Madhya Pradesh High Court
Shankar Ala vs The State Of Madhya Pradesh on 29 November, 2018
(1)
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. Cr. Appeal No.987/2009
Parties Name Shankar Lal.
vs.
State of Madhya Pradesh.
Date of Judgment 29/11/2018
Bench Constituted Justice Sujoy Paul &
Justice Nandita Dubey
Judgment delivered by Justice Sujoy Paul
Whether approved for No.
reporting
Name of counsels for parties Petitioner: Mr. Ayush Choubey, Amicus
Curiae.
Respondent: Mr. Mohit Nayak,
Government Advocate.
Law laid down -
Significant paragraph -
numbers
JUDGMENT
29/11/2018 This appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment of conviction for the offences under Section 498A IPC r/w 304B IPC and order of sentence for said offences for one year rigorous imprisonment and fine of Rs.1,000/- with default stipulation and imprisonment of life respectively.
Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (2)2. In short, prosecution case is that on 16.3.2008 wife of appellant was admitted in burnt condition in District Hospital, Mandla for treatment. Dr. Mahendra Teja (PW/9) examined her and provided her the treatment. Her dying declaration Exh. P/1 was recorded by Executive Magistrate Shri Abdul Haque (PW/12). After her death, Dr. Teja sent her report Exh. P/13 on 17.3.2008 to Police Station, Mandla. In turn, Marg Intimation Exh. P/24 under Section 174 Cr.P.C. was registered and 'panchnama' of the body (Exh. P/21) was prepared. The postmortem was conducted by Dr. A. Hussain (PW/14). The burnt clothes and other material were seized from the spot (Exh. P/16). A spot map was prepared by the Patwari. The seized material/clothes etc. were sent for chemical examination to FSL, Sagar and its report Exh. P/29 was produced before the court below. The challan was filed and accused was charged under Section 498A and 304B of IPC. Since accused pleaded innocence and urged that he was falsely implicated, he was put to trial.
3. The Court below framed five points for decision and came to hold that prosecution was successful in establishing beyond reasonable doubt that appellant is guilty of offences under Section 498A and 304B of IPC.
4. Shri Ayush Choubey, learned Amicus Curiae urged that the FIR was lodged after two days from the date of incident. Thus, in view of ILR 2009 MP 2671 (Mangal Singh and others vs. State of M.P.), the story of prosecution is unbelievable. Shri Choubey has taken pains to contend that in the peculiar facts and circumstances of this case, it is totally unsafe to rely on the dying declaration. He urged that admittedly there was no eye witness to the incident. The dying declaration cannot be relied upon because it was allegedly recorded when indisputably Seema had suffered 90% burn injuries. He relied on the statement of Tulsiram (PW/4) who deposed that Seema after the incident of burning became unconscious and remained unconscious till her death. He also relied the statement of Dr. A. Hussain PW/14 who, on a suggestion, opined that he cannot tell about the reason of death. Death may be for either reason namely suicidal or homicidal. Shri Choubey read out the dying declaration of Seema Bai reproduced in para 21 of impugned Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (3) judgment and urged that the answer to question No.2 and question No.3 shows that there exists a serious inconsistency which indicates that Seema was not in a fit state of mind. In this backdrop, her dying declaration cannot be relied upon.
5. Per conta, Shri Mohit Naik, learned Government Advocate supported the impugned judgment. He urged that the judgment of court below is based on the basis of cogent evidence led by the prosecution. The prosecution has successfully established its case. There is no procedural impropriety in the decision making process nor there exists any perversity in the findings given in the impugned judgment.
6. No other point is pressed by learned counsel for the parties.
7. We have bestowed out anxious consideration on the rival contentions and perused the record.
8. In view of conjoint reading of the evidence led by prosecution witnesses and statement of defence/appellant recorded under Section 313 Cr.P.C., it is not in dispute that Seema Bai died within seven years of her marriage with present appellant. Punnulal (PW/1) relative of Seema Bai deposed that there were consistent demand of dowry by the appellant. Appellant was in the habit of consuming liquor and used to beat Seema Bai. He further deposed that once the appellant assaulted Seema Bai even in his presence. The appellant used to misbehave with Seema Bai for the reason that adequate dowry has not been given by family members of Seema Bai. PW/2 Dhannilal almost narrated the same story about habit of consumption of liquor by appellant and misbehaviour with Seema Bai in relation to demand of dowry. PW/3 Bhaosingh, cousin of deceased reiterated the same story which were narrated by previous witnesses. PW/4 is relative of appellant and had turned hostile. PW/5 Meena Bai, an independent witness, deposed that after marriage Seema Bai used to visit her and call her as Bhabhi. She, on various occasions, told her that her husband consumes liquor and assaults her because of demand of dowry.
Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (4)9. PW/6 Gopal Soni, Executive Magistrate had recorded the dying declaration. He, in clear terms deposed that after obtaining certificate from Dr. Teja of District Hospital, Mandla that Seema Bai is in a fit state of mind, recorded her dying declaration. PW/9 Dr. Teja stated that during medical examination of Seema Bai, he found that she is in a fit state of mind and this fact was duly certified by him. After such certification, which was based on the physical and mental condition of Seema Bai, the Executive Magistrate recorded the dying declaration (Ex-P/1).
