, cannot be read out of the context of the whole statement. We are even otherwise, not inclined to disbelieve the statements of PW-9 Rajinder Nagar and PW-8 Mohd. Aziz who had certified the deceased to be in a fit state of mind and recorded her statement because both these witnesses were discharging their official duties and there is no evidence, indication or suggestion muchless material available on records that these official witnesses had any bias of any type whatsoever in the matter. We are not impressed with yet another plea of the defence counsel that omission of the deceased to narrate about the occurrence to the ladies who had tried to extinguish fire immediately after the occurrence and to the brother-in-law of the deceased would show that the Dying declaration had been cooked later. This is so because these are not such omissions which may affect the substratum of the prosecution story. Even otherwise, a person with 90% burn injuries cannot be expected to spell out the details of the occurrence in which he/she receives burn injuries to every one who comes in contact with him/her unless the victim overcomes the trauma of the incident. Persons suffering from trauma may react differently in different situations depending on host of factors. The omission projected by learned counsel for the appellants is not such an omission which may affect her narration of the occurrence in the hospital. Special Report under section 157 of the Code of Criminal Procedure, as the records of the trial Court indicate, was received by the concerned Magistrate on 15-04-1996. Receipt of the Dying declaration on the second day of its recording, by the Magistrate, is sufficient enough to reject appellants' submission. Special Report received by the Magistrate on 15-04-1996, provides additional support to the credibility of recording of Dying declaration of deceased Kanta Devi by Mohd. Aziz Head Constable on 14-04-1996.
CONCLUSION:
14. We do not find any evidence on records nor had any such material or evidence been produced by the appellants on the basis whereof, it may be urged that Kanta Devi had either been tutored or prompted to make statement in the hospital. On the other hand, there is sufficient evidence on records that statement of Kanta Devi had been recorded without any attempt by her relations to tutor or prompt her. The evidence rather proves that the statement of Kanta Devi was voluntary and truthful. We have not found any thing on records wherefrom it may even be inferred that the statement of deceased was a product of imagination. This is additionally so because whatever had been stated by the deceased in her Dying declaration stands substantially corroborated by the statement of PW-1 Bero Devi. Plea of learned counsel for the appellants that Investigating Agency should have got the statement of Kanta Devi recorded by a Magistrate as she had remained alive for five days after making the Dying declaration needs to be noticed only for its rejection in view of the Constitution Bench Judgment of Hon'ble Supreme Court of India holding that there was necessity or legal requirement of getting the Dying declaration recorded and attested by a Magistrate. Investigating Police Officer's omission to get the statement of deceased recorded by a Magistrate, in our opinion, is not in any way fatal to the prosecution case, which may affect the conviction recorded by the Learned Sessions Judge because recoding of Dying declaration by a Magistrate is neither necessary nor a requirement of law.
In view of the clear legal position demonstrated in Ravi Kumar's and Laxman's cases decided by Hon'ble Supreme Court of India, there is no merit in the submission of learned counsel for the appellants that Dying declaration cannot form sole basis of conviction, unless it was corroborated. We may hasten to add that the present case is not the one where there is no corroboration of the Dying declaration as held by us in the earlier part of this judgment. The defence evidence, which consists of one of the relations of the appellant is neither convincing nor reliable. It projects the story of Kanta Devi's self immolation, which is neither the defence taken nor does it get support from the evidence on records. We, therefore, reject the defence evidence as irrelevant and unbelievable.
15. For all what has been said above, we do not find any error in the findings recorded by Learned Principal Sessions Judge, Jammu that the appellants, suspecting that the deceased was putting first appellant's daughter on immoral path so as to defame her, with intention to put an end to Kanta Devi's life had initially quarreled with her and later put her on fire after sprinkling Kerosene on her body. The evidence produced by the prosecution, in our opinion, furnishes sufficient proof for recording conviction under sections 302/34 of the Ranbir Penal Code and awarding sentence of life imprisonment.
16. There is no merit in the appellants' appeal. We would, accordingly, dismiss it. Sentence awarded to the appellants by Learned Principal Sessions Judge, Jammu vide his Order dated 15-03-2005 is accordingly confirmed. Confirmation No. 3/2005 shall stand accordingly allowed.