Gujarat High Court
Anilkumar Ishwarlal Parmar vs State Of Gujarat on 7 September, 1998
Equivalent citations: (1999)2GLR1469
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT J.N. Bhatt, J.
1. The central theme of both these appeals is the macabre bride-burning for dowry against the appellants-accused No. 1 (A-l) and accused No. 2 (A-2) out of four original accused who were tried for the charges under Sections 302, 498-A and 114, I.P.C., for causing the murder of Bai Saroj, wife of A-l and since both these appeals are against one judgment filed by A-l and A-2, they are being decided and disposed of by this common judgment.
2. A few material and relevant skeleton of facts giving rise to these appeals may be narrated at the inception. A-1 Ashok is the husband of deceased Saroj and A-2 Anil is the cousin brother of A-l. Original accused No. 3 Taraben and accused No. 4 Kusumben are sisters of A-l. Deceased Saroj and A-l entered into matrimony two years before the unfortunate incident which occurred on 15-6-1991 which took the toll of the young bride-wife. It was second marriage for both. A-l has two children from the first wedlock.
3. The prosecution case has been that deceased Saroj and A-1 both were not only unfortunate to enjoy the marital bliss but were unhappy to pull on with each other. A-1 and his family members were very much disturbed and unhappy as Bai Saroj could not fulfil the expected but unlawful demands arising out of deadly social evil of dowry. Again, the deceased was accused of not treating and maintaining properly the step-children of A-1 who were born out of the first wedlock with another woman. It would be quite interesting to narrate at this juncture that end of the first wedlock of A-1 was tragic. His first wife also bid the final voyage and left the world due to burn injuries. Be that as it may, it is the prosecution case that A-1 has committed murder of his wife for a motive as stated above in collaboration with A-2 Anil, and original accused Nos. 3 and 4, the cousin sisters, by putting her ablaze without learning from the first experience. Bai Saroj was the victim of not only unbearable domestic violence but was living in the family as a dejected-rejected person as she remained unsuccessful in satisfying the dowry demands of her husband and other members of his family. She was subjected to violent cruelty and torture which compelled her to seek shelter at the parental house and voice her grievance in this behalf to the parents and many other relatives in past before her life was cut short at the cruel hands of the accused persons.
4. It is the prosecution version that on 15-6-1991 at about 10-30 p.m., in the matrimonial house situated at Saiyedpura, Nagoriwad, Surat, on the first floor, ghastly crime of dowry-bride-burning came to be committed, in that, the prosecution alleged that after giving physical torture and harm by A-1 and brother-in-law, A-2, in their mission to finish Bai Saroj with the help of their cousin sisters, poured kerosene on the person of Bai Saroj and thereafter A-1 lighting match-stick, threw it on the person of Saroj and thereby putting her to instant flame which culminated into serious first and second degree burn injuries and which as such culminated into her death, after four days.
5. F.I.R. came to be recorded by P.S.I. M. R. Chavda, PW 8 in the hospital at about 2-15 a.m., in the early morning on the next day, like that, on 16-6-1991 as narrated by deceased Saroj while undergoing medical treatment in the Maskati Hospital, Surat. That is how, the investigation started. A-1 came to be arrested on the next day at about 7 p.m. The investigating officer got dying declaration recorded by the Executive Magistrate in view of the seriousness of the injuries and recorded statements of prosecution witnesses. Part of investigation was also done by P.S.I. K. H. Devkar, PW 10 and upon completion of the investigation, the accused persons were sent up for trial before the Sessions Court by the learned Chief J.M.F.C, Surat in whose Court, the accused persons came to be charge-sheeted on the charged being framed under Sections 302, 498-A and 114 against all the accused persons, to which they denied and desired to be tried.
6. In order to fortify and substantiate the charge against the accused persons, prosecution relied on the following ten prosecution witnesses:
PW 1 Maganlal Nathalal Exh. 12 PW 2 Manharlal Mohanlal Exh. 13 PW 3 Becharbhai Nanalal Exh. 17 PW 4 Dr. Meghrekhaben Mehta Exh. 19 PW 5 Dr. Prafulchandra Lapsiwala Exh. 21 PW 6 Dilip Ramchandra Exh. 24 PW 7 Pravinbhai Kantilal Exh. 27 PW 8 Mahendrasinh R. Chavada Exh. 28 PW 9 Vishnuprakash Sharma Exh. 31 PW 10 Keshav H. Devkar Exh. 33
The prosecution also placed reliance on the documentary evidence in the nature of medical certificate, PM report, Panchnamas, two dying declarations, etc., to which we will refer to as and when required, at appropriate stage.
7. The trial Court found the present appellants guilty and convicted and sentenced them for life imprisonment and fine of Rs. 200/-, and in default, to undergo S.I., for one month for the offences punishable under Section 302 read with Section 114, I.P.C., while acquitting Accused Nos. 3 and 4. That is how, Criminal Appeal No. 243 of 1992 under Section 374 of the Code of Criminal Procedure came to be filed by A-2 challenging his conviction and sentence; whereas, Criminal Appeal No. 570 of 1992 is filed by A-1.
8. Learned Advocates appearing for the appellants have seriously criticised the impugned conviction judgment and sentence order inter alia contending that the trial Court has committed serious error and has failed to appreciate the law relating to dying declaration and that the prosecution has failed to establish the complicity of both the accused beyond reasonable doubt for the alleged murder of Saroj. The learned Addl. P. P. Mr. Desai countenanced the submissions raised for defence of the accused and has fully supported the impugned judgment and order. We have been also taken through the relevant testimonial collections and documentary evidence in course of the marathon submissions before us.
9. Obviously, in the case of bride-burning, the Court is called upon to decide as to whether the death of the deceased was homicidal or suicidal or accidental. The trial Court, upon analysis of the evidence of the prosecution witnesses reached the conclusion that deceased Saroj met with homicidal death the author of which are none but the appellants before us, A-1 and A-2 husband and brother-in-law of the deceased Saroj, excluding all and any possibility of suicidal or accidental death.
10. In fact, the question of homicidal death will not detain us any longer, in view of the strong, reliable and potent evidence led by the prosecution. Deceased Saroj had sustained serious burn injuries on 15-6-1991. The burn injuries were of first and second degrees and in terms of percentage, it was about 70% of the body. Initially, she was examined and treated by PW 4 Dr. V.P. Sharma examined at Exh. 31. She was kept as indoor patient in the Maskati Hospital at Surat. She was also treated and seen by PW 5 Dr. P. C. Lapsiwala, Exh. 21. She succumbed to the burn injuries after valiant struggling for a spell of six days, on 20-6-1991 while undergoing treatment in Maskati Hospital at Surat. The autopsy was carried out by Dr. M. H. Mehta, PW 4, examined at Exh. 19.
11. It is evident from the medical papers of Bai Saroj that she sustained serious injuries due to burning and the cause of death was septicemia as a result of extensive burns over the body of Bai Saroj. Post-mortem report produced at Exh. 20 and the medical evidence of PW 4 Dr. M. H. Mehta undoubtedly would go to show that deceased Saroj had met homicidal death. The manner and mode in which the burn injuries were sustained, the type and situs of the anatomy where the injuries were caused as unfolded by the medical evidence, we are also convinced that death of Saroj was homicidal and not suicidal or accidental.
12. At this stage, the second question which will come before focus is as to who was the author of the ghastly homicidal death of Saroj. The trial Court, in clear terms, has held that the appellants are the authors of the homicidal death of Bai Saroj. The serious contention advanced on behalf of the appellants during the course of submissions before us that the accused persons cannot be compaginated for the alleged complicity of committing murder of Bai Saroj, may prima facie appear to be subtle but not sound and sustainable when one gets into the reality in the light of evidence on record. The main plank of the defence is that the medico-legal history recorded by Dr. Sharma in the medical case papers indicating the history of burning by husband at 10-45 tonight and the role assigned to A-2 without specifically involving A-1 husband in the dying declaration Exh. 25 recorded by the Executive Magistrate, PW 6 Dilip Ramchandra and the partisan evidence of PW 3 B. N. Mistry and PW 7 Pravinbhai K. Bhagat, examined at Exh. 27 and interested evidence of police officer, create material doubt about the involvement of the accused persons in the alleged crime of committing murder of Bai Saroj. It was, therefore, vehemently submitted that the accused persons are entitled to benefit of doubt.
13. The prosecution has placed reliance on the evidence of PW 3 Becharbhai Nanabhai Mistry who is the uncle of deceased Saroj and who was the resident of the same area and neighbour of A-1. He was as such residing in the fourth house, next to the house of A-1 which is the venue of offence.
14. After having dispassionately examined the evidence of Becharbhai Mistry, we are convinced that the trial Court has rightly placed reliance on his evidence as he is a witness of truth. He has positively and directly involved and connected both the appellants. He is the cousin brother of the father of deceased Saroj.
15. It becomes very clear from the testimony of PW 3 Becharbhai Mistry that deceased Saroj was undergoing unbearable mental and physical cruelty at her matrimonial house at the hands of her husband A-1 and two sisters-in-law. She used to visit the house of the witness being in the very proximity in terms of geography as well as in terms of relationship, being her uncle. She frequently visited his house on account of severe beating, harassment and torture meted out to her in the matrimonial house. He has clearly testified in para 1 of his testimony at Exh. 17 that deceased Bai Saroj during her life-time used to visit his house atleast one or two times in a week to voice her agony and harassment. However, he used to pacify her and used to advise her to tolerate malfeasance, misconduct and violent domestic violence by her husband and his family members.
16. Insofar as the main theme of incident which took the life of Bai Saroj is concerned, he has clearly testified that on that day, Bai Saroj was screaming. Anil and her husband both were beating her. She, therefore, came out of her house and was followed by her husband and Anil, A-2. Even after coming out of her house, her husband slapped her and directed her to go away from his house to which helpless Bai Saroj replied saying 'where could she go after leaving ?' Anil also manhandled her. Since she could not obey the command of her husband of leaving the matrimonial house, she went back inside the house and paid a heavy penalty.
17. It is clearly found from the evidence of this witness Mistry that he could see that A-1 and A-2 immediately followed her and started accomplishing the mission of ghastly killing by pouring kerosene on her body and then to put her to fire, as a result of which, Bai Saroj repeatedly imploring, came out of the house. Not only that A-1, even after seeing his wife burning, came out of the house, desired his neighbours to extinguish the fire, raising shouts - "save her, save her" without himself making any effort to save her. Out of humanitarian approach, one neighbour Patel Ravji Nanji came to her rescue, but little late, and offered piece and part of quilt due to which fire on the person of Saroj was extinguished.
18. After the fire came to be extinguished, victim Saroj set near the staircase leading to the house of A-1 and her husband A-1 also went there. At that time, Saroj in a very painful way, inquired of her husband as to why he acted in such a way ? What is wrong done by her ? "I have also taken care of your children", to which A-1 could not reply. In the meantime, one of the neighbours telephoned to the Maskati Hospital to send urgently Ambulance Van. That is how Bai Saroj was taken to the Maskati Hospital for treatment by A-1. Evidence of PW 3 - Becharbhai Mistry has remained unimpeachable despite thorough and searching cross-examination. He has fully supported the prosecution case. He has involved both the accused persons. This witness is the uncle of the deceased and he is a neighbour residing only in the fourth house in a row situated near the house of A-1 which is the venue of the offence. There is no reason to discard or discredit the testimony of this witness which is quite reliable and whose presence at the relevant time was quite natural. The trial Court has rightly placed reliance on his evidence.
19. Insofar as oral dying declarations are concerned, victim Saroj made three dying declarations, one before the father, one before the doctor and one before her uncle. PW 1 - Maganlal Nathalal is examined at Exh. 12. As per his testimony, the matrimony between victim Saroj and A-1 had transpired two years before the incident. A-1 and A-2 are cousin brothers. The first wife of A-1 had died due to burning. The marriage between Saroj and A-1 was a second marriage. It is very clear from the evidence of the father of the deceased that his daughter had time and again narrated the account of inhuman treatment and unbearable psychological, and physical cruelty meted out to her by A-1 and relatives of her husband.
20. On being informed by some neighbours of A-1, PW 1 - father of the deceased along with his wife went to the house of A-1 from where they went to Maskati Hospital on the next day when Saroj was undergoing medical treatment. On seeing the parents, the victim could not resist the temptation of screaming and crying helplessly. On being asked by the father, she narrated the incident as elaborately stated in para 5 of deposition of this witness. She specifically involved A-1 her husband and A-2, cousin brother of A-1.
21. It is apparent from the testimony of this witness that both the accused persons were equally responsible for committing crime of murder. It becomes clear from the evidence of the father of the deceased that she told him that "Ashok and Anil gave me beating and fist flows. I could not tolerate beating. Therefore, I came down. Thereafter, even on the ground floor, Ashok gave me two slaps. Subsequently, Ashok and Anil both forcibly dragging her, took her on the first floor and thereafter both of them poured kerosene on my body and Ashok while lighting Bidi, threw one lit match-stick on her person, as a result of which there were extensive burn injuries. This dying declaration orally made to the father radiates imprint of truth. It is quite voluntary account given by the victim to her father. Evidence of PW 1, father of the victim is quite creditworthy and dependable.
22. The trial Court has also placed reliance on the evidence of PW 6 - Executive Magistrate Dilip Ramchandra. He has recorded the dying declaration at about 3-45 p.m., on 16-6-1991 upon being summoned by the police at Maskati Hospital. The dying declaration recorded by him is produced at Exh. 25. Despite detailed cross-examination, the evidence of the Executive Magistrate has remained unshaken. It is recorded in a question-answer form. It is very clear from the dying declaration, Exh. 25 recorded by the Executive Magistrate that A-1 and A-2 were present and deceased Saroj had sustained serious burn injuries which proved fatal and the accused persons are the authors of the ghastly killing of Bai Saroj.
23. Dying declaration, Exh. 25 recorded by the Executive Magistrate is sought to be challenged on the following grounds:
(i) that the deceased has not assigned any incriminating role to her husband A-1 and no overt-act is also attributed to him.
(ii) that mere presence at the scene of offence is not sufficient to prove the guilt.
(iii) The questions and the statement at the end of the dying declaration were already got typed.
Prima facie, the aforesaid three contentions may appear to be subtle but not sound and sustainable if one goes into the evidence and the reality thereof. It cannot be said that no overt-act is attributed to A-1. It is true that the active role in the dying declaration Exh. 25 is ascribed to A-2 Anil. However, the expression lastly made by the deceased when translated into English reads as under:
"Lastly, I was burnt". Prima facie, it cannot be said that it was A-2 only who had burnt her. Apart from that, this dying declaration which came to be recorded at about 3-30 p.m., on 16-6-1991 on the next day of the incident in the Maskati Hospital undoubtedly states that both the accused persons were present at the time of the incident. No doubt, the role assigned to A-1 is sought to be diluted in the written dying declaration before the Executive Magistrate Exh. 25. So, it is not a case that there is addition or some improvement by giving more names in the subsequent written dying declaration. Strictly speaking, it cannot be said to be a contradiction as it happens in the social life. The wife might have thought to condone the ghastly act when she was in the teeth of death. No doubt, this is one probability. The second probability which can be safely inferred in such set of facts would be that written dying declaration came to be recorded after almost 14 hours and, therefore, faculty perception and understanding would be, to an extent, affected because of pain and extensive treatment without any information by any other source as no relatives like the parents were present till her dying declaration came to be recorded by the Executive Magistrate. Be that as it may, one thing is quite certain that both the accused persons were present at the time of ghastly killing and that too arising out of dowry-bribe-burn-episode. It is not the phraseology that came to be employed by the deceased in her last words in the form of dying declaration but the substance which matters. In substance, both the accused persons were present and the last expression "Lastly, I was burnt" is relatable to both and no one. So, voluntary, untutored, natural statement in reality and substance conveyed through this written dying declaration before the Executive Magistrate clearly involves both the accused persons in the bride-burning case.
24. Of course, the typed questions and also the last statement though seriously criticised on behalf of the defence is of no avail or is of no significance. In fact, we would consider and discuss at great length the relevant proposition of law relating to dying declaration and the important principles. One of them is that it need not be in specified or prescribed fixed form. It is the substance and not the form which matters. Therefore, serious criticism levelled against written dying declaration Exh. 25 recorded by the Executive Magistrate ends in smoke.
25. PW 7 - Pravinbhai Kantilal is examined at Exh. 27. He has turned hostile to the prosecution case. Obviously so, because he is the brother-in-law of A-1. It may be noted that evidence of hostile witness is not to be always discarded in its entirety. It is, therefore, evident from the evidence of this witness that matrimonial relationship between Saroj and A-1 was wrecked on bad rock and apart from enjoyment of marital bliss, they were as such fighting with each other. Not only that, because of quarrels, Saroj had to take shelter at Nari Sanrakshan Gruh from where a letter was written at his address which is produced at Exh. 18. Therefore, evidence of PW 7 Pravinbhai clearly goes to show that relationship between the spouses was not only cordial but was totally wrecked.
26. In our opinion, the trial Court has rightly placed reliance on the evidence of PW 8 Mahendrasinh Chavda who recorded the second written dying declaration of the deceased at 2-30 a.m., on 16-6-1991. He was working as P.S.I. in Chowk Bazaar police station who, upon direction from the P.S.O., rushed to the Maskati Hospital at about 2 a.m., on the next day early morning who inquired from Dr. Lapsiwala about the physical condition of the patient. Dr. Lapsiwala informed him that the patient was in fit condition to make statement as he had examined her some time before, as a result of which, he straightaway went to the patient's ward and after ascertaining the mental and physical fitness recorded the dying declaration as narrated by the victim Saroj which is produced at Exh. 29. The evidence of this witness has remained unshaken. Not only that, it is borne out to be reliable and dependable one. The dying declaration recorded by him at Exh. 29 leaves no manner of doubt that both the accused persons were guilty of the offence of bride-burning punishable under Section 302, I.P.C. We have no hesitation in finding that Bai Saroj was in fit state of mind to give her rational statement and the written dying declaration as at Exh. 29 was voluntary, unprompted, untutored, spontaneous and dependable. The macabre role played by both the accused came to be vividly narrated in the written dying declaration as recorded by P.S.I. Chavda. It is also very clear from his evidence that deceased Saroj at that point of time was in fit state of physical and mental condition to give her rational statement. Dr. Lapsiwala of course supported the evidence of P.S.I. Chavda. Dr. Lapsiwala, PW 5 is examined at Exh. 21. No doubt, the time fraction or sequence is not consistent in the evidence of Dr. Lapsiwala and P.S.I. Chavda. But that does not affect the fit condition of the deceased. Whether P.S.I. Chavda inquired from Dr. Lapsiwala or Dr. Lapsiwala had earlier examined her and made endorsement in the case papers. This is quite incidental and does not affect the substratum of the main core like that, fitness of mind to make a rational statement. In our opinion, therefore, the dying declaration Exh. 29 recorded by P.S.I. Chavda of deceased Saroj is quite rightly relied upon by the trial Court.
27. Incidentally, it would be appropriate to refer to the serious criticism levelled against the dying declaration recorded by the Executive Magistrate wherein it came to be submitted that the Executive Magistrate did not verify from the medical officer that the deceased was in fit mental condition to make the rational statement. It is true that the deponent obviously did not ascertain from the medical officer about fitness of the deceased to make the statement. However, mere fact that the Executive Magistrate unequivocally did not ascertain from the medical officer that the deceased was in fit condition to make the statement, would not ipso facto be subversive to the declaration made by the deceased. In fact, the anxiety of the Court has always been to see that the dying declaration made by the deceased should be in fit state of mental condition. Which should be the source of ascertaining the physical or mental fitness is for Court to consider. At times, it may happen that when a dying declaration is being recorded, the doctor is not present or at times when the dying declaration is recorded, the victim is on way to hospital. Therefore, what is of emphasis is that the Court should be satisfied that the declarant was in fit mental condition to make a rational statement. Whether the person is in fit state of mind or not can be decided by the person who is recording such statement. The questions and answers incorporated in Exh. 25 - dying declaration recorded by the Executive Magistrate speaks volumes about fit mental condition of the deceased and omnibus question is also put at the end of the dying declaration and it is replied. Therefore, it cannot be contended that merely because opinion of the medical officer is not obtained before recording of dying declaration by the authority, the same is weak piece of evidence or is unreliable. Therefore, serious criticism levelled on this count is nothing but polishing the brass when the ship is sinking.
28. Before we advert to the relevant proposition of law with regard to dying declaration, we would like to highlight and articulate five dying declarations, three oral and two written, in the following tabular chart:
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Name Exh. Description Contents
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1 PW 9-Dr. V.M. In form of history
Sharma, Exh. 31 of assault. H/O
Burn by husband
at 10-45 tonight.
2 PW 8-Mahendrasinh FIR 16-6-1991 Ashok and Anil gave me slap and
Chavda at about 2-30.a.m. kick and fist blows. When I resisted
Exh. 28 my husband told me that you are not
treating my children in good manner.
When I went upstairs, they both
followed me. My husband took out
kerosene from cane and sprinkled
kerosene on my body and Anil also
sprinkled kerosene. Thereafter, my
husband ignited bidi by matchstick
and threw ignited matchstick on my
body and therefore, I have received
burn injuries.
3 PW 6-Dilip Written dying My brother-in-law picked
Ramchandra Exh. 24 declaration up quarrel and threatened to kill me.
at about 15-50 to He sprinkled kerosene. Thereafter,
16-05 p.m., on threw matchstick and burnt me alive.
16-6-1991. The reason for quarrel is that he
instigated my husband on the cause
that I was not properly treating his
children.
4 PW 3-Becharbhai Oral dying On 16, when Saroj saw me, she
N. Mistry declaration cried and told me that Ashok and
Exh. 17 at about 4-00 p.m. Anil poured kerosene on me and
on 16-6-1991 threw matchstick and burnt me alive.
5 PW 1-Maganlal Oral dying Ashokkumar and Anilkumar took
N. Jinagar declaration me to first floor and poured kerosene
Exh. 12 at about on my body. Ashokkumar took out
4-30 p.m. on bidi from his pocket and ignited the
16-6-1991 bidi and threw ignited matchstick on
her and therefore, I received burn
injuries.
29. Law of dying declaraion is extensively explored and elaborately enunciated by number of judicial pronouncements. Dying declaration is substantive piece of evidence. It requires no corroboration if it is found voluntary, rational, truthful and dependable. Even conviction can be founded upon the sole dying declaration. No doubt, dying declaration is unsworn statement and the adversary or other side has ho occasion or opportunity to cross-examine the declarant. However, the dying declaration is made by a person under the apprehension of death or upon anticipating approaching death which, accords sanctity as that of oath. General principles of oral evidence are to an extent diluted in incorporating specific provisions of Section 38 of the Evidence Act, 1872. Of course, the general rule is that oral evidence must be direct, in case, it refers to fact which could be seen, it must be the evidence of the witness who says he heard or saw it. Needless to mention that there is purpose and policy behind incorporating the provisions of Section 32 of the Evidence Act. Section 32(2) makes relevant what, in English law, are called 'dying declarations', i.e., statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of his statement might defeat the ends of justice and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. It becomes clear that though a dying declaration as provided under Section 32(1) of the Evidence Act is not a direct evidence and is an unsworn statement, it can be acted upon and relied upon as a substantive piece of evidence and even conviction can be founded upon the sole evidence of dying declaration.
30. In view of host of judicial pronouncements in the sphere of dying declarations, the following aspects and propositions can be highlighted and articulated without any doubt:
(i) Mode of dying declaration is not prescribed. It can be in any form. It is the substance and not the form which matters. However, it would be expedient and advisable to record a dying declaration in a question-answer form so that version of the deceased can be examined and appreciated while adjudicating upon culpability of the accused. Therefore, merely because dying declaration is not recorded in question-answer form, it does not necessarily mean that it cannot be acted upon or it loses its value or probative authenticity.
(ii) Unlike English law, Section 32(1) makes relevant not only the statement as to the cause of death but as to the circumstances of transaction resulting in death of the maker.
(iii) Section 32(1) widens the scope and sphere than the English provision in respect of not only the cause of death stated by the deceased but any of the circumstances of transaction which result in his death in case in which because of that person, the death comes into question. The test of proximity has to be judged and applied.
(iv) It cannot be laid down that dying declaration should invariably be corroborated by material particulars of other evidence.
(v) It cannot be laid down as a general proposition of law that dying declaration is a weaker kind of evidence than other pieces of evidence. In fact, it is like any other piece of substantive evidence.
(vi) It also 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 and reinforced by some other evidence.
No doubt, before recording a dying declaration, the medical evidence, if available, may be obtained and ascertained so that authenticity cannot be questioned about the evidence of the declarant. However, it also cannot be laid down as a general proposition that without medical evidence or without opinion of the medical officer, a dying declaration can never be recorded and if recorded, it will become less effective. In fact, the person who records the dying declaration must ascertain about mental condition and fitness of the declarant. If mental condition is found to be fit so as to make rational statement of events, if the person who records such statement is satisfied, then he can record the said statement by ascertaining the medical opinion. So, the test is - whether the person making the dying declaration is in a position to understand and is in a position to make rational statement or not. If the person who records the said statement is satisfied that the victim of the offence is in position at that point of time to make a rational statement, then he can record statement of the declarant.
31. There are certain tests through which a dying declaration has to pass through. According to the settled proposition of law, the anxiety of Court will be to see that the dying declaration passes through certain tests and conditions. It would be appropriate to highlight some of the important conditions:
(i) whether the dying declaration is outcome of tutoring;
(ii) whether the declarant was mentally fit and balanced to make a rational statement;
(iii) whether there was sufficient opportunity for the dying man for observation. For example, whether there was sufficient light or not if the crime was committed at night;
(iv) whether the dying declaration made by the deceased had been impaired with malice or mala fide;
(v) whether the capacity of the person to remember the facts stated had not been impaired at the time when he was making the statement;
(vi) whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties;
(vii) whether the statement has been consistent throughout if there was sufficient opportunity of making a dying declaration apart from the official record of it.
Therefore, in order to pass the test of reliability a dying declaration has to be subjected to very close scrutiny keeping in view the fact that the statement has been made in absence of the accused who had no opportunity of testing the veracity of the statement of the deceased by cross-examination. Once a dying declaration has passed through the tests and is found rational, voluntary, unprompted, untutored and the correct version of the statement of the deceased, then in that case, it can form the sole basis for conviction.
32. The main incident was preceded by beating to deceased Saroj by both the accused, as a result of which, she had to go to the ground floor from the first floor where the husband resided and seek shelter, which is also very important in connection with the dying declaration made by the deceased. It is clearly noticed from the evidence of PW 3 Becharbhai that he had witnessed the earlier incident which preceded the main incident. It is also very relevant in view of provisions of Sub-section (1) of Section 32 of the Evidence Act which reads as under:
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
No doubt, the expression 'circumstances of the transaction which resulted in his death' is, not as wide in its import as the circumstantial evidence and is narrower than res gestae. The statement may be made before the cause of death has arisen or before the deceased has any reason to anticipate of being killed. The circumstances must be circumstances of the transaction; general expression indicating fear or suspicion, whether of a particular individual or otherwise will not directly relate to the occasion of the death will not be admissible. But the statement made by the deceased that he was proceeding, or that he was going to meet a particular person or that he had been invited by such person to meet him, would each of them be circumstances of the transaction and would be so whether the person unknown was or was not the person accused. Such a statement might indeed be exculpatory of the person accused.
33. In Sharad v. State of Maharashtra AIR 1984 SC 1922, the Supreme Court formulated the following provisions on a review of the cases:
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of person who dies whether the death is a homicide or a suicide, provided the statement relates to the cause of death or exhibits circumstances leading to the death. In this respect.... The Indian Evidence Act.... Thought it necessary to widen the sphere of Section 32....
(2) The test of proximity cannot be too literally construed and practically reduced to cut and dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn form the context. Sometimes, statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time.
Therefore, in our opinion, the earlier incident which preceded few minutes ago before the main incident is also very relevant and important circumstance and admissible evidence under Sub-section (1) of Section 32. Not only that, even the earlier conduct of the spouses and ill-treatment meted out to the wife at the hands of the husband and other members of his family as a result of which she had to make or voice the grievance before the relatives and parents and also to abandon the matrimonial house to seek shelter in Nari Sanrakshan Gruh will be very relevant insofar as provisions of Section 20 of the Evidence Act is concerned.
In the circumstances, we have no hesitation in finding that the assessment and evaluation of the testimonial collections and documentary evidence made by the trial Court is quite justified and we are satisfied that it requires no interference.
Case Law:
34. Before we conclude, we would like to refer to the decisions relied on by both the sides.
Law of dying declaration as such is extensively explored and very well settled. Nonetheless, since we are addressed at length on the case law, in support of their rival versions, we would like to highlight the decisions relied on:
The learned Advocate for the appellants has placed strong reliance on the decision of the Hon'ble Supreme Court rendered in Kamla v. State of Punjab . In that case, there were four dying declarations made by the deceased in which there were glaring inconsistencies in respect of involvement of the accused. One of the dying declarations was also indicative of the incident as an accident. It was in that context that it was held that conviction under Section 302 based on one of the dying declarations involving the accused is not sufficient and is liable to be set aside. Accordingly, the conviction was quashed. The factual scenario in the present case is altogether different. In our case, as such, there is no serious discrepancy out of two dying declarations and two written dying declarations clearly involving both the accused persons. Merely because name of only A-2 was shown in the history, it cannot be said that the accused persons are entitled to benefit of doubt. In reality, the medical history can constitute declaration or statement relevant under Section 32(1) of the Evidence Act provided it is successfully shown by the prosecution that the history was narrated by the victim and it was recorded by the concerned officer or medical person as narrated by the victim. Otherwise, the important history recorded by the hospital personnel or medical officer concerned at the time of entry in the history cannot be said to be a dying declaration. Otherwise also, the history is for a limited purpose to note or to ascertain the cause of injuries and not the offence. Thirdly, even if it is cryptically mentioned that one of the accused persons was the real culprit, it does not necessarily ipso facto lead to an inference of absence of the other. In the present case, the medical officer Dr. Sharma has in clear terms admitted that he did not know as to who gave the medical history. Therefore, the medical history in the present case, in view of its own facts, cannot be said to be dying declaration covered by the provisions of Section 32(1) of the Evidence Act. Therefore, the defence is not in a position to make any capital out of the said judgment.
35. Reliance is also placed on the decision of the Hon'ble Apex Court in State v. Laxman Kumar . We have dispassionately examined this decision. Dying declaration of a bride-burning was recorded by the investigating officer and not by a Magistrate or by a doctor without explaining non-availability of the Magistrate or a doctor. It was not signed by the deponent although literate and not proved to be incapacitated to sign by the burn injuries. The time of the statement was not indicated in the document. At the time when the declaration was recorded, none of the relatives was present. The fitness of the deponent to make the dying declaration was also doubtful. Therefore, taking into consideration the peculiar facts of the case, the dying declaration was not found acceptable. The facts of the present case do not attract the ratio of the said decision. In our case, two written dying declarations are recorded, one by the Executive Magistrate and the other by the investigating officer and we have found that both the dying declarations are truthful, voluntary and dependable. They are also corroborated by two oral dying declarations made before the relatives. Hence, the above decision is not of any help to the defence.
36. Reliance is then placed on Charipalli Shankarrao v. Public Prosecutor . This decision as such, does not help the defence. Statement of the declarant that the accused poured kerosene and oil on her body and set her on fire was found cogent and reliable. There was no reason to forcibly implicate the accused in the occurrence. On the contrary, the evidence of the prosecution witnesses was found truthful and conviction order was held to be proper. Not only that, it is also held that police head constable is also competent to record the dying declaration in the circumstances. Hence, the said decision is also of no avail to the defence.
37. In Thurukanni Pompiah v. State of Mysore , the Hon'ble Apex Court has expounded the provisions of Section 32(1) of the Evidence Act which are relied on by the defence. It has been held in the said case that dying declaration is relevant and material evidence in the prosecution of offences and a truthful and reliable dying declaration may form the sole basis of conviction, even if it is not corroborated. However, a caution is sounded that the Court must be satisfied that the declaration is truthful and reliability of the declaration should be subjected to close scrutiny considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and material and integral portion of the version made by the deceased of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without other corroboration. In the case on hand, the dying declarations recorded by the Executive Magistrate and the investigating officer are found to be trustworthy, reliable and corroborated by the two oral dying declarations and also the motive and also the eye-witness Becharbhai Mistry. Hence, the above decision cited on behalf of the defence is also of no avail to them.
38. Reliance is then placed on State v. Madha Bhana 1994 (2) GLR 900, by the learned Advocate for the defence. Relying on this decision, it was contended that septicemia is not proved to be the direct result of burn injuries and therefore, cause of death cannot be said to be burns. In the above case, the victim had sustained knife blows; whereas the death of the victim was not on account of infliction of knife blows. It was, therefore, observed by this Court that the statement by the deceased cannot be used as dying declaration under Section 32(1) as the declaration made by the deceased cannot be said to be statement as to the cause of death and/ or circumstances of the transaction which resulted into death. There was clear medical evidence on record to show that the victim had not died on account of injuries inflicted on her with the help of knife. So, the cause of death was not because of knife blows. It was in that context and looking to the medical evidence on record that it was found that the injuries had no connection whatsoever with the death of the victim and once there is no nexus between the death and the statement, it cannot be said to be reliable and admissible under Section 32(1). So is not factual scenario in the present case. According to the case on hand, the cause of death was septicemia because of burn injuries. PW 4 medical officer M. H. Mehta in her evidence at Exh. 19 has clearly testified that the cause of death in this case is septicemia as a result of extensive burns over the body. Post-mortem report produced at Exh. 20 fully supports the version of the doctor. Therefore, in the present case, there is direct nexus and result between death and the statement as regards burn injuries caused by the appellants-accused persons. Therefore, the said decision is not applicable. Hence, the reliance placed on the said decision is not applicable to the present case. Again, on the same point, reliance is placed on Dev Raj v. State of Punjab . In the case before the Hon'ble Apex Court, the death of the deceased was not direct result of injuries caused during the occurrences that, the deceased died one and half months after the incident. In between, he was operated and for the purpose of surgeries, several incised wounds were made as noticed on the body of the deceased. Again, second haemorrhage resulted in the death on the day when the right arm of the deceased was amputated. It was, therefore, held that there was no case of offence committed under Section 302. Obviously, if the death has not resulted on account of injuries sustained, there would not arise any question of punishment for the offence under Section 302; whereas, in the present case, unfortunate, hapless, helpless Bai Saroj was done to death by putting her to fire out of joint adventure of the accused and the direct cause of death was septicemia out of burn injuries caused to her. Therefore, in the present case, the said decision is not applicable. On the contrary, the facts of the present case fully establish the offence under Section 302.
39. A half-hearted attempt was made by referring to the decision in Balak Ram v. State of U.P. , contending that it is not advisable to base conviction on the basis of dying declaration made before the investigating officer. Firstly factually, the submission raised before us is not sustainable. In our opinion, the dying declaration recorded by the investigation officer Chavda, Exh. 29 is found quite reliable and trustworthy. Apart from that, in the case before the Supreme Court, the only dying declaration which was relied on was not signed by the declarant or otherwise. It was, therefore, held that it was not prudent to base conviction on a dying declaration particularly when it was not signed by the declarant. Therefore, no capital can be made out of the said decision.
Likewise, reliance on the decision of the Hon'ble Apex Court in Dalip Singh v. State of Punjab AIR 1979 SC 1173 is also misplaced in light of the facts of the present case. Dying declaration was not relied on in the case before the Hon'ble Supreme Court in light of the peculiar facts and circumstances and since it was found that the statement of the deceased recorded by the police in the mental condition of the deceased was doubtful. Therefore, this decision is also of no avail to the defence.
40. Prosecution has also placed reliance on the following decisions in support of the contention that the appeals are meritless:
Reliance is placed on Tehal Singh v. State of Punjab . The observations made by the Hon'ble Apex Court in para 4 are very relevant. It has been observed that the head constable who recorded the dying declaration had stated in his evidence that he put the questions to the deceased and recorded his answers. He stated that he recorded what the deceased had stated in his own way. It does not mean that he recorded something other than what the deceased stated. On the contrary, it was found by the Hon'ble Apex Court that all it meant was that language was his but the substance was that of the deceased. Therefore, no infirmity could be attached to dying declaration on this count. This decision is cited to counter the submission that the dying declaration was not recorded by the investigating officer in question-answer form. As observed above, there is no prescribed or set form for recording dying declaration. As such, it is the substance and not the form which plays important role in determining the guilt of the accused. Therefore, this decision supplies material reinforcement to the contentions raised on behalf of the prosecution.
41. In Rabi Chandra v. State of Orissa , it has been held that recording of dying declaration preferably should be in question-answer form. However, non-recording of dying declaration in question-answer form is not fatal. It is also further observed that even absence of eye-witnesses would not by itself introduce infirmity in the dying declaration.
42. The learned Addl. P.P. has placed strong reliance on a Constitution Bench decision of the Hon'ble Apex Court in Bhayani Luhana Radhabai v. State of Gujarat 1977 SCC (Cri.) 181. In this case, the material and relevant principles of law relating to dying declaration are extensively and elaborately expounded. What are the important principles of dying declaration are very well established. This decision was rendered by the Bench of three Hon'ble Judges which was also a case of bride burning wife of the accused, Mukta aged about 23. After elaborate discussion of the facts and material propositions relevant to the law of dying declaration, the following propositions have been succinctly propounded:
(i) A dying declaration stands on the same footing as any other evidence and it is to be judged in the surrounding circumstances and with reference to the principles governing the assessment of evidence.
(ii) If the deceased had several opportunities of making dying declarations, apart from the official record of it and whether the statements have been made at the earliest opportunity and was not the result of torturing by interested parties.
(iii) The Court must, in order to test the reliability of a dying declaration, keep in view the circumstances like the opportunity of the dying man for observation should also be considered.
In Bhayani's case (supra), the several dying declarations, as in the present case, had been made and the defence had contended that there was accidental death. It was found to be false. The dying declaration of deceased Mukta was accepted and preferred than the dying declaration recorded by the Taluka Magistrate. There was discrepancy between the dying declaration made by the deceased before the police head constable and the one made before the Taluka Magistrate. The infirmity was held to be not of any consequence as the dying declaration recorded by the police head constable at the earliest point of time was found quite reliable and trustworthy and, therefore, though there was discrepancy and contradiction in the dying declaration recorded by the Taluka Magistrate, the dying declaration recorded by the police head constable was preferred. In short, the principle laid down in that case is quite clear that the ultimate anxiety of the Court should be to satisfy itself about the genuineness and trustworthiness of the voluntary version of the deceased. In the present case, the first written dying declaration came to be recorded by the police as at Exh. 29. It was 2-30 a.m., in the early morning on the next day which involves both the accused persons with past history and the motive for the same. Even in the dying declaration before the Executive Magistrate, it cannot be contended that A-1 was totally excluded. He was present when the incident occurred. As we have observed hereinabove, the last words in the dying declaration before the Executive Magistrate clearly involved both the accused. Apart from that, it is settled proposition of law that merely because there is omission in ascribing overt-act to any of the accused persons, it does, not necessarily mean that it is vital contradiction or significant discrepancy. At best, it can be said that there is no specific role assigned to the other accused, but it cannot be said to be addition to what was stated earlier in the other dying declaration. Therefore, the decision rendered in Bhayani's case (supra) is directly applicable and attracted to the facts of the present case.
43. Reliance is also placed on the decision of the Hon'ble Apex Court in Meherban and Ors. v. State of M.P. and it has been contended that dying declaration can be relied on to base the conviction even in the absence of motive. It has been so held in the said case that dying declaration is corroborated from the medical evidence and last articles recovered from the accused persons and no explanation from them in their examination under Section 313 of the Criminal Procedure Code. The dying declaration was accepted even in the absence of any motive and without any material to show that the deceased would falsely implicate the accused persons. Similarly, in Kumbhar Dhirajlal Mohanlal v. State of Gujarat , it has been held by the Hon'ble Apex Court that the dying declarations before the medical officer and Executive Magistrate when found reliable and when made in a fit state of mind, conviction can be founded upon only on dying declaration without motive.
44. In Ravi Chander v. State of Punjab 1988 SCC (Cri.) 1004, it has been held by the Hon'ble Apex Court that in case of bride-burning, even when there are three dying declarations and first dying declaration recorded by P.S.I. making out a case of accidental death, was not found acceptable in view of subsequent two dying declarations. No infirmity was noticed in subsequent two dying declarations. Second dying declaration recorded by the Executive Magistrate was found quite reliable. In absence of any circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration, the evidence of such witness cannot be discarded. Incidentally, in that case, dying declaration recorded by the Executive Magistrate was subsequently corroborated by the oral dying declaration made to the brother. It was held that second and third dying declarations were reliable. In short, the principle settled and enunciated in this decision is that genuineness of dying declaration recorded by the Executive Magistrate or an officer cannot be doubted on facts merely because delay of about a fortnight in sending the same to the investigating officer. In the present case, at the earliest point of time, dying declaration was recorded by P.S.I. Chavda followed by written dying declaration by the Executive Magistrate and followed by two oral dying declarations.
45. In Babu Ram v. State of Punjab 1998 SCC (Cri.) 1043, it has been held that dying declaration recorded by the officer in a fit state of mind of the declarant when the statement was made, is proved, the same can be relied on. In that case, declarant was suffering from 60% burn injuries. The evidence of the doctor was clear that the deceased was in fit state of mind when she made the statement. The Executive Magistrate also recorded the dying declaration when he inquired from the doctor about her mental condition and on finding her fit, he recorded her statement. Second dying declaration was also recorded by the police giving the same version. In the circumstances, dying declarations were held to be rightly relied upon. It is very clear from the evidence of Dr. Lapsiwala that he had examined the declarant and found her mental condition fit for recording her statement. The Executive Magistrate has clearly stated that he on his own ascertained that the declarant was quite fit mentally to give her rational statement. Therefore, the dying declarations made by the deceased are quite reliable and truthful. This view is also fortified by the decision of the Hon'ble Apex Court in Ram Bihari v. State of Bihar 1998 SCC (Cri.) 1985. It was held that though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused.
In the present case, two written dying declarations are in material particulars corroborated by two oral dying declarations and the evidence of eye-witness Becharbhai Mistry.
46. Again, we tempted to mention one more important aspect with regard to the conduct of the husband A-1. The plea that he was not involved and was falsely implicated is even farthest from truth. It is very clear from the evidence and it is an admitted position that both the accused were present at the time when the incident. happened. A-1 is the husband, if not better-half and A-2 is the brother-in-law, if not the real brother. What will be the natural conduct of such persons ? How would they react ? What will be their perceptions ? Obviously, in a ghastly crime committed by somebody else or even in case of accidental, or even in case of suicide burn case of wife, the spontaneous reaction of the close relative like the husband and brother-in-law would be to atleast make serious attempt to put out the fire on the person of the victim. Apart from that, even on humanitarian ground, one would be tempted to make efforts to put out the fire. In the present case, admittedly, no attempt has been made either by the husband or her brother-in-law to put out the fire. Not only that, the husband also did not care to provide or to afford victim emergency medicare. Not only that, the neighbour had sent a call to the police station which in turn had arranged for Ambulance Van from the hospital in which helpless victim was shifted for medical treatment. From the time of burning till first aid was administered in the hospital, it was not less than two hours during which these two accused persons had done nothing which would even whisper about their innocence. On the contrary, the conduct exhibited by the accused persons all throughout steals the heart of law. The main incident was preceded by not only mental torture, physical harassment but physical violence upon a helpless woman and then making a show that her life could be saved as she was burnt. This is nothing but only and only indicative of criminality and complicity on their part so as to see that unwanted, undesirable, dejected and rejected Bai Saroj who allegedly did not take care of the step-children, to be done away with to get rid of her. This sort of conduct on the part of the husband and the close relative like brother-in-law is demonstrably condemnable, undoubtedly objectionable and evidently corroborating the prosecution case and directly fitting in the link which undoubtedly point at the ghastly culpability on the part of both the accused. Apart from truthful, voluntary, reliable, dependable four dying declarations supported by the evidence of eye-witness Becharbhai Mistry who is the uncle of the deceased coupled with the motive successfully spelt out from the record, this Court has not the slightest hesitation in holding that the conviction and sentence under Section 302 read with Section 114, I.P.C., against the appellants-accused is quite justified requiring no interference throwing the appeals overboard. Accordingly, both the appeals are dismissed.