Himachal Pradesh High Court
Gangadhar vs State Of Himachal Pradesh on 11 September, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 01 of 2015
Reserved on: September 10, 2015.
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Decided on: September 11, 2015.
Gangadhar ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
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Whether approved for reporting? Yes.
For the appellant: Mr. Ramakant Sharma Sr. Advocate, with Mr. Basant
Thakur, Advocate.
For the respondent: Mr. P.M.Negi, Dy. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment and order dated 30.10.2014 and 31.10.2014, respectively, rendered by the learned Addl. Sessions Judge (1), Mandi, H.P. in Sessions Trial No. 14 of 2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 302, 498-A and 506 IPC, was convicted and sentenced to undergo rigorous imprisonment for life for offence punishable under Section 302 IPC and rigorous imprisonment for one year for the offences punishable under Section 498-A and 506 IPC and to pay a fine of Rs. 1,000/- each and in default of payment of fine to further undergo imprisonment for three months. All the sentences were ordered to run concurrently.
2. The case of the prosecution, in a nut shell, is that on 6.9.2012, complainant Veena Devi got recorded her statement with PSI Ranjan Sharma under Section 154 Cr.P.C in IGMC, Shimla. She reported ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 2 that she was married to the accused 10 years back. Two sons, namely, Ayiush and Priyanshu were born. On 4.9.2012, her mother-in-law was .
going to Jammu and the accused had also asked her to go to her parents house and he does not require her. He started abusing her. Her husband used to suspect her character. The complainant out of anger started packing her luggage and the accused kept on abusing her. She started of cooking meal in the kitchen. Her husband brought the stove from the kitchen and sprinkled kerosene oil on her and put her on fire. After a long time, he poured the water on her. The complainant asked to bring rt her clothes, but the accused did not bring the clothes. She asked her husband to inform the ambulance at number 108, but accused did not inform. When she caught fire, after hearing her cries, the villagers also gathered outside the house, who informed the ambulance at number 108.
Her mother was also informed. Few people came inside the house. The accused asked them to leave. Her statement was recorded at Rewalsar.
She had given the statement under the fear of her husband that she caught fire due to bursting of stove. She was referred to Zonal Hospital, Mandi. The accused also accompanied her. Thereafter, she was referred to IGMC, Shimla, but accused got down from the ambulance stating that he will not accompany in case his in-laws will go to Shimla. The dying declaration of the deceased was recorded by PW-25 SI Ranjan Sharma on 6.9.2012. The statement was attested by Dr. H.R. Rahi, MO, IGMC, Shimla. The FIR was also registered. The stove, match-box and two ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 3 burnt match sticks and burnt clothes were taken into possession. On 4.9.2012, the accused also tried to commit suicide by sprinkling kerosene .
oil over him and case FIR No. 243 of 2012 dated 5.9.2012 for the offence under Section 309 IPC was registered against him. On 14.9.2012, the deceased was referred to PGI, Chandigarh. On 16.9.2012, she was discharged from PGI. On 17.9.2012 when her parents were bringing her of to home at about 11:00 AM, at place Chadol, near Bilaspur she expired and her dead body was brought to Zonal Hospital, Mandi, where post mortem was conducted.
rt The accused also remained under treatment from 5.9.2012 to 3.1.2013 at Zonal Hospital Mandi. Thereafter, he was interrogated and his statement under Section 27 of the Indian Evidence Act was recorded. On completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 32 witnesses. The accused was also examined under Section 313 Cr.P.C. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Ramakant Sharma, Sr. Advocate, for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. P.M.Negi, learned Dy.
Advocate General, appearing on behalf of the State, has supported the judgment and order of the learned trial Court dated 30.10.2014 and 31.10.2014, respectively.
::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 45. We have heard learned counsel for both the sides and gone through the judgment and records of the case very carefully.
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6. PW-1 Om Chand deposed that the deceased Vidya Devi was his sister. She was married to the accused Gangadhar about 10 years ago. Accused used to torture his sister after marriage. He used to give beatings to her. They had earlier reported the matter to the Police Post of Rewalsar about three times and all the times the matter was compromised. The accused used to suspect the character of his sister.
On 4.9.2012, he had gone to his in-laws at village Maseran.
rt At about 1:30 PM, his father telephonically informed him that his sister was put on fire by the accused and called him to reach in the house. At about 2:00 PM, he reached in Rewalsar Hospital directly. The statement of his sister was already recorded and she was referred to Mandi from Rewalsar Hospital. Accused was also present in the hospital. When he inquired from the accused, he told that whatever he wants to do he has done. She was referred to IGMC, Shimla. The accused accompanied them up to Mandi and did not accompany them up to Shimla despite his request. At about 2:00 AM, his sister disclosed that the accused had put on her fire by pouring kerosene oil over her and threatened his siter to cut him and his mother like goat in case she disclosed this fact to them. On 6.9.2012, he accompanied the I.O to the village of accused. The police had lifted the sample of burnt mattresses, 4 pieces of burnt cover of mattresses, one piece of burnt table cloth etc. vide memo Ext. PW-1/A. He denied the ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 5 suggestion in his cross-examination that his sister had caught fire from the stove as she was cooking meals in the kitchen.
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7. PW-2 Savitri Devi is the mother of the deceased. According to her, the deceased was married to the accused about 10 years back. He used to mal-treat her daughter. He also used to give her beatings and used to suspect her after consuming liquor. They have reported the of matter to the police but the matter was compromised. On 4.9.2012, one Smt. Manchali Devi telephonically informed her that accused had poured kerosene oil upon her daughter and set her ablaze. She telephonically rt informed her husband who was on his duty at Sidhpur. She went to Trambi by hiring the vehicle. 6-7 women were already in the house of the accused. Her daughter was inside the room and the room was bolted from inside. The accused was also inside the room. She saw her daughter in burnt condition lying on the bed. The accused abused her.
Her daughter was wearing salwar at that time. The deceased was lifted to hospital with the help of ladies present on the spot. Accused also accompanied them up to Mandi. In her cross-examination, she deposed that her daughter had told her that accused had put her on fire by pouring kerosene oil upon her.
8. PW-3 Hima Devi deposed that she was called by Vidya Devi.
Vidya Devi told her that she was burnt with the stove. She was lying on the bed. The deceased asked her to call 108 number vehicle for her treatment. Then, she returned to her house. She was declared hostile ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 6 and cross-examined by the learned Public Prosecutor. In her cross-
examination, she admitted that the deceased had asked her to call vehicle .
No. 108. She also admitted that when she went to the house of Fulmu, Manchali and Bhup Singh, she saw that Veena Devi was lying on the bed and was not wearing a shirt but was in the salwar. She asked her as to what had happened to her. Veena Devi was in critical condition.
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9. PW-4 Om Chand deposed that deceased was married to the accused. On 4.9.2012, he came to know that his sister Veena had been burnt. There was smell of kerosene oil in the house. The burnt clothes rt were lying in the gallery. There was scattered water in the kitchen. The mattresses were in burnt condition.
10. PW-5 Tej Singh deposed that he was Pradhan of G.P. Lower Rewalsar. On 4.9.2012, the mother of the deceased had told him that her daughter was put on fire by her husband. He went to the hospital. The deceased was already referred to ZH Mandi.
11. PW-6 Bansi Lal deposed that he was Pradhan of Nagar Panchayat Rewalsar from the year 2011. On 19.3.2012, he went to Police Post, Rewalsar. Savitri Devi, accused and the deceased Veena Devi met him in the Police Post. Savitri Devi told him that her son-in-law used to beat her daughter. He made the accused to understand. Accused admitted his mistake in his presence and gave in writing that he will not beat Veena Devi in future.
::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 712. PW-7 Parma Ram deposed that Savitri Devi was his real sister. Deceased Veena Devi was her daughter. She was married with the .
accused. The accused was in the habit of beating his niece.
13. PW-8 Dr. Punit Verma, deposed that on 4.9.2012 the deceased was brought to the hospital with the alleged history of burns.
The police had filed an application Ext. PW-8/A for obtaining the MLC of of deceased. He issued MLC Ext. PW-8/B. He noticed superficial burns over right cheek anterior aspect of neck, chest, back, arms, hands, legs and foot. On scalp and hair no burn was seen. He admitted in his cross-
rt examination that he had given opinion that the injured was fit to give the statement and her statement was recorded by the police. He also admitted that she voluntarily got recorded her statement with the police.
He also admitted the suggestion that the injured had disclosed that she had caught fire from the stove. She had neither told him nor to the police that her husband had put her on fire by pouring kerosene oil over her.
14. PW-9 Dr. H.R.Rahi, is the most material witness. According to him, the patient had given statement to the police in his presence under Section 154 Cr.P.C. vide Ext. PW-9/A. Injured Veena Devi had signed the statement in his presence and he also signed the same in red circle.
15. PW-12 Dr. Parveen Thakur deposed that he conducted the post mortem of the deceased on the application of police Ext. PW-12/A. He issued report Ext. PW-12/B. ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 8
16. PW-14 HHC Nathu Ram has recorded rapat No. 8 Ext. PW-
14/A. .
17. PW-16 ASI Karam Chand deposed that he investigated case FIR No. 243/12 Ext. PW-16/A, registered against the accused as he himself tried to immolate himself on 4.9.2012. FIR was registered on 5.9.2012.
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18. PW-18 Manchali Devi deposed that accused was her neighbour. On 4.9.2012, in the noon time, deceased cried and she went to her house. She saw her lying unconscious on the bed in burnt rt condition. She asked her to call the Ambulance. She had telephonically informed her mother. She returned to her house. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination by the learned defence counsel, she admitted that near the house of accused, houses of Baldev, Hari Ram, Lal Singh, Payare Lal and Badri were situated. 5-10 women were assembled in the house of accused on the day of incident.
19. PW-21 Shakuntla Devi is the mother of the accused. In her cross-examination, she admitted that the police has taken into possession the burnt articles from the house. She also admitted that mother-in-law of her son made complaint against her son for providing maintenance to the deceased.
20. PW-22 Dr. B.R.Rawat, has proved report Ext. PW-22/A. ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 9
21. PW-23 Rajesh Kumar deposed that one parcel sealed with seal "O" in the gunny was received through HHC Vidya Sagar in the Lab.
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on opening the parcel, non-pressure wick kerosene stove, whose upper body was red colour and fuel tank was painted was found. The fuel tank lid was found missing. Some tool marks were present near the fuel tank lid portion. Fuel tank was found empty. He proved report Ext. PW-23/A. of
22. PW-24 SI Om Parkash deposed that one Veena Devi was brought to the hospital in burnt condition. He moved an application Ext.
PW-8/A to the M.O. for recording the statement of the injured and for rt MLC. The doctor opined that the injured was fit to give statement. He recorded the statement of the injured in the presence of M.O. The injured had got recorded that she got fire when she was cooking the meal. She was frightened as her husband was with her in the hospital. No rukka was sent on her statement by him to the Police Station. Thereafter, the injured was referred to Zonal Hospital, Mandi for treatment. He along with Om Chand and C. Surender Kumar went to the spot for investigation. The house was open and there was nobody in the house.
He inspected the kitchen where inflammable material was lying scattered. The burnt items clothes, shirt, salwar, burnt bed sheet and bra was also lying in the kitchen. One stove was also lying in the kitchen and the lid of the stove was open. The lid was open with some tool. He took the photographs of the spot. In his cross-examination, he admitted that in rapat Ext. PW-14/B, it is mentioned that burnt clothes of Veena ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 10 Devi Ext. P-10 to P-12 were recovered from the room. He also admitted that the statement was not in the Court file.
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23. PW-25 SI Ranjan Sharma, deposed that he went to IGMC, Shimla alongwith LC Sarita Devi. He recorded the statement of injured Veena Devi vide Ext. PW-9/A in the presence of Dr. H.R.Rahi. He took the opinion from the doctor regarding the mental state of the injured as to of whether she was fit to make statement. The doctor found her fit to give statement. After recording the statement, they returned to the Police Station and handed over the statement to SHO, on the basis of which FIR rt No. 246 of 2012 was recorded. When the statement of injured was recorded her parents were there.
24. PW-26 Dr. Richa Malhotra has examined the accused on 5.9.2012 and issued MLC Ext. PW-26/A.
25. PW-28 HHC Lalit Kumar, has conducted video grapy at the time of recording the statement of deceased vide Ext. PW-28/A and PW-
28/B.
26. PW-32 SI Chhota Ram, has prepared the site plan vide Ext.
PW-32/B and took the case property into possession. He also recorded the statements of the witnesses, namely, Manchali Devi and Shakuntala Devi.
27. What emerges from the evidence discussed hereinabove, is that the marriage of the deceased was solemnized with the accused 10 years ago. A quarrel took place between the deceased and the accused on ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 11 4.9.2012. The accused was insisting the deceased to go to her parents' house. She refused to go. Thereafter, the accused put kerosene oil on .
her and set her ablaze. She was taken to PHC Riwalsar. From PHC Riwalsar she was referred to Zonal Hospital Mandi and from Mandi she was referred to IGMC, Shimla. From IGMC Shimla, she was referred to PGI. She died on 17.9.2012 near Bilaspur on way to Mandi.
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28. PW-1 Om Chand, PW-2 Savitri Devi, PW-4 Om Chand and PW-7 Parma Ram have deposed specifically that the accused used to beat the deceased. PW-3 Hima Devi deposed that she went to the house of rt deceased and saw deceased in burn condition. The deceased has asked her to call for 108 Ambulance. Though she was declared hostile but she has admitted that the deceased had asked her to call for the ambulance.
When she went to the house of Fulmu, Manchali and Bhup Singh were also present. PW-4 Om Chand has also deposed that there was smell of kerosene oil in the house. When he went to the spot with police, the burnt clothes were lying in the gallery. PW-6 Bansi Lal has also deposed that he had advised accused not to maltreat his wife.
29. PW-8 Dr. Punit Verma has issued MLC Ext. PW-8/B. According to him, the injury received by the deceased were superficial burns, however, we have seen the photographs. It is evident to the naked eye that the deceased had received severe burn injuries and she succumbed to injuries on 17.9.2012.
::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 1230. The statement of the deceased was also recorded under Section 154 Cr.P.C. vide Ext. PW-9/A. This statement was recorded by .
PW-25 SI Ranjan Sharma on 6.9.2012. It was recorded in the presence of PW-9 Dr. H.R.Rahi. PW-9 Dr. H.R.Rahi has specifically deposed that the injured Veena Devi had given statement to the police in his presence under Section 154 Cr.P.C. vide Ext. PW-9/A. We have gone through Ext.
of PW-9/A. There is endorsement of Dr. H.R.Rahi that the statement was recorded in his presence. PW-25 SI Ranjan Sharma has deposed that he had obtained opinion from the doctor as to whether the injured was fit to rt make statement. The doctor found her fit to give statement. Thereafter, FIR No. 246/12 was registered. The deceased has categorically stated the manner in which quarrel took place between her and her husband and he set her ablaze by sprinkling kerosene oil on her. The accused put water on her, but by that time, she had received 70% burn injuries. She requested to bring her clothes. He did not listen to her request. She requested him to contact 108 Ambulance, but he did not inform the Ambulance. PW-18 Manchali Devi has also deposed that deceased has asked her to call the Ambulance. Many people had gathered outside the house after hearing her cries. She requested them to call 108 Ambulance.
Her mother was also informed. She has categorically stated in her statement Ext. PW-9/A that she was put on fire by her husband by sprinkling kerosene oil on her.
::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 1331. The post mortem report is Ext. PW-12/B. The cause of death was post burn septicemic shock and multiple organ dis-functioning.
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According to Ext. PW-22/A, report of the FSL, traces of kerosene were detected in the contents of parcels P/1, P/2 and P/3. It has also come in Ext. PW-23/A, FSL report that Ext. E/1 was big kerosene stove whose upper body was of red colour and the fuel tank was painted in blue and of yellow colour. The fuel tank lid was found missing. Some tool marks were present near the fuel tank lid portion. The fuel tank was found empty. rt
32. Mr. Ramakant Sharma, Sr. Advocate, has vehemently argued that the deceased had earlier given statement before PW-24 SI Om Prakash that she got burnt due to accidental fire from stove. He has referred to Ext. PW-14/B. However, the fact of the matter is that the deceased in her statement Ext. PW-9/A has explained that the accused had threatened her that if she would narrate the incident to her parents or brothers, she would be killed. She was scared. In these circumstances, at Rewalsar, she deposed that she received burn injuries due to stove. The conduct of the accused was also strange. He has not tried to help the deceased by taking her to the hospital. It is only people who have gathered outside the house and entered the house later on and informed the Ambulance. She was taken to PHC, Rewalsar and then to Zonal Hospital, Mandi. The accused accompanied them to Mandi and refused to accompany them to IGMC, Shimla. The dying declaration Ext.
::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 14PW-9/A was made voluntarily, consciously and the same is found to be trustworthy and creditworthy. It cannot be termed as tutored only on the .
ground that the parents of the deceased were also in the room at the time of recording the statement of the deceased. Since the deceased was lady, the parents were bound to be in the room to look after her.
33. It has also come on record that earlier also, the accused used of to maltreat the deceased. The matter was reported to the police. The matter was compromised by the Panchayat. The accused has also tried to self immolate him on 4.9.2012. He was also admitted in the hospital. FIR rt No. 243 of 2012 was also registered against the accused under Section 309 IPC. The can of kerosene oil was also taken into possession. This act of the accused was also incriminating. He has done so due to his guilt.
34. Their lordships of the Hon'ble Supreme Court in the case of Khushal Rao vrs. State of Bombay, reported in AIR 1958 SC 22, have held that once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. It has been held as follows:
"17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross- examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 15 infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as .
held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
35. Their lordships of the Hon'ble Supreme Court in the case of State of Maharashtra vrs. Krishnamurti Laxmipati Naidu, reported of in AIR 1981 SC 617, have held that where the crucial facts were found in the dying declaration in which there was a mention that the stabbing of rt the deceased by the accused was preceded by abusing of deceased's son by the accused, to which the deceased objected, the same could not be ignored merely on the ground that it did not include any statement as to how the accused had received injuries. It has been held as follows:
"19. We further find that the learned Judges of the High Court were not justified in ignoring the dying declaration (Ex. 18) of the deceased merely on the ground that it did not include any statement as to how the accused had received the injuries. This dying declaration, which was recorded by the Taluka Magistrate in the Hospital, is a very brief statement. It is to the effect: "Krishna Laxmipati Madrasi stabbed me with the knife. He was abusing my son, Shivajirao. I objected him. Because of that he stabbed me with the knife....My son Chandrakant rushed (at us). On seeing him Krishna ran away." It may be noted that although the deceased was fit enough to make a statement, yet on account of being in great agony, his words were scarce. He could not be bothered more by the Magistrate in such a condition. It would have been sheer torture to him, if the Magistrate tried to interrogate him at length in regard to all the details. The crux of the whole matter was as to who had stabbed the deceased and why. These crucial facts are to be found in the dying declaration (Ex. 18), in which there is a mention that the stabbing of the deceased by the accused was preceded by abusing of Shivaji by the accused, to which the deceased objected. True, that the dying declaration mentions about Chandrakant's coming to the scene of occurrence (possibly armed with a stick). It is further correct that in the dying declaration, the deceased did not say ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 16 specifically anything with regard to Shivaji's coming to the spot armed with a stick. But the dying declaration does clearly mention that whosoever came out to intervene, whether it was Chandrakant .
or Shivaji or both, did so only after the deceased had been stabbed by the accused."
36. Their lordships of the Hon'ble Supreme Court in the case of Smt. Paniben vrs. State of Gujarat, reported in AIR 1992 SC 1817, have culled out the following principles governing dying declaration:
of "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Mannu Raja v. State of M.P., [1976] 2 SCR 764.
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(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. Ram Chandra Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 264.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(Kake Singh v. State of M. P.., AIR 1982 S.C. 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC (Crl.)
531).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505) ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 17
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the .
deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and another v. State, AIR SC 912)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. v. Madan Mohan, AIR 1989 S.C. 1519)"
37. Their lordships of the Hon'ble Supreme Court in the case of of Jai Prakash and others vrs. State of Haryana, reported in 1999 Cri.
L.J. 837, have held that the first information report given by the rt deceased before her death, earlier recorded as complaint and later on her death treated as dying declaration, the fact that it was recorded in question and answer form is no ground to doubt its genuineness. Their lordships have held as follows:
"6. It was next contended by the learned counsel that the statement as not recorded in question and answer from and therefore no weight should be attracted to it. It also deserves to be rejected as misconceived because a complaint is required to be recorded in question and answer from even though there is a possibility that later on it might be treated as dying declaration receives corroboration from the site inspection report and also by the application - Ex. PL referring to the compromise arrived at n the previous day."
38. The Division Bench of the Delhi High Court in the case of Hans Raj and another vrs. State, reported in 2006 Cri. L.J. 2540, has held that earlier dying declaration made before a Police Officer describing incident as an accident caused while heating food on stove, the second dying declaration made before the Magistrate implicating the accused was material showing that earlier dying declaration was extracted out of her ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 18 by giving threats. Second dying declaration has to be accepted as it was corroborated by circumstantial evidence. It has been held as follows:
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"17. The trial court has found several circumstantial evidence to corroborate the dying declaration. However, we find two of the circumstances to be important. In the first place, the kerosene stove available in the house, from which the deceased could have caught fire was a sophisticated one with kerosene tank attached to a cylindrical burner and the chance of the kerosene leaking from the tank or container was almost nil. No leak in the kerosene tank was of noticed. It is not the case of the defense that the tank had burst. The kerosene tank was intact when seized by the police. The second important circumstantial evidence is the detection of kerosene on the scalp hair of the deceased. The post mortem doctor had preserved the scalp hair and had handed over the same to the rt investigation which got it examined by the CFSL. The CFSL report, Exh.PA, shows the presence of kerosene residue in the hair. True, the same report does not find residue of kerosene in the partly burnt clothes with skin sticking to them. This, however, has been explained by the fact that the hair and the clothes were packed separately. The CFSL report, Exh.PA, bears the date 28.1.1991. It was a slip of pen. The report is actually of 28.1.1992 as is explained by PW-20, Dr. N.K. Parsad, Sr. Scientific Officer, CFSL. In fact the report itself was filed before the court in July, 1992. The same was not filed along with the challan. The slip of pen about the date has not been disputed. Thus, a year had passed between the collection of the sample and its testing. In the time period that elapsed between the incident and the examination, the kerosene could have evaporated on account of the loose packing of the clothes. This could also be explained by the factor that the part of the burnt clothes sent to the CFSL were not exactly the parts which may have received the kerosene. Dr. N.K. Prasad was specifically questioned about the absence of kerosene on the clothes. He explained that the testing was done taking representative samples from different portions of the clothes and that presence of kerosene residue would not be detected by the physio Chemical analysis if the part subjected to analysis did not contain kerosene residue. Same was his answer in case exhibit in question was not properly preserved in air tight container. He also informed the court in his cross-examination that CFSL does not have the facility for taking extra precaution for preserving the exhibits received and they are kept in the open racks in the same form in which they are received. About the test done by him, namely, gas- liquid chromatography, he said that the same could detect a fraction of milliliter of kerosene. In any case the CFSL report cannot be discarded on the ground that the clothes did not produce positive result in respect of presence of kerosene whereas scalp hair did.::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 19
Therefore, we have to accept the CFSL report which says that in the scalp hair of the deceased, there was presence of kerosene. If this is so, the theory that the deceased caught fire accidentally while .
heating food on the kerosene stove has to be discarded. The presence of kerosene on the head is possible only when by a deliberate act kerosene is poured on the hair. Kerosene cannot reach the scalp hair by accidental burns caused by a stove.
18. The defense initially say that Madhu did not sign the dying declaration because either she did not want to sign the dying declaration or because she was not in a proper frame of mind to sign the dying declaration. Both the suggestions have been denied by the of SDM. In fact, the dying declaration carries a record that the statement as recorded was read out to the deceased and the deceased had accepted the same to be correct. Further argument against the dying declaration raised by the defense/appellants is that the second dying declaration is tutored by the parents of the deceased who were with her all through the period during which she was receiving rt treatment in the hospital. It was nobody's case that the family of the accused was also not there. Since the accused and their family as well as natal family of the deceased were present at the hospital it cannot be said that the natal family had the upper hand in tutoring the deceased. It can nevertheless be said that the deceased certainly gained confidence in speaking the truth as she approached death and in this the presence of her parents may also have been of some help. But most importantly the second dying declaration has to be accepted as it is corroborated by the circumstantial evidence as discussed above.
19. The Additional Sessions Judge in this case has taken the pains to visit the spot. He observed that nothing in the kitchen indicated that an incident of fire had taken place there. The kitchen, he found, was so small that in case any fire had taken place the same could certainly have left marks on the walls and the door of the kitchen. This factor has been taken into account by him in holding that the incident of fire did not actually take place in the kitchen but had taken place in the courtyard and that the same could be possible only if she was burnt by appellant No.1, Hans Raj, as indicated in her dying declaration.
20. The appellant No.1 has taken the plea that the prosecution has failed to produce the brother and sister-in-law of the appellant, who are eye-witnesses, and that it is a weakness in the prosecution case. We cannot accept this plea. The prosecution case has been sufficiently proved with the dying declaration and other circumstantial evidence."::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 20
39. In the case of Suresh Vishwanath Jadhav vrs. State of Maharashtra, reported in 2006 Cri. L.J. 4277, the Division Bench has .
held that in first dying declaration deceased stating that she caught fire due to bursting of stove and in second dying declaration she implicated her husband by giving reason for not giving his name in first dying declaration as person who poured kerosene on her and set her on fire as of to threats of killing her small daughter given by him if she reveals true facts. The medical evidence and nature of burn injuries found on her body showing that death was homicidal and not accidental, the conviction rt of husband for offence of murder and cruelty on basis of second dying declaration was held proper. It has been held as follows:
"27. Mr. Khomane has also deposed to the effect that in addition to recording the dying declaration Ex. 11, he has also prepared certain notes which he has tendered in his evidence. The same is taken on record at Ex. 11-A which goes to show the precaution taken by Mr. Khomane while recording the statement of Sangita. The evidence of Shri Khomane goes unchallenged as nothing could be brought on record in cross-examination to show that he has not recorded the statement of Sangita as required by law. Further, his evidence stands duly corroborated by Dr. Patil on all counts who has also denied the suggestions that at the time dying declaration came to be recorded he was not present in the hospital and that Special Judicial Magistrate had not come at the time of recording dying declaration and that signature has been obtained subsequently.
28. Much hue and cry has been made by the learned Counsel for the appellant accused. On the issue of second dying declaration being inconsistent with the earlier during declaration of the victim and it is sub-mitted that as in the first dying declaration which is earlier in point of time, the deceased had exonerated the appellant accused, it would be unsafe to arrive at the finding that the appellant accused is guilty of pouring kerosene on the person of his wife deceased Sangita and setting her ablaze because of which she suffered burn injuries. We find that if the prosecution wanted to suppress this fact they would not have placed the first dying declaration on record. Not only ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 21 this, but initially the Investigating Agency did not register any offence against the Appellant accused as in the first dying declaration Sangita did not implicate her husband and gave her .
statement to the effect that she suffered burn injuries due to bursting of stove i.e. accidental when she was trying to put on the stove for cooking. It is only after her mother Vatsala P.W. No. 4 came to know from her that she has been actually burnt by her husband and made a grievance to the hospital authorities that the matter was reported to the police and P.W. No. 1 Mr. Khomane was requisitioned to record the dying declaration. In the second dying declaration itself, she has specifically given the reasons that her husband had threatened her that if she tells the truth he would kill her small of daughter and therefore, she did not reveal the true facts when she was admitted in hospital.
29. It is now well settled by catena of decisions that the dying declaration can form the sole basis of conviction as in this case the deceased was conscious, alert and capable of making a statement rt and stated voluntarily that it is her husband who poured kerosene on her person and set her ablaze. In the present case, it has been tried to be canvassed that it is only after the mother and close relatives and friends of the deceased reached that she gave her second dying declaration implicating her husband, though in the first statement made to the Magistrate, she has completely exonerated the accused. What we find is there is no reason for not acting on the dying declaration of the deceased wherein she has given a fair and vivid statement that she has been set on fire by pouring kerosene oil on her by her husband and explaining the circumstances under which she was required to ° make the first statement exonerating her husband under the threat that he would kill her child. One cannot overlook the fact that as the deceased was continuously treated with cruelty by her husband her concern for the child is but natural and the threat was potent enough to deter her from making a truthful statement.
30. The first dying declaration Ex. 24 was made under duress and is to be understood from the cause stated by her relating to suffering burn injuries by bursting of stove which does not stand corroborated by forensic evidence and from the evidence of the witness to the spot panchnama as well i.e. P.W. No. 6 and the panchnama dt. 21.8.95 does not go to show that the kerosene stove was in damaged condition. We find in the evidence of the panch P.W. No. 6, he had stated that when he went inside the kitchen room, he noticed that there was kitchen platform in the kitchen room and on such platform there was a kerosene stove. There was one plastic can containing small quantity of kerosene. There was match box partly burnt. There was partly burnt Nylon sari and partly burnt blouse and that the police seized all these articles from the spot. In his cross-::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 22
examination, there is not even a suggestion to the effect that this stove had burst. Further the forensic evidence in the form of C.A. report which is tendered before the Court and marked Ex. 39 also go .
to show that kerosene was found on the burnt saree and burnt blouse of the victim. So also the medical evidence of Dr. Chandekar. P.W. No. 5 and Dr. Kurlekar, P.W. No. 2 who examined the patient at the time of admission found burn injuries all over the dead body of Sangita. The nature of burn injuries found on the lower limb and back of the victim belies the story of the victim suffering burn injuries due to bursting of stove i.e. by accident.
31. Insofar as evidence of other witnesses is concerned, which rather of corroborates the prosecution's case that the victim was treated with cruelty and in all probability it is the appellant accused who poured kerosene on her and set her ablaze, it indicates that the appellant accused wanted to get rid of her.
rt
33. Insofar as relatives of the victim are concerned i.e. P.W. No. 4, Vatsala Ingale mother of the victim and P.W. No. 7, Kalpana Krishnarao Jadhav, elder sister of the victim goes to show that the appellant accused used to treat Sangita with cruelty. Therefore, after taking into consideration the evidence on record, we have no hesitation to hold that it is the appellant accused who is guilty of having committed murder of his wife Sangita by pouring kerosene on her person and setting her ablaze resulting in burn injuries which was the cause of her death."
40. Their lordships of the Hon'ble Supreme Court in the case of Sayarabano alias Sultana Begum vrs. State of Maharashtra, reported in (2007) 12 SCC 562, have held that deceased was taken to the hospital by the appellant and members of her in-laws' family, the second dying declaration recorded after arrival of her parents in hospital and when asked by Special Judicial Magistrate, who recorded both her dying declarations, as to the discrepancy in her statements, she stated that the appellant had warned her against implicating any family member. The dying declaration recorded by Special Judicial Magistrate endorsed by doctor certifying that the deceased was in "a position to make statement".
::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 23The ill treatment meted out to the deceased by the appellant and beatings given by her husband at her mother's instigation, proved by the PWs and .
it was only after her parents' arrival that she could muster courage to state the truth. It has been held as follows:
"4. On August 13, 1998, the appellant-accused started a quarrel with the deceased Halimabi and abused her over the fact that she had not got up early in the morning for Namaz. At that time, the deceased Halimabi was standing at a place where a burning lamp of was hung on the nail in the wall. The husband as well as father-in- law of the deceased had gone to the Masjid for Namaz. In the house, apart from the deceased and the appellant- accused, brother-in-law of the deceased Shaikh Shakil and his wife Taslim were present. During the course of quarrel, the appellant-accused poured kerosene rt from the lamp on the deceased, due to which, the deceased caught fire and suffered burn injuries on her back, stomach and breast. She started screaming in pain. Her brother-in-law Shaikh Shakil put out the fire by pouring water and removed her clothes. Meanwhile, her husband had come and the deceased was taken to hospital.
5. The record indicates that when Halimabi was brought to the hospital, the history recorded accidental burns. She was taken to the hospital at 10.30 a.m. on August 13, 1998. Between 1.30 and 1.50 p.m. on the same day, Abdul Rashid Special Judicial Magistrate, Beed (PW5) was called by the police and dying declaration of deceased Halimabi was recorded by him. In that dying declaration, deceased Halimabi stated that while opening the door, her hand hit the kerosene lamp which was kept on the pillow and fell on her and she sustained injuries. In other words, according to the said dying declaration, the deceased caught fire accidentally when she came into contact with the lamp. She absolved all the inmates of her husband's family of any wrong- doing or connecting with her catching fire. On the next day i.e., on August 14, 1998, at about 1.45 p.m., however, again PW5 Special Judicial Magistrate was called for the purpose of recording dying declaration of deceased Halimabi. In the said dying declaration, she stated that on the previous day i.e. on August 13, 1998, her mother-in-law (appellant) started abusing her for not going for Namaz by getting up late. At that time, in the house, kerosene lamp was hung on the wall near which the deceased was standing. Her husband as well as her father-in-law had gone for Namaz and in the house, deceased Halimabi, her mother-in-law (appellant), her sister- in- law Taslim and her brother- in- law Shaikh Shakil were present. According to the deceased, her mother- in-law (appellant) threw the kerosene lamp on her, with the result both of her hands, entire back, stomach and both sides of her chest ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 24 were burnt and she started screaming and crying. Her brother-in- law Shaikh Shakil poured water on her and extinguished fire and removed her clothes. She was then taken to the hospital. She also .
stated that her marriage took place before 8 to 10 months and had no child. Her husband used to beat after listening to his mother. She was asked to do entire household work. In case she did not do work, her mother-in-law used to abuse her.
6. In the light of the fact that in the previous dying declaration, the deceased had not involved her mother- in-law and had described the incident as 'accidental', the Special Judicial Magistrate asked the deceased that when he recorded her dying declaration on August 13, of 1998, in the said statement, the deceased had stated that she was hit by the kerosene lamp which fell on her and she was burnt. The Special Judicial Magistrate, therefore, asked her as to why she was changing her statement. The deceased replied that her mother-in- law (appellant) told her not to give any statement against the family members of her in-laws and that was the reason why she had given rt the earlier statement. But in fact, it was her mother-in-law who threw kerosene lamp on her and thus she was burnt. She also stated that her mother-in-law was harassing her.
7. Ultimately, Halimabi died on August 20, 1998 at about 7.00 p.m. On the basis of the second dying declaration recorded by the Special Judicial Magistrate, a case was registered by PW7 PSI Sampat Shinde under C.R. No.60 of 1998 at Peth-Beed Police Station. Initially, the case was registered for an offence punishable under Section 307 IPC but after the death of Halimabi it was converted into an offence punishable under Section 302 IPC. The appellant was arrested on August 15, 1998. The matter was committed to the Court of Session and a charge was framed against the accused underSection 302 IPC.
14. Having heard the learned counsel for the parties, in our opinion, the Courts below were right in convicting the appellant. From the evidence, it is proved that on August 13, 1998, after the incident took place, the family members of the appellant took the deceased to the hospital. The record revealed that before few days of the incident, the deceased had been brought to her marital home. Before that, she was beaten by the appellant. She left marital home and went to parental home. It is also in the evidence that the deceased was beaten by her mother-in-law and two instances had been cited. Obviously, therefore, on August 13, 1998, when the deceased was taken to hospital by her mother-in-law appellant, who insisted not to give the name of any of the family members of the appellant, the deceased had no courage to name her. In the circumstances, she stated that it was merely an accident. But, after her parents came, she could state true facts, the Special Judicial ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 25 Magistrate was called again and the second dying declaration was recorded. From the evidence of PW1 Dr. Kishan Medical Officer, it was clear that total burns were about 57%. It is also in evidence of .
PW6 Dr. Kishore that the deceased was "in a position to make statement". He, therefore, accompanied Special Judicial Magistrate to the ward of Halimabi and her dying declaration was recorded. He also stated that he was present throughout till the statement of Halimabi was recorded by the Special Judicial Magistrate and when it was over, he put endorsement on the paper given by Special Judicial Magistrate. The Trial Court as well as the High Court considered both the dying declarations of the deceased Halimabi and both the Courts held the second dying declaration true and inspiring of confidence having disclosed true facts so far as the incident was concerned. Ill-treatment towards the deceased was clearly established and completely proved. The evidence of PW2 father as well as PW3 mother of the deceased was clinching on the point. Both the Courts were right in holding that nothing could be elicited from the cross- examination of those witnesses. It, therefore, cannot rt successfully be contended that the only cause of throwing burning lamp on the deceased by the appellant was getting up late in the morning by the deceased and not performing Namaz. Even prior to that incident, the appellant used to beat the deceased and on the fateful day, it was an excuse to kill the daughter-in-law by the mother-in-law."
41. In the case of Sher Singh and another vrs. State of Punjab, reported in (2008) 4 SCC 265, their lordships of the Hon'ble Supreme Court have held that absence of doctor' certification is not fatal if person recording it was satisfied that the deceased was in a fit state of mind. The requirement of doctor's certificate is essentially a rule of caution. Their lordships have further held that when the first dying declaration exonerating accused persons made immediately after she was admitted in hospital was under threat and duress that she would be admitted in hospital only if she would give a statement in favour of accused persons in order to save her in-laws and husband, it was made in presence of mother-in-law and ASI deposed that she was under ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 26
pressure. Hence, first dying declaration does not appear to be coming from a person with free mind. The second declaration was more probable .
and looks natural though it does not contain certificate of doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. It has of been held as follows:
"3. On 20.7.1994, he moved an application before the District Magistrate to record her statement. The ADM directed the Executive Magistrate, Rajiv rt Prashar (PW 7) to record her statement and on 20.7.1994 he recorded her statement. Her uncle moved another application this time before the DSP(Rural) Kanwarjit Singh (PW 1) requesting him to re-examine the matter as according to him she was forced to make a wrong statement before Hakim Singh. On 22.7.1994 the S.I. recorded her statement (Exh.PJ) at about 8.05 p.m. after taking the doctor's opinion. He stated that she was fit to make a statement. On 23.7.1994 Jaspal Kaur died due to burn injuries. Hence the offence was converted into that of Section 302 read with Section 34 IPC which resulted in trial and conviction.
4. It is submitted by the learned Counsel for the appellant before us that while appreciating the evidence, reliance should have been placed upon the first dying declaration made on 18.7.1994, which was first in time immediately after the incident wherein she stated that the fire was accidental and no one was responsible for the same, particularly when there are 6 dying declarations in total (3 written and 3 oral) wherein the statement has been improved from time to time. Submission of the learned Counsel for the appellants is that it is only when the uncle of the deceased met her in the hospital that she changed her first dying declaration and implicated the accused appellants for commission of crime. When the dying declaration was recorded by the Executive Magistrate on 20.7.1994, there is no certification of the doctor that she was in a fit state of mind to give the dying declaration even though she had received 80% burns. It is urged that one local congress worker Nirmala Sharma was present at the bedside of the deceased when the dying declaration was made by her on 20.7.1994 and possibility of her being tutored could not be ruled out.
16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 27 oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of crossexamination, the court would insist 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 should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not of prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 rt fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.
17. In the present case, the first dying declaration was recorded on 18.7.1994 by ASI Hakim Singh (DW-1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (DW-1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother- in-law was present with her.
In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW 7) on 20.7.1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW 8) on 22.7.1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 28 accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral .
dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.
18. On overall consideration of the entire evidence, we find no infirmity in the judgment of the High Court which has considered all material evidence placed by the prosecution while arriving at the conclusion of finding the accused guilty of an offence they were charged with. The appeal is, accordingly, dismissed."
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42. In the instant case also, the general condition of the deceased was stable to make dying declaration before the Police Officer. She gave rt the statement on 6.9.2012 and she died only on 17.9.2012. The accused has not tried to save her life by calling Ambulance.
43. Their lordships of the Hon'ble Supreme Court in the case of State of Karnataka vrs. Shariff, reported in AIR 2003 SC 1074, have held that the dying declaration recorded by police personnel cannot be discarded on that ground alone. There is no requirement of law that dying declaration must necessarily be made to Magistrate. It has been held as follows:
"21. It is true that PW 11 and PW 14 were Police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana AIR 1997 SC 234 on receiving message from the hospital that a person with gun shot injuries had been admitted a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja & Anr. v. State of Madhya Pradesh 1976 (2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 29 of First Information Report, which was recorded in writing, was held to be admissible in evidence."
.
44. In the case of P.V. Radhakrishna vrs. State of Karnataka, reported in AIR 2003 SC 2859, their lordships of the Hon'ble Supreme Court have held that dying declaration can be the sole basis for conviction since a person on death bed is in a situation so solemn and serene equal to obligation of oath. The absence of certificate as to state of mind of the of declarant is not fatal when police official recorded statement of deceased in presence of doctor. In this case, the deceased received 80-85% burn rt injuries. Their lordships have held as follows:
"15. There is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility."
45. In the case of Phundi vrs. State of M.P., reported in 1993 Cri. L.J. 1881, the Division Bench of the M.P. High Court has held that when the accused has tried to commit suicide, it shows his guilty mind.
It has been held as follows:
"7. Thirdly, the post-occurrence conduct of the accused was hightly incriminating. Even the accused's wife Kailashi (P. W. 3) felt compelled to admit that her husband after the incident had jumped down from the terrace of the house. The explanation given by the accused in his examination under Section 313, Cr. P.C. was ridiculous; namely, that he had slipped from the terrace. If he had really slipped, his wife would not have said that he had jumped from the terrace. What is more, the accused's real brother living in adjoining house, namely Tularam (P. W. 5) admitted that accused was seen trying to smash his head with a brick. Even Maharaj Singh (P. W. 6) admitted this fact. Thus the accused after jumping from the terrace tried to smash his head with a brick and was trying to end his life. Such conduct of the accused showed his guilty mind that he was so much overcome by remorse and repentence for the deed done by ::: Downloaded on - 15/04/2017 18:55:00 :::HCHP 30 him that he wanted to end his life. If he had not confessed to his crime by speaking any words at that time, his conduct was more eloquent and telling."
.
46. The husband and wife alone were in the house. Children had gone to the School. Thus, it was for the accused also under Section 106 of the Indian Evidence Act to explain the circumstances under which the deceased received burn injuries. The theory of suicide is not plausible.
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47. Thus, the prosecution has proved the case against the accused to the hilt. There is no occasion for us to interfere with the well reasoned judgment and order of the learned trial Court dated 30.10.2014 rt and 31.10.2014, respectively.
48. Consequently, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
September 11, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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