10. The incident of burning had taken place on the agriculture field of the appellant. As per relevant panchnama and statement of appellate recorded under Section 313 Cr.P.C., it is clear that on the date of incident itself the appellant was aware about the said incident. He did not inform the police and the family members of Seema Bai. In absence of immediate information of the incident to the family members, there was no occasion for lodging FIR by the family members. The FIR was lodged by Shri D.R. Sharma, Sub Divisional Officer(Police) on 22.3.2008. Thus, alleged delay in lodging FIR will not cause any dent on the story of prosecution. In the fact situation of this case, the judgments cited by Shri Choubey cannot be pressed into service.
11. The next point that dying declaration/statement of Seema Bai recorded in 90% burnt condition is not believable, is a ponderable point. At the outset, we deem it proper to deal with the point relating to alleged inconsistency in answer to question no.2 and 3 of the dying declaration which was raised by Shri Choubey during the course of his submissions. If the dying declaration reproduced in para 21 of the judgment is examined in juxtaposition to the actual dying declaration, it will be crystal clear that reproduction of declaration in the judgment is clearly incorrect and is pregnant with typographical mistakes. In answer to question no.2 in main dying declaration, Seema Bai stated that at the relevant time, in the house two brothers-in-law (Dever) were there whereas in reproduced/quoted portion (para 21), it is mentioned that in the house, at the relevant time, two Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (5) small children were there. Thus, infact, there exists no inconsistency in the dying declaration and this submission based on a clerical error deserves to be rejected.
12. The contention that Seema Bai's statement recorded in 90% burnt condition is unbelievable, on the first blush appears to be attractive but on a deeper scrutiny lost its complete shine. In 1991 (1) SCC 744 (Padma Ben Shamal Bhai Patel vs. State of Gujarat), the argument advanced was almost similar that victim had 90% burns and therefore it is hazardous to believe her statement coupled with the statement of medical men. Pertinently, in said case, the victim sustain burn injuries on her lips and even on her tongue which was swollen making it doubtful if she could talk. The Apex Court did not find any merit in the submission and relied on a previous judgment 1987 (2) SCC 32 (Suresh Vs. State of M.P.) wherein victim had sustained 100% burns of second degree. The Apex Court relied on the statement of the doctor who deposed that the victim was in a fit state of health. Despite the fact that victim in the said case during the recording of statement had started going into a coma, the statement of medical men was found to be trustworthy. In 1999 (7) SCC 695 (Paparambakar Rosamma Vs. State of M.P.), the Supreme Court opined that it is necessary for the prosecution to prove the dying declaration as genuine, true and free from all doubts. It must be established that it was recorded when victim was in a fit state of mind. The Apex Court distinguished between a declaration that "patient is conscious while recording statement" and "patient is in a fit state of mind to depose statement". In 1992 (2) SCC 474 (Paniben vs. State of Gujarat), the Apex Court summarized ten principles governing the dying declaration. It is profitable to reproduce them:
"18.(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (6)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally, the court in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."
The Apex Court in 2005 (10) SCC 737 (Sree Vijayakumar vs. State) opined as under:
"We cannot accept the contention of the learned counsel for the appellants that the deceased would not have been in a position to sustain his consciousness and give a statement narrating the details of the incident. The evidence of the Magistrate, PW 2 is unequivocal that the deceased was conscious and was able to answer the questions. The certificate of the doctor (Dr. Lalita Kumari) who was with him was also obtained on the dying declaration."
(Emphasis supplied) The Apex Court in 2009 (9) SCC 163 (Sukanti Moharana vs. State of Orissa) opined as under:
"The Court must decide that the declarant was in a fit state of mind to make the declaration, but where the eyewitnesses' evidence including the evidence of a Magistrate who had recorded the dying declaration to that effect was available, mere absence of doctor's certification as to the fitness of the Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (7) declarant's state of mind, held, would not ipso facto render the dying declaration unacceptable. It was also held that the evidentiary value of such a declaration would depend upon the facts and circumstances of the particular case. In para 3 of the said judgment, this Court discussed the juristic theory recording acceptability of a dying declaration in the following manner: (Laxman case [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491], SCC p. 713) (Emphasis supplied) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement."
13. If the present case is tested on the touchstone of principles laid down in the aforesaid cases, there will be no scintilla of doubt that the medical man and Executive Magistrate unequivocally deposed that deceased was conscious and was in a fit state of mind to answer the questions. The statements are supported by documentary evidence. Thus, we find no reason to hold that dying declaration was not trustworthy. In Sukanti Mohrana(Supra), it was poignantly held that dying declaration was recorded in the presence of doctor who was most disinterested witness. Thus, his statement cannot be brushed aside. The same view is taken in 2007 (15) SCC 465 (Nallapati Sivaih vs. SDO, Guntur, Andhra Pradesh). The aforesaid principle was reiterated in 2010 (6) SCC 533 (Govindappa and others vs. State of Karnataka). In this case, it was further held that though, it was argued that PW 12 Tahsildar had not obtained the certificate from the Medical Officer regarding the condition of the deceased, that itself is not sufficient to discard the dying declaration (Ext. P-9). