Himachal Pradesh High Court
State Of H.P vs Dalip Singh And Others on 28 April, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 582 of 2008
Reserved on: 13.04.2016
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Date of decision: 28.04.2016
State of H.P. ... Appellant
Versus
Dalip Singh and others ... Respondents
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Coram :
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The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. V.S. Chauhan, Addl. Advocate General
with Mr. J.S. Guleria, Assistant Advocate
General.
For the respondents: Mr. Lakshay Thakur, Advocate.
Ajay Mohan Goel, J.:
This appeal has been filed by the State against judgment passed by the learned Sessions Judge, Mandi, in Sessions Trial No. 13 of 2006 dated 30.04.2008, vide which learned trial Court has acquitted the accused persons by holding that the prosecution has failed to prove the case against them for the offences mentioned beyond reasonable doubt.
2. We have heard the learned counsel for the parties at length and have also gone through the record.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 23. The case of the prosecution was that deceased Pawna Devi was married to accused Dalip Singh about 8 years back as per Hindu rites and ceremonies. Though she was treated properly by her in-laws .
initially for a period of 3 years but thereafter their behaviour towards her became rude and cruel. Deceased Pawna Devi also gave birth to two sons who at the relevant time were 5 years and 3 years old respectively. The accused demanded Palkin, fridge and Batlohi from the of parents of the deceased who were not able to fulfill the said demands.
On this account, the deceased was subjected to beating by the accused who were also accusing the deceased of not performing her household rt duties properly. Parents of Pawna Devi reported the matter to the Gram Panchayat and Pradhan Gram Panchayat with other respectable persons unsuccessfully tried to prevail upon the accused. On 16.03.2005, deceased was abused and beaten up by her husband on the ground that she was not properly preparing the meals. On 17.08.2005 at around 5.00 A.M. the deceased was again abused and subjected to beatings by her husband. In these circumstances, Pawna Devi committed suicide by setting herself ablaze. After the incident, the deceased was taken in burnt condition by her husband and other persons to CHC Sarkaghat. An application was moved for medical examination of Pawna Devi by HC Rajender (PW-11) and Pawna Devi was accordingly examined by Dr. M.R. Verma (PW-9). MLC Ext. PH was issued after the examination by the Doctor and Rajender Pal made entry in Daily Diary No. 9. Statement of Pawna Devi was recorded vide Ext. PJ on the basis of information given to the police by the Doctor. As the condition of Pawna Devi was critical, she was referred to Zonal Hospital Mandi. Information was received from the Doctor of Zonal ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 3 Hospital Mandi on 29.08.2005 that a lady in burnt condition wants to make statement and accordingly Kashmir Singh (PW-12) was deputed to visit the Zonal Hospital Mandi, who recorded the statement of Pawna .
Devi in the presence of Medical Officer on duty vide Ext. PN. On the basis of said statement, the S.H.O. registered case against the accused. Pawna Devi was referred to IGMC Shimla, who later on succumbed to the burn injuries.
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4. In support of its case, the prosecution examined in all 14 witnesses. PW-1, PW-2 and PW-3, all hail from the village of the accused. PW-4 is the mother of the deceased. P-5 is the Ward Panch of rt Gram Panchayat Dhalwan. PW-6 is the father of the deceased. PW-7 was the Pradhan of Gram Panchayat Dhalwan. PW-8 is the Doctor who conducted the postmortem examination of the dead of the deceased.
PW-9 is the Doctor who attended the deceased when she was brought to the hospital by the accused with the alleged history of burn injuries on 18.08.2005. PW-10 is the grand-father of the deceased. PW-11 had moved application Ext.PH/1 for the medical examination of Pawna Kumari and to seek the opinion of the Medical Officer on 18.08.2005. PW-12 recorded the statement of the deceased on 29.08.2005. PW-13 is the Investigating Officer and PW-14 had visited the shop-cum-house of the deceased Pawna Kumari on 18.08.2005 and taken into possession pieces of burnt clothes. He had also deputed H.C. Kashmir Singh to record the statement of Pawna Kumari.
5. PW-4 Smt. Savitri Devi, mother of the deceased has stated that her daughter was married to accused Dalip Singh about 8 years ago and after her marriage, she used to live in the house her in-laws.
She often used to complain of maltreatment and beatings at the hands ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 4 of the accused. The deceased gave birth to a son after 3 years. The mother-in-law of the deceased was demanding fridge and Batlohi and other accused, namely, Promila Devi and Jay Kumar (brother and sister-
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in-law of the deceased) used to nag the deceased for bringing insufficient dowry. She further stated that she reported the matter to their local Panchayat as well as to Pradhan Sunil Kumar and Ward Panch Dei Rani, who tried to prevail upon the accused but were not of successful. Her daughter was subjected to great torture and about 10 days prior to her death, she herself had left her daughter in her matrimonial house alongwith her husband. Ward Panch Dei Rani and Pradhan Sunil rt also accompanied the deceased to her matrimonial house. She advised the accused to mend their behaviour towards her daughter. On 18.08.2005 she came to know that her daughter died of burn injuries caused by the accused. Thereafter, she alongwith her husband came to Zonal Hospital Mandi. Her daughter had died on account of maltreatment given to her by the accused.
6. PW-6 Shri Vidhi Chand, father of the deceased, has stated that his daughter was married to the accused Dalip about 7 years prior to the death and after 3 years of marriage, accused started maltreating his daughter as they w ere demanding palquin, batlohi and fridge. He was not in a position to fulfill the demands as he has other daughters also. Whenever her daughter used to come to his house, she was complaining of maltreatment and beatings. 15-20 days before her death, the deceased had visited his house and told that the accused was demanding cash i.e. one fixed deposit of Rs.20,000/-, which had matured at the relevant time. She was insisting that the said money would be used for education and welfare of the children and as such, ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 5 cash should not be given to the accused. He visited the house of the accused at least 10 times with Pradhan Sunill and Dei Rani. The accused always gave assurance to mend their behaviour but after 3-4 .
days they again used to start maltreating the deceased. He also made complaint to P.P. Bladwara wherein accused entered into a compromise and assured not to maltreat his daughter. The deceased suffered from burn injuries on 18.08.2005 and was brought to Zonal Hospital Mandi and of he also came to Zonal Hospital Mandi. The condition of his daughter was critical. He alongwith Ranvir Singh came to the office of Deputy Commissioner, Mandi and made complaint. His daughter informed him rt in the hospital that the accused have poured kerosene oil on her body and put her on fire. This was done as the deceased had not given them Rs.20,000/-.
7. PW-10 Shri Sukh Ram, grand-father of the deceased, had also stated that Pawna was married to accused Dalip Singh about 7 years prior to the incident and though she was treated properly for 3 years by the accused. However, thereafter they started maltreating her and harassing her for not bringing sufficient dowry. After 3 years of marriage he alongwith Pradhan Sunil and Ward Panch Dei Rani took the deceased to the house of the accused and advised the accused to mend their behaviour. However, the deceased was again given beatings by the accused and accordingly, the matter was reported by them at P.O. Hatli. This was followed by a compromise between the accused and them and Sunil Pradhan and Dei Rani were also present at that time. The deceased was treated properly for about a month but thereafter, again the accused started maltreating her and Pawna came to his house. A local Panchayat was arranged at his ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 6 house which was attended by Pradhan Sunil and Pradhan of the accused and again Pawna was sent to the house of the accused on the assurance given by the accused for treating her properly. On .
18.08.2005 he came to know from Sunil Pradhan that his grand-
daughter was killed by the accused by pouring kerosene oil on 18.08.2005. He stated that this was done as their other demands could not be fulfilled.
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8. Thus, the case of the prosecution was that Pawna Devi was subjected to maltreatment and beatings by the accused for brining insufficient dowry. This maltreatment commenced after 3 years of the marriage rt as the demands of dowry could not be met because the parents of the deceased were poor. PW-4, PW-6 and PW-10 have also deposed in the same line.
9. In the present case, the deceased had given two statements on different dates after occurrence of the incident. Her first statement is Ext.PJ dated 18.08.205. In the said statement, the deceased had mentioned that on 18.08.2005 she was burning the Bhatti at around 6.0 A.M. As soon as she increased the oil in the said Bhatti, all of a sudden, the fire flamed up and engulfed her body. At the relevant time Madan Kumar son of Shri Jind Ram was present there who called accused Dalip Kumar after hearing her cries and they saved her from burning and brought her to RH Sarkaghat for treatment. She further stated that the incident was a result of her carelessness and no other person was responsible for the same and she did not intend to initiate any proceedings in this regard.
10. Her second statement has been recorded on 20.08.205, Ext. PN. In this statement, the deceased had stated that her husband, ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 7 sister-in-law Kaushalya Devi and mother-in-law were maltreating her for almost 3 years and were physically abusing her and they used to say that the deceased was not doing any work and they used to level .
various allegations against her. She complained this to the Panchayat and the Panchayat also tried to explain the accused. Even on 16.08.2005 her husband physically assaulted her and verbally abused her on the ground that she was not preparing meals properly. On of 17.08.2005 around 5.00 A.M. again her husband physically and verbally abused her and as a result, getting fed up with the atrocities of her husband, mother-in-law, brother-in-law and sister-in-law, she had set rt herself ablaze by pouring kerosene oil on her. The statement she had given on 17.08.205 was under the pressure of her husband and that she was giving this particular statement in her full senses.
11. At this stage, it is relevant to refer to Section 32 of Indian Evidence Act. Section 32(1) reads as under:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or 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 ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 8 were made, under expectation of death, and whatever may be he nature of the proceeding in which the cause of his death comes into question."
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12. It is well settled position of law that in case there are more than one dying declarations then the Court has to scrutinize all of them to find out if each one of them pass the test of trustworthiness.
The Court also must further find whether different dying declarations of are consistent with each other in material particulars before accepting and relying upon the same. The Apex Court has consistently held that there can be more than one dying declarations and if there is no rt inconsistency between them, all can be used against the accused for proving the guilt. [Jaishree Anant Khandekar Vs. State of Maharashtra, (2009) 11 SCC 647, State of Karnataka Vs. Shariff, 2003) 2 SCC 473 and (1982) 1 SCC 700, Mohanlal Gangaram Gehani Vs. State of Maharashtra, (1982) 1 SCC 700.] The Apex Court has further held in the case of Tapinder Singh Vs. State of Punjab and another (AIR 1970 S.C. 1566) that if the dying declaration is acceptable as truthful then even in the absence of other corroborative evidence, the Court can act upon it and convict the accused. The following observations are made by the Apex Court in Para-5 of the judgment:-
"(5) The dying declaration is a statement 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 and it becomes relevant under S. 32 (1) of the Indian Evidence Act in a case in which the cause of that person's death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor is the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 9 dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to .
put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances. This Court in Kushal Rao v. State of Bombay, 1958 SCR 552 at pp. 568-569 = (AIR 1958 SC 22 at pp. 28-29) laid down the test of reliability of a dying declaration as follows : "On a review of the relevant of provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the rt Full Bench of the Madras High Court, aforesaid, (1) 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; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footings as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 10 the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities .
of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
Hence in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, of 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.
rt But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
This view was approved by a Bench of five Judges in Harbans Singh, v. State of Punjab, (1962) Supp 1 SCR 104 = (AIR 1962 SC 439). Examining the evidence in this case in the light of the legal position as settled by this Court we find that the dying declaration was recorded by the Magistrate within four hours of the occurrence. It is clear and concise and sounds convincing. It records :
::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 11"Today at 4.45 p.m. my Sandhu (wife's sister's husband) Tapinder Singh fired shots with his pistol at me in the presence of Harnek Singh, Sher Singh and Gurdial Singh at the taxi stand. He suspected that I had illicit relations with .
his wife. Tapinder Singh injured me with these fire shots."
Considering the nature and the number of injuries suffered by the deceased and the natural anxiety of his father and others present at the spot to focus their attention on efforts to save his life we are unable to hold that he had within the short span of time between the occurrence and the making of of the dying declaration been tutored to falsely name the appellant as his assailant in place of the real culprit and also to concoct a non-existent motive for the crime. It is rt unnecessary for us to refer to the earlier declarations contained in Ex. PM, Ex. DC and Ex. PH/13 because the one recorded and proved by the Magistrate seems to us to be acceptable and free from infirmity. If the dying declaration is acceptable as truthful then even in the absence of other corroborative evidence it would be open to the court to act upon the dying declaration and convict the appellant stated therein to be the offender. An accusation in a dying declaration comes from the victim himself and if it is worthy of acceptance then in view of its source the Court can safely act upon it. In this case, however, we have also the evidence of eye witnesses Gurdial Singh, (P. W. 7), Harnek Singh (P. W. 8) and Sher Singh (P. W. 9) whose testimony appears to us to be trustworthy and unshaken. No convincing reason has been urged on behalf of the appellant why these three witnesses and particularly the father of the deceased should falsely implicate the appellant substituting him for the real assailant. It is not a case in which, along with the real culprit, someone else, with whom the complainant has some scores to settle, has been added as a co-accused. The only argument advanced on behalf of the appellant was that the deceased was shot at somewhere also and not at the place where the prosecution witnesses ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 12 allege he was shot at. It was emphasised that these three witnesses were not present at the place and time where the occurrence actually took place. This submission is, in our view, wholly unfounded and there is absolutely no material .
in support of it on the existing record. The probabilities are clearly against it. The fact that Hari Singh, A. S. I. (P. W. 2) went to the place of occurrence and from there he learnt from someone that the injured person had been taken to Dayanand Hospital clearly negatives the appellant's suggestion. The fact that the A. S. I. did not remember the of name of the person who gave this information would not detract from its truth. On the contrary it appears to us to be perfectly natural for the A. S. I. in those circumstances not rt to attach much importance to the person who gave him this information. And then, the short duration within the injured person reached the hospital also shows that those who carried him to the hospital were close-by at the time of the occurrence and the suggestion that Gurdial Singh (P. W. 7), Harnek Singh (P. W. 8) and Sher Singh (P. W. 9) must have been informed by someone after the occurrence does not seem to us to fit in with the rest of the picture. We are, therefore, unable to accept the appellant's suggestion that the deceased was shot at somewhere else away from the place of the occurrence as deposed by the eye witnesses."
13. The Apex Court in Dandu Lakshmi Reddy Vs. State of A.P. (1999) 7 SCC 69 has held that when the sphere of scrutiny of the dying declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to this very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 13 the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course.
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14. The Apex Court has further held in Sanjay Vs. State of Maharashtra (2007) 9 SCC 148, as under:
"[12] In our opinion this appeal deserves to be allowed by giving the benefit of doubt to the appellant. The only evidence against the appellant are the three alleged dying of declarations of the appellant's wife Seema. In the first dying declaration Seema stated that while she was pumping the stove it suddenly burst and her saree caught fire. She rt shouted loudly and then her husband rushed towards her and extinguished the fire by pouring water on her. This is the first dying declaration and nothing has been alleged against the appellant in it. Rather it shows that the appellant tried to save his wife Seema. In the subsequent dying declaration Seema is said to have stated that she poured kerosene on her in person and set herself ablaze because she was angry with her husband.
[13] The prosecution version is that the subsequent dying declarations made by Seema alleging that she committed suicide because there used to be quarrels between her and her husband (the appellant) are corroborated by two letters alleged to have been written by Seema to her parents. The first letter (Ex.28) appears to be dated 24.1.1994. It shows that her husband (the appellant) does not behave properly with her, he daily returns home late at night in a drunken state and because of it there used to be quarrels between her and the appellant. She also expressed in the said letter that the appellant was also willing to give her divorce. Seema expressed that she felt repentful as she married the appellant of her own will. She further expressed that she felt no charm in leading such life.::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 14
[14] Another letter (Ex.29) is dated 26.7.1994 i.e. about five months before the incident of suicide. The said letter reiterates the same state of affairs mentioned in the earlier letter (Ex.28). The evidence of PW-1 Vimal (the mother of .
Seema) and PW-2 Wamanrao (the father of Seema) corroborates the unhappiness faced by Seema. Hence it is alleged that the so called first written dying declaration (Ex.51) would not render the voluminous evidence untrustworthy.
[15] The trial court, as well as High Court, were of the of view that the evidence on record shows there was cruelty on the part of the appellant which drove his wife to suicide. [16] In our opinion in view of the different dying rt declarations it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt. It cannot be said in this case that the prosecution has proved the appellant's guilt under Section 306 I.P.C. of abetting the suicide beyond reasonable doubt."
15. The Apex Court has further held in Puran Chand Vs. State of Haryana (2010) 6 Supreme Court Cases 566, that the Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. It has been further held that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 15 dying declaration. The Apex Court has further observed that number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy .
and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives.
Number of times the relatives influence the investigating agency and bring about a dying declaration. Therefore, the dying declarations of recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being.
rt When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. It has been further held that it is extremely difficult to reject a dying declaration merely because there are few factual errors committed. The Court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 16 a mechanical approach to the law of dying declaration has to be shunned.
16. The Apex Court has done a comparative study of laws .
of various countries on the point of dying declaration in Jaishree Anant Khandekar Vs. State of Maharashtra, (2009) 11 SCC 647. The relevant Paras 17, 18, 20, 21,22, 23 and 24 of the said judgment are reproduced below:-
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"17. The law relating to dying declaration is an exception to the hearsay rule. The rationale behind admissibility of a dying declaration was best expressed, not in any rt judgment, but in one of the soliloquies in Shakespeare's King John, when fatally wounded Melun wails:
`Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire?
What in the world should make me now deceive, Since I must lose the use of all deceit?
Why should I then be false since it is true That I must die here and live hence by truth?' (See King John, Act V, Scene IV.)
18. Both Taylor and Wigmore in their treatise on Evidence took refuge to the magic of Shakespeare to illustrate the principles behind admissibility of dying declaration by quoting the above passage.
::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 1720. The test of admissibility of dying declaration is stricter in English Law than in Indian Law. Sir James Fitzjames Stephen in 1876 brought out a `Digest of the Law of Evidence' and its introduction is of considerable .
interest even today. The author wrote that English Code of Evidence is modelled on the Indian Evidence Act of 1872. In the words of the author:
"In the autumn of 1872 Lord Coleridge (then Attorney General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was of ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the rt subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed.
It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence."
21. In that book, Article 26 sums up the English law relating to dying declaration as under:-
"Article 26. Dying Declaration as to Cause of Death . - A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made.
Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular."
(emphasis supplied)
22. In Section 32(1) of the Indian Evidence Act the underlined portion is not there. Instead Section 32 (1) is worded differently and which is set out:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 18 or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without .
an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death -
When the statement is made by a person as of to the cause of his death, or to any of the circumstances of the transaction which resulted in his death, in cases in which the rt 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 he nature of the proceeding in which the cause of his death comes into question."
(emphasis supplied)
23. The Privy Council in the case of Nembhard Vs. The Queen, 1982 (1) The All England Law Reports 183 (Privy Council), while hearing an appeal from the Court of Appeal of Jamaica, made a comparison of the English Law and Indian Law by referring to the underlined portions of Section 32(1) of the Indian Evidence Act at page 187 of the report. Sir Owen Woodhouse, speaking for the Privy Council, pointed out the different statutory dispensation in Indian Law prescribing a test of admissibility of dying declaration which is distinct from a common law test in English Law.
24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 19 doctrine of necessity. In many cases victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice.
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American Law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle."
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17. The Hon'ble Supreme Court has further held in State of A.P. Vs. Raj Gopal Asawa and another, (2004) 4 Supreme Court Cases 470. Para-10 of the said judgment is reproduced below:-
"(10) rt Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B, I. P. C. and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act, 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section113-B reads as follows :-
"113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 20 presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304-B, I. P. C. and the wording in .
the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law.
of On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be rt raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, I. P. C.). (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
18. This Court in State of Himachal Pradesh Vs. Kartar Singh has elaborately dealt with this issue i.e. how the Court is to scrutinize dying declarations where there are more than one. (Please see Cri. Appeal No. 76 of 2000 titled State of Himachal Pradesh V. Kartar Singh decided on 03.11.2010). In the said case, this Court has upheld the acquittal of the accused persons by holding that there was nothing on record to suggest that the accused willfully conducted in a ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 21 manner so as to drive the deceased to commit suicide and/or harass the deceased with a view to coerce her with any unlawful demand.
19. The Apex Court in State of A.P. Vs. M. Madhusudhan .
Rao, (2008) 15 SCC 582 has held as under:-
"It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A, I.P.C. The of definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the rt purpose of Section 498-A I.P.C. harassment simpliciter is not 'cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to 'cruelty" punishable under Section 498-A, I.P.C."
20. Applying the aforesaid number of laws, we shall deal with the two dying declarations.
21. It is not a disputed fact that the accused husband brought the deceased to the hospital. It is also not in dispute that PW-9 Dr. M.R. Verma had informed the police about the incident and PW-11 H.C. Rajinder Pal entered this information in the daily diary Ext. PK and thereafter went to the hospital and moved application Ext. PH/1 for medical examination of the deceased and to seek the opinion of the Medical Officer. It is also not disputed that PW-11 recorded the statement of Pawna [Ext. PJ] and obtained MLC Ext. PH from the Medical Officer.
::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 2222. PW-1 Madan Kumar has deposed that he was at the shop of accused Dalip on 18.08.2005 around 6.00 A.M. He went there to have tea. Accused asked his wife to prepare tea and thereafter he .
took tea. Accused went out to ease in nearby fields and he made payment to Pawna Kumari and left the shop. After covering some distance he heard the cries of Pawna and he came back to the shop and found that the deceased was on fire. Since accused was not there he rushed of towards the fields and called Dalip. By the time he came back alongwith Dalip, co-villagers had extinguished the fire from the body of Pawna and then he came back to his house from the spot. PW-2 Shri rt Balwant Singh has also stated that on 18.08.2005 he was at home and he heard the cries of Pawna Kumari. He immediately went towards the shop of Pawna Kumari and found her body on fire. He tried to extinguish the same with boru. In the meantime, Sarita also came, who helped him in doing so and put clothes on the born body of Pawna Kumari. Accused Dalip was not present there at the relevant time. He came there late.
Pawna Kumari was thereafter removed to RH Sarkaghat for treatment.
PW-3 has deposed that Pawna Kumari was known to her and on 18.08.2005 around 6.00 A.M. she heard the cries of Pawna Kumari and rushed towards her house. She covered the body of Pawna with her own Dupatta and the fire on the body was extinguished by Balwant.
Accused Dalip also came there and Pawna in burnt position was taken to RH Sarkaghat. Incidentally no one has seen deceased pouring oil on herself though place of incidence is a shop.
23. Coming back to the two statements made by the deceased, the first statement Ext. PJ was made on 18.08.2005 i.e. on the date of the incident. PW-9 Dr. M.R. Verma has stated that the statement of the ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 23 deceased Ext. PJ was recorded by the police in the hospital and which bears his signatures. As per him, patient Pawna Kumari stated that "while increasing kerosene supply to bhatti by mechanical .
controller on 18.08.2005 at 6.00 A.M., there was sudden flow of high flaming and her tricot clothes caught fire and she got the burn injuries. She further stated that no other person was involved in this context and it was an incident." He has further of stated that when the deceased gave the statement, she was conscious, co-operative and well oriented in time and space. He has also stated that the parents of the deceased were not present at that time. In his rt cross-examination, he has mentioned that he did not find the deceased at that time under any pressure and she was all alone when he made enquiries from her. Thus, from the statement of the said witness, it emerges that at the time when the deceased had recorded her first statement on 18.08.2005 she was conscious, co-operative and well oriented and the statement was not made under any pressure. He has further stated that Pawna was all alone when she made this statement.
From this, it can be safely inferred that her husband was not present with her when she made the statement.
24. On the other hand, in the second statement of the deceased which was recorded on 20.08.2005, she has completely resiled from what was stated by her in her previous statement. In this statement, she has mentioned that the accused were maltreating her for almost 3 years and were physically abusing her and they used to say that the deceased was not doing any work and they used to level various allegations against her. She complained this to the Panchayat and the ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 24 Panchayat also tried to explain them. Even on 16.08.2005 her husband physically assaulted her and verbally abused her on the ground that she was not preparing proper meals. On 17.08.2005 around 5.00 A.M. .
again her husband physically and verbally abused her and as a result getting fed up with the atrocities of her husband, mother-in-law, brother-in-law and sister-in-law, she had set herself ablaze by pouring kerosene oil on her. The statement she had given on 17.08.2005 was of under the pressure of her husband and that she was giving this particular statement in her full senses.
25. It is not in dispute that the second statement has been rt given by the deceased in the presence of her parents. PW-11 H.C. Rajinder Pal who recorded the first statement has mentioned in his cross-
examination that Ext. PJ was recorded as per the version of Pawna (deceased), who voluntarily made the statement. He has further stated that it is correct that the parents of the deceased impressed upon the police to register a case under Sections 498-A, 306 IPC. The second statement has been recorded by PW-12 H.C. Kashmir Singh. He has deposed that he recorded the statement of Pawna Kumari in the presence of the Medical Officer on duty at Zonal Hospital Mandi. He further says that he does not know the name of the Medical Officer on duty who has put his signatures on Ext. PN at point 'A' to 'A'. The prosecution has not produced any material on record to demonstrate that at the time when the second statement of the deceased was recorded, she was in a condition to record her statement. The Doctor in whose presence the statement is alleged to have been recorded has also not been examined by the prosecution. Further, keeping in view the fact that the second statement was recorded in the presence of the parents of ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 25 the deceased the factum of the said statement having been made under the duress or force of the parents of the deceased cannot be ruled out. The evidence produced by the prosecution with regard to .
maltreatment and cruelty allegedly met out to the deceased by the accused is that of the mother of the deceased Smt. Savitri Devi PW-4, her father Shri Vidhi Chand PW-6 and her grand-father Shri Sukh Ram PW-10. Besides this PW-5 Smt. Dei Rani, who was ward Panch of of Gram Panchayat Dhalwan and PW-7 Shri Sunil Kumar, who at the relevant time was Pradhan of the Gram Panchayat Dhalwan, have also deposed to this effect. However, in his cross-examination PW-7 has rt stated that he did not disclose to the police recording his talks with the deceased on 18.08.2005 to the effect that the deceased while being brought to Zonal Hospital Mandi on a vehicle told him that she was being maltreated by the accused, as such, she doused kerosene oil on her body and put herself on fire. None of the above persons have given any specific date and/or timing of the alleged maltreatment meted out to the deceased by the accused. Incidentally, there is no mention of the demand of Batlohi in the statement made by PW-4 under Section 161 Cr.P.C. Though, father of the deceased had made general statement that his daughter used to complain of beatings and maltreatment at the hand of the accused and when she visited his house 15-20 days before the date of the incidence, she had informed him that the accused was demanding cash of FDR of Rs.20,000/-, however, a perusal of the FIR will demonstrate that there is no mention of the said demand in the same. In our opinion, the prosecution has failed to prove specific instances of maltreatment and beatings meted out to the deceased by the accused. The prosecution has further failed to establish as to what ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 26 was that actual conduct of the accused which instigated the victim to commit suicide.
26. Section 32(1) of the Evidence Act is an exception to .
general principle of law that hearsay evidence is not admissible until and unless said evidence has been tested by way of cross-examination and is found to be creditworthy. Dying declaration made by a person has a special sanctity as at that solemn moment a person is not likely of to give an untrue statement. However, at the same time, the dying declaration has also to be tested on the touchstone of credibility and acceptability. This is more so in view of the fact that the accused do not get rt an opportunity of questioning veracity of the statement by way of cross-examination. The law on the subject as declared by the Hon'ble Supreme Court has already been referred above.
27. In the present case, the first dying declaration was made on 17.08.2005 and the Doctor in whose presence this declaration was made has categorically mentioned that the deceased was in disposing mind and was not under the influence of anyone when she had given her statement. The prosecution has not been able to place any material on record to suggest that the said statement was either a forced statement or a procured one. On the other hand, as far as the second dying declaration is concerned, neither there is any endorsement of any Doctor on the said declaration nor there is any certificate produced on record by the prosecution of any Doctor that the deceased was in a disposing position to give the said statement. Further, it is not in dispute that the statement was recorded in the presence of the parents of the deceased. Incidentally, in the second dying declaration dated 20.08.2005, the date of incident is recorded as 17.08.2005, whereas the incident has ::: Downloaded on - 15/04/2017 20:12:15 :::HCHP 27 admittedly taken place on 18.08.2005. This Court is alive to the situation that the attestation from Doctor is not necessary at the time of recording of the statement but keeping in view the peculiar .
circumstances in which the second statement was got recorded, the non-
obtaining of certificate from a Doctor to the effect that the deceased was in a position to record her statement, raises suspicions about the truthfulness and trustworthy of the contents of the second dying of declaration. In these circumstances, according to us, it cannot be said that the prosecution has established its case against the accused persons beyond any reasonably doubt. Probability of the accused having rt instigated the alleged offence cannot be a substitute for certainty.
28. Further, a perusal of the judgment passed by the learned trial Court makes it clear that the learned trial Court has gone into all these aspects of the matter in detail. The conclusion arrived at by the learned trial Court according to us is correct. The learned Additional Advocate General has not been able to persuade us as to why we should differ from the judgment passed by the learned trial Court. The accused have had the advantage of having been acquitted by the Court below and according to us, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
(Sanjay Karol),
Judge
(Ajay Mohan Goel),
April 28, 2016 Judge
(BSS)
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