Jammu & Kashmir High Court
Gharu Ram & Ors vs State Of Bombay' Air 1958 Sc 22 on 17 September, 2007
Bench: Virender Singh, Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Cr Appeal No. 07 of 2004 AND Cr Acq Appeal No. 46 of 2004 Gharu Ram & Ors Petitioner State of J&K & Ors Respondent !Mr. C. M. Gupta, Advocate. ^Mr. B. S. Salathia, Addl. Advocate General. Coram : Justice Virender Singh Justice Mansoor Ahmad Mir Date: 17/09/2007 :JUDGMENT:
Per: Virender Singh-J. Vide this judgment, we intend to dispose of the aforesaid two Criminal Appeals and Confirmation reference sent under Section 374 Cr.P.C.
In all there were three accused in this case. Appellant- Gharu Ram (for short hereinafter to be referred to as the 'Accused') has suffered conviction under Section 302 Ranbir Penal Code vide impugned judgment of learned Ist Additional Sessions Judge, Jammu, dated 06.08.2004 and has been sentenced to imprisonment for life and a fine of Rs.5,000/- and in default to further undergo simple imprisonment for six months. His two co-accused namely Som Nath and Shielo Devi (respondents in State appeal), however, stand acquitted of all the charges. Accused- Gharu Ram also stands acquitted for Sections 498-A/201 Cr.P.C. Therefore, Cr. Appeal No.07/2004 by Gharu Ram and Cr. Acquittal Appeal No.46/2004 by the State against the acquittal earned by Som Nath and Shielo Devi with regard to all offences and qua Gharu Ram-accused with regard to Sections 498-A/201 Cr.P.C. only. Confirmation No.06/2004 was ordered to be heard with these two appeals.
Gita Devi (since deceased) was the wife of the accused. She received burn injuries on 27.09.2000 in her matrimonial home and was removed to Medical College Jammu. On 28.09.2000, Police Station Satwari received a message from Police Post Chatha after admission of injured -Gita Devi in Medical College Jammu, (Medical College Jammu falls within the jurisdiction of Police Post Chatha), upon which the Incharge Police Post Chatha, approached Medical Officer on duty and moved an application knowing as to whether the injured was fit to make the statement or not. Dr. Abdul (not examined) opined the injured as unfit. Thereafter on 29.09.2000, Sh. Anil Kumar Katoch Dy. SP (not examined) who was also officiating as SHO of Police Station, Satwari, accompanied by PW- ASI Gh. Mohd. Giri went to the hospital and again moved an application (EXPW-GG) for obtaining the opinion about the fitness of the patient for recording her statement. Dr. Kirti Bhushan (not examined) who was attending to the patient, opined the injured to be fit to make the statement. Thereafter her statement (EXPW-GG/1) was recorded in the hospital at 8.30 p.m. It was attested by aforesaid Dr. Kirti Bhushan and on the basis of said statement, the F.I.R. initially registered under Sections 307/498-A RPC on 29.09.2000. Subsequently, on the death of Gita Devi on 02.10.2000, it was altered to Section 302 RPC.
We feel the necessity of reproducing the Statement of Gita Devi (in vernacular) and when reproduced in English, reads as under:-
"Stated that I am the resident of Chatha Mill, Tehsil Jammu. My parents are residing at Chack Morh, Tehsil Bishnah. I was married with Sonu S/o Kartar Chand, caste Bhagat R/o Chatha Mill for the last 1 = years with the consent of my parents. After 4-5 months, my husband, mother-in-law and brother of my husband, used to harass me and were telling that the dowry brought by me has been kept at my parental house. In case that dowry including Fridge, Cooler etc. is not brought, they will set her on fire. My parents are very poor. They are unable to maintain themselves, so the question of bringing Fridge and Cooler does not arise. On Wednesday, her husband came to her room and threatened her of death. Her husband alongwith her mother-in-law and brother of her husband came there alongwith a gallon containing kerosene oil. My husband poured the kerosene oil upon me and set me on fire with a match stick. I cried a lot, but my husband shut my mouth, I became unconscious due to burn injuries. At night I was brought to hospital in a matador. It is my statement, which is correct."
During the investigation, the police seized the can of kerosene oil and partly burnt bed-sheet into possession. It revealed during investigation that Shielo Devi (since acquitted) had destroyed the evidence of crime by washing the floor of the room to wipe out traces of the kerosene oil. It also revealed that the accused had removed the bed-sheet, which had got partly burnt. For this reason, Section 201 RPC was also inserted.
All the three accused were charged under Sections 498-A, 302, 201/34 RPC. The prosecution, in order to substantiate the charge, has examined as many as eighteen (18) witnesses, but in our view and as agreed by learned counsel for both the sides the main witnesses for the purposes of deciding the present case are PW1-Chetru Ram, the father of the deceased; PW3-Bachno Devi, the mother of the deceased; PW7- Sharda Devi, the wife of Som Nath accused (since acquitted); PW14- Gh. Mohd. Giri, the Investigating Officer; and PW18- Dr. Sunil Gupta, who conducted the autopsy.
It needs to be mentioned that PW Lavo Rani (wife of the brother of the deceased), Baldev Raj, Surinder Kumar, Rattan Lal, Kewal Krishan and Bishan Dass, who were mainly with regard to the dowry demand and partly qua the occurrence, did not support the case of the prosecution and were declared hostile.
It would also not be out of place to mention that the prosecution had produced one Dr. Kirti Bhushan, but he denied the issuance of any fitness certificate by him with regard to injured Gita Devi. He in fact was wrongly reflected in the list of witnesses. The concerned doctor was some other Dr. Rishi. Thereafter, an application was moved by the prosecution under Section 540 Cr.P.C. for examining Dr. Kirti Bhushan, who in fact had issued fitness certificate and Dy.SP Anil Kumar as earlier to it the prosecution evidence was closed by the order of the Court. Despite the said application being allowed by the Court, the prosecution did not bother to examine those witnesses. There is a reference to this effect in the impugned judgment also.
We would now like to discuss the evidence of the aforesaid main witnesses in brief.
PW1-Chetru Ram is the father of the deceased. He deposed that after the marriage, his daughter was well settled in the matrimonial home and her husband never demanded for dowry. He came to know about the occurrence after the deceased was admitted in the hospital. He further stated that his daughter was saying that all the accused had set her ablaze by pouring kerosene oil on her body, but she did not disclose the reason for the same. He then stated that the police had recorded her statement and seized certain articles in his presence. He also stated that the dead body was delivered to her in-laws with his consent.
In his cross-examination, this witness stated that the deceased had told him that the accused had sprinkled kerosene oil on her body and at that time nobody else was around her.
PW3-Bachno Devi is the mother of the deceased. She also stated that her daughter (since deceased) never complained that her in-laws had been harassing her for dowry. She then stated that the deceased had visited her parental home and on 3rd day of her return to her in-laws house they learnt that the deceased had died while lighting a stove and this information was given to them by Som Nath-accused (since acquitted). This witness was declared hostile by the prosecution and in her cross-examination by Public Prosecutor, she stated that police recorded the statement of her daughter in the presence of certain witnesses and she did not nominate anybody except her husband, who came at 8.30 O' clock to the house and set her ablaze.
PW7-Sharda Devi is the wife of co-accused Som Nath (since acquitted). She stated that on the date of occurrence, she was in her room and did not know as to how the deceased got fire and by the time, she reached the room of the deceased, the flames had already engulfed the deceased and then she was removed to the hospital. She then stated that the police visited the house, seized the stove, bedding in her presence and she attested the seizure memo.
Dr. Sunil Gupta had conducted the postmortem examination on the dead body of Gita Devi on 02.10.2000 and found the following injuries on her person:-
"II. External and internal injuries:- Antemortem partially healed dermo- apidermal burn wound (infected) covering 65% of body surface area, parts spared, part of back of trunk, parts of both legs below knee, scalp and perianal area. On internal examination lungs were found congested. Stomach contains small amount of fluid and mucose was congested."
According to this witness, the cause of death was shock as a result of burn injuries covering 65% of body surface area. This witness had preserved hair from the back of the head, sealed it and handed over to the Investigating Officer for detection of the petroleum hydrocarbons. He proved the postmortem report.
PW14-Gh. Mohd. Giri is the Investigating Officer, who on 29.09.2000 had accompanied Dy.SP Anil Kumar Katoch the then SHO to the hospital. He has proved the application (EXPW-GG) for obtaining opinion regarding the fitness of the deceased. He further deposed that after the patient (Gita Devi) was declared fit to record the statement, he recorded her statement (EXPW-GG/1) in presence of Dr. Kirti Bhushan. Dy.SP Anil Kumar Katoch was asking the injured about the occurrence and whatever was stated by her, he (Gh. Mohd. Giri) recorded the same.
In his cross-examination, this witness had admitted that when the statement was being recorded, the relatives and the parents of the deceased were present in the hospital. He, however, stated that the deceased was semi conscious and could speak had put her thumb impression on the dying declaration.
On incriminating evidence put to the accused under Section 342 Cr.P.C. all the three accused had denied the allegation regarding their involvement in the occurrence and pleaded their innocence.
In defence, one Subash Chander son of Charan Dass resident of Chatha Mill, who was Panch of the local Panchayat, was brought into the witness box. He deposed that he lived just 2-3 houses away from the house of the accused and was on visiting terms to the accused. According to him the husband and the wife were residing happily and there was no quarrel between them. He then stated that soon after the occurrence he visited the house of the accused and there was nobody present in the house. The deceased was already removed to the hospital.
After appreciating the entire evidence, learned Trial Court convicted accused, Gharu Ram, for Section 302 RPC only and acquitted his other two co- accused namely Som Nath & Shielo Devi of all the charges as stated above.
We have heard Mr. C. M. Gupta, learned counsel for the appellant and Mr. B. S. Salathia, learned Additional Advocate General, representing the State. With their assistance, we have rescanned the entire case of the prosecution very minutely.
Mr. Gupta contends that no doubt the 'dying declaration' can be made the sole basis of conviction in case it is said to be reliable and free from any suspicion. The present case also revolves round the statement of Gita Devi only which has been made the basis of the conviction of accused- Gharu Ram, the husband. But the same, if appreciated in right perspective, it can be safely concluded that it was not her pure and honest statement and, therefore, it cannot be made the basis for maintaining the conviction.
Dwelling upon his arguments, Mr. Gupta submits that the learned Trial Court while believing the dying declaration sought corroboration from the evidence of parents of the deceased, but their evidence instead of lending any corroboration to it, dents it to a great extent so as to create doubt in totality. Mr. Gupta submits that the very case set up by the prosecution is that the husband and the other two co-accused being 'Jaith' and mother-in-law respectively, were harassing the deceased on account of dowry demand and this was the reason that she was set on fire on 27.09.2000. The presence of the aforesaid two persons alongwith the husband accused is also shown at the time of occurrence. Father and mother of the deceased, who are the main witnesses with regard to the dowry demand, demolish the case of the prosecution on this aspect. They have rather categorically stated that there was no demand of dowry from the side of the accused at all. According to learned counsel this material aspect cannot be just ignored while appreciating the dying declaration on the test of reliability.
Mr. Gupta then submits that even otherwise the 'dying declaration' deserves to be rejected for the reason that Dr. Kirti Bhushan, who had declared the injured fit to make the statement has not been brought into the witness box. He is also the attesting witness to the statement of the deceased. The best evidence in this regard has been withheld by the prosecution. In the same stress, the learned counsel submits that not only aforesaid Dr. Kirti Bhushan has not been produced by the prosecution, even Dy.SP Anil Kumar Katoch, who was also a very material witness has also not been produced. The evidence of Gh. Mohd Giri, who was recording the statement on the asking of aforesaid Dy.SP Anil Kumar Katoch, cannot be said to be enough to say that the said statement is true account of the main occurrence.
Mr. Gupta, in order to create doubt in the mind of the Court vis-a-vis the sanctity of the 'dying declaration', submits that it is either maneuvered one by the police in its own way or she was tutored by some outer agency to depose accordingly. From both the angles, it can be said to be not a pure dying declaration. To strengthen his arguments on this aspect, the learned counsel submits that before the statement of Gita Devi was recorded by the police, her parents had already contacted her in the hospital. The father stated that he had talked to his daughter prior to the recording of her statement by the police. On the other hand the mother of the deceased altogether demolishes the case of the prosecution with regard to the manner in which the statement was recorded. Even Gh. Mohd Giri had also admitted that the parents and other relatives were present in the hospital when the statement was being recorded. From this, the learned counsel develops that the chances of tutoring the deceased may be by her parents or as a matter of fact by any one could not be ruled out.
Mr. Gupta lastly submits that not only the 'dying declaration' is to be discarded on the basis of aforesaid flaws in it, even the medical evidence on record also creates doubt in it and projects a more probable story of receiving the injuries accidentally by lighting a Stove. To strengthen this aspect, Mr. Gupta takes us to the statement of Dr. Sunil Gupta, who noticed that certain portion of the body, which was spared by burn was; part of back of trunk, parts of both legs below knees, scalp and perianal area. From this the learned counsel submits that possibility of Gita Devi receiving injuries at the time of lighting of Stove, could not be ruled out. He submits that the accused is not supposed to set up a specific plea of defence if he is otherwise able to demolish the case of the prosecution on inherent flaws crept in it, but he being a husband is discharging his onus by projecting plausible plea, which gets support from the prosecution case itself as the evidence on record is suggesting the theory of accidental burn injuries and creating doubts in its very case. In this regard the learned counsel has also read the statement of Mrs. Sharda Devi (wife of Som Nath-accused), who is a witness to the recovery memo of a stove from the room.
On the basis of aforesaid submissions, Mr. Gupta not only prays for acquittal of accused, Gharu Ram, but asks for dismissal of the appeal filed by the State against acquittal of two co-accused also.
Mr. B. S. Salathia, learned Addl. Advocate General, on the other hand, submits that simply that doctor who had attested the 'dying declaration' is not produced, that by itself would not be a ground to throw the 'dying declaration' in its totality when all other attending circumstances are indicative of the fact that the statement of Gita Devi is a true account of occurrence, which deserves to be accepted in its entirety. To strengthen his argument, Mr. Salathia relies upon a judgment delivered by a Constitution Bench of Apex Court in case 'Laxman v. State of Maharashtra' AIR 2002 SC 2973.
Mr. Salathia then submits that may be Dy.SP Anil Kumar Katoch, who was officiating as Incharge Police Station, Satwari, has not stepped into the witness box, this would again not demolish the case of the prosecution for the reason that he had not recorded the statement of the deceased in his own hand. It was scribed by PW-Gh. Mohd Giri, who was accompanying him in the hospital. It has also come in the statement of PW- Gh. Mohd. Giri that Dy.SP Anil Kumar Katoch was asking Gita Devi about the occurrence and whatever she was stating, he had recorded the same. Therefore, according to Mr. Salathia, there is no reason to doubt the statement of aforesaid Mohd. Giri. He then contends that Som Nath and Shielo Devi (since acquitted) had also played on active role in this occurrence and there was no reason to disbelieve the 'dying declaration' in part. Therefore, the acquittal earned by them deserves to be disturbed and they may also be convicted alongwith accused Gharu Ram.
Mr. Salathia, however, very fairly states that there is no evidence led by the prosecution with regard to the charge of Section 201 RPC or even in respect of Section 498-A RPC.
Nemo moriturus praesumitur mentire: No one at the time of death is presumed to tell lie is the philosophy underlying admittance in evidence of dying declaration. This is the reason that dying declaration enjoys a sacrosanct status as a piece of evidence being in the shape of last words coming from the mouth of the deceased (victim). On the basis of this principle, in 'Khushal Rao Vs. State of Bombay' AIR 1958 SC 22, their Lordships of Apex Court held that it is not a rule of law or even the rule of prudence that 'dying declaration' cannot be made the sole foundation of conviction.
What is the evidentiary value of a dying declaration, the law has been summed up once again in a very recent judgment of Hon'ble Apex Court in case 'Dayal Singh Vs. State of Maharashtra' 2007 (3) A.I.C.L.R (All India Criminal Law Reporter) (S.C.) Page 346, wherein their Lordships while referring to Khushal Rao's case (supra) has observed in para 11 as under:-
"11. The law regarding the dying declaration and the value which is to be attached to it has been examined in considerable detail in State of Karnataka v. Shariff, (2003) 2 SCC 473: 2003(2) All India Criminal LR (S.C.) 533, by a Bench of which one of us was a member and paragraphs 18, 19, 20, 22 and 23 of the decision are being reproduced below:-
18. The earliest case in which the law on the point of dying declaration was considered in detail by this Court in Khushal Rao v. State of Bombay AIR 1958 SC
22. The Court ruled that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts seeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; 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. It has been further held that 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.
19. In State of Uttar Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552 the Court speaking through Chandrachud, C.J. held as under:
"It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao v. State of Bombay, AIR 1958 SC 22; Harbans Singh v. State of Punjab, AIR 1962 SC 439, Gopal Singh v. State of M.P., 1972 (3) SCC 268. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration."
20. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) 3 SCC 618 it was held that a great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It was further held that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. In Pothakamuri Srinivasulu v. State of A.P., (2002) 6 SCC 399 it has been held that if the deceased made statement to the witnesses and their testimony is found to be reliable the same is enough to sustain the conviction of the accused. In Mafatbhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 it was held that the Doctor who has examined the victim was the most competent witness to speak about her condition.
22. The other reason given by the High Court is that the dying declaration was not in question-answer form. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim. The question whether a dying declaration which has not been recorded in question answer form can be accepted in evidence or not has been considered by this Court on several occasions. In Ram Bihari Yadav v. State of Bihar and ors., (1998) 4 SCC 517, it was held as follows:
"It cannot be said that unless the dying declaration is in question answer form, it could not be accepted. Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not be under apprehension of death, it should be in the actual words of the maker of the declaration . Generally, the dying declaration ought to be recorded in the form of questions and answers but if dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliability. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon.."
23. In Padmaben Shamalbhai Patel v. State of Gujarat, (1991) 1 SCC 744 it was held that the failure on the part of the medical men to record the statement of the deceased in question and answer form cannot in any manner affect the probative value to be attached to their evidence. This view was reiterated in State of Rajasthan v. Bhup Ram, (1997) 10 SCC 675 and Jai Prakash and ors. v. State of Haryana, (1998) 7 SCC 284."
In the aforesaid judgment, their Lordships had taken into consideration many aspects vis-`-vis the manner of recording dying declaration and its evidentiary value, in which the other judgments of Hon'ble Supreme Court were also taken into account.
Following the aforesaid judgment of Hon'ble Apex Court, in our view, it can be summed up that; (1) it is not essential that a dying declaration should be made only before a Magistrate- Section 32 of the Evidence Act nowhere states that the dying declaration must be recorded in the presence of Magistrate; (2) Dying declaration recorded by a police officer in the presence of doctor, who had given an opinion that the deceased was in a fit state of mind to make the statement, was held to be credible and reliable and sufficient to establish the guilt of the accused; (3) it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (4) it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence other than pieces of evidence; 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) 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; (6) dying declaration can be acted upon without corroboration. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration; (7) generally, the dying declaration ought to be recorded in the form of questions and answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against the acceptability or reliability; and (8) very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim.
One vital aspect is very clear before us that while examining the 'dying declaration' on which the prosecution asks for the conviction, it becomes the duty of the Court to ensure that before making the statement the declarant was in a fit mental condition to make the said statement; it was a voluntary act of the victim free from any outer pressure because the victim was never subjected to cross-examination and the statement made becomes admissible piece of evidence by virtue of Section 32(1) of Indian Evidence Act, 1872. Apart from the said statement being admissible, the basic touchstone is that it must pass the test of reliability. Once it is held to be reliable then the conviction can be safely based on it alone as held in case 'Narain Singh and another Vs. State of Haryana' 2004 (2) Recent Criminal Reports 933 (SC).
In the case in hand, we are primarily testing the 'dying declaration' on the touchstone of reliability and in this exercise, we shall be discussing all the material aspects of the case.
One very material fact and incidentally skipped the notice of Mr. Gupta is that the prosecution has not produced any doctor, who had initially examined Gita Devi in Jammu Medical College on the day of her examination. In other words, her MLR has not been proved by the prosecution. This would have certainly disclosed atleast one fact to us as to whether the body was smelling of some kerosene oil or not? Generally, in the case of burn injuries, where it appears to the examining/attending doctor that the body is smelling of some kerosene oil or any product used which is inflammable, the clothes are taken into possession. These are the general steps, which every doctor does take as it is expected of him. The prosecution evidence in this regard is admittedly missing on the file. The investigation starts from 28.09.2000 only when for the first time Officer Incharge, Police Post, Satwari, went to the hospital and contacted one Dr. Abdul for getting the fitness certificate of the injured. This application too is not proved by the prosecution. We do not know as to when the said application was moved during the entire day of 28.09.2000. The prosecution then jumps to 29.09.2000, the date when the statement of victim was recorded.
As held in Dayal Singh's case (supra) it is not essential that a dying declaration should be made only before a Magistrate and if recorded by a police officer in the presence of a doctor who opined the state of mind of injured can be acted upon. But this all depends upon the facts of the each case. Let us proceed to appreciate the present case in its right perspective in this regard. The only evidence which is before us is a docket EXPW-GG, in the form of a request made to one Dr. Kirti Bhushan for obtaining the fitness certificate of the injured. Admittedly, Dr. Kirti Bhushan has also not stepped into the witness box to say as to at what time the said application was moved. There is no time indicated even on that application. This doctor, no doubt, is the attesting witness to the statement recorded at 8.35 p.m. (as per noting), but the fact that earlier to that time, whether the injured was in fit state of mind or not is not made clear. There is every possibility that the injured was fit to make a statement even during the day hours of 29.09.2000. All this could be clarified by Dr. Kirti Bhushan only, who has been withheld by the prosecution. As stated above, one other doctor was produced by the prosecution, who was not aware of any fact. Despite the application moved by the State under Section 540 Cr.P.C. by the prosecution being allowed, aforesaid concerned doctor (Dr. Kirti Bhushan) was not produced. Non-examination of this witness does create doubt in the mind of the Court. In 'Munna Raja Vs. State of Madhya Pardesh' A.I.R. 1976 (3) SCC page 2199, it was held by the Apex Court that Investigating Officer is naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to be encouraged. Similar view was taken in 'State of Punjab Vs. Amarjit Singh' A.I.R. 1988 SC page 2013.
There can be a situation that a police official records the statement of a victim at a particular time and within no time the injured dies. In that situation the service of a Magistrate cannot be requisitioned. It depends upon the facts of each case. In the case in hand, the record reveals that there was sufficient time with the police to have the services of any Magistrate may be Judicial or Executive. The injured patient was in the hospital on 28.09.2000 may be initially unfit to make the statement. The statement is not recorded on 28.09.2000 throughout the day. It is only in the evening of 29.09.2000 that the SHO (Dy.SP Anil Kumar Katoch) goes to the hospital for that purpose that too in the late hours. Had the police taken the pains to call some Magistrate for recording the statement of the victim, there would have been no doubt in the minds of the Court about the sanctity of the 'dying declaration'. In our view, this was one of the safest course, which the prosecution could very comfortably adopt atleast in this case. It could be done even subsequently also as the victim died on 02.10.2000.
We are not doubting the 'dying declaration' solely on the basis of aforesaid flaws highlighted by us, even non-examination of Dy.SP Anil Kumar Katoch, who was officiating as SHO of Police Station Satwari and played an important role in this case, goes to the root of the case. He is the person who was asking all relevant questions to Gita Devi (since deceased) and she was responding to him. No doubt, PW ASI Gh. Mohd Giri has stated that whatever Gita Devi was stating to Dy.SP Anil Kumar Katoch, he was recording the same, but in our considered view, the best witness was Dy.SP Anil Kumar Katoch only in this regard, who admittedly has not been produced by the prosecution. Therefore, an adverse inference has to be drawn by us about the sanctity of 'dying declaration'.
We are doubting the 'dying declaration' yet from another angle. The evidence before us is that the parents of the deceased were present in the hospital before statement of Gita Devi was recorded. Father of the deceased has gone to the extent of saying that it was around noon time when her daughter narrated the occurrence to him and nobody else was around her at that time. He disclosed the time of reaching the hospital about 10 a.m. The statement of deceased was recorded by the police at 8.35 p.m. This shows that the father was talking to his daughter prior to reaching of the police in the hospital and at the same time she was able to speak also. May be according to him, his daughter was in a semi conscious condition, the fact remains that he had a talk with his daughter. Therefore, possibility of tutoring her by outer source before her statement was recorded by the police can not be ruled out. To what extent the deceased could be tutored is not the subject matter of appreciation. The test of care and caution is that there should not be any tutoring at all from any outer agency. Even the slightest doubt in this regard should not creep in the mind of the Court. Whereas in our view, it smacks of tutoring.
On the other hand, the evidence of mother of the deceased, creates a lot of doubt in the manner of recording of the statement. She stated that when the statement of her daughter (since deceased) was being recorded, the doctor was not there. She went to the extent in saying that the police official recorded the statement on his own. This piece of evidence cannot be just ignored by this Court while arriving at just conclusion of the case. After all the entire controversy revolves round the 'dying declaration' only.
We would also like to comment upon the substantive evidence of the parents of the deceased with regard to dowry demand, which has been made the basis of this occurrence. In our view, it has some effect for the reason that even in the statement of the deceased, dowry demand only is cause. When the parents of the deceased, from whom the prosecution is begging for corroboration, stepped into witness box, they gave a complete go-bye to the allegation of dowry demand. Both these witnesses were very categoric in saying that their daughter was never harassed on account of any dowry, rather the husband and wife were staying happily. Mother of the deceased went to the extent of saying that she did not know as to what was the cause of this occurrence. If it is so, then we do not feel hesitant in observing that some outer force had certainly played some role in putting words in the mouth of Gita Devi since deceased. In other words, it can be said that the 'dying declaration' is not put forth before this Court in its purest form, which is the requirement of law. Rather it appears to be adulterated one. The evidence of parents of the deceased instead of corroborating the 'dying declaration', in our considered view, demolishes it to a great extent. It may be observed here that even the trial Court on the basis of this piece of evidence has acquitted the brother-in-law and mother-in-law.
We see the 'dying declaration' with an eye of suspicion vis-`-vis the medical evidence also. As stated above, the initial MLR of the victim is not before us. The treatment chart is also not placed on record. The only evidence is the statement of Dr. Sunil Gupta, who conducted the postmortem. In his evidence, he, on the basis of postmortem report, stated that the parts spared from the burn injuries were as under:-
"1. part of back of trunk;
2. parts of both legs below knee;
3. scalp and perianal area."
Another important fact on the file is taking into possession the stove by the investigating agency. PW-Sharda Devi is the attesting witness to that effect. Prosecution does rely upon this witness. The case as set up in 'dying declaration' is that accused-Gharu Ram had brought a container of kerosene oil and poured it on the deceased. If this was the very case set up by the prosecution, then why the stove was taken into possession creates some doubt in our mind. Mother of the deceased, Smt. Bachno Devi, has also stated in her evidence that she got the information that her daughter received burn injuries from stove. Even a bunch of hair removed from the back scalp of the head of the deceased was also taken. However, no kerosene oil residues were detected in that. This fact we find from the F.S.L. report on the trial Court file, (admittedly not proved during trial). We do not depend upon it and are just referring to it as it came to our notice, while perusing the record. The aforesaid facts and the parts of the body left as unburnt take us to draw an inference that the occurrence is not taken place in the manner it is depicted in the initial statement of Gita Devi (since deceased), which has been made the basis of conviction.
All the aforesaid inherent weaknesses, when taken collectively make the case of the prosecution doubtful about the credibility to be attached to the statement (Dying Declaration) of the victim-Gita Devi.
To be fair to Mr. Salathia, we may observe here that the judgment (supra) cited by him does not lend any advantage to his case. Rather certain observations strengthen our view.
Appreciating the prosecution case on all angles, in our considered view, it would not be safe at all to rely upon the Dying Declaration of Gita Devi for the purpose of maintaining the conviction of any of the accused as the same does not stand the touchstone of reliability. The net result is that it has to be rejected in its entirety.
Consequently, we hereby allow Cr. Appeal No.07/2004 filed by accused Gharu Ram and set aside the impugned judgment of conviction and sentence. He is acquitted of the charge and shall be released forthwith, if not required in any other case.
Resultantly, Criminal Acquittal Appeal No.46/2004 filed by the State against all the three aforesaid accused also stands dismissed.
Confirmation No.06 /2004 is answered, accordingly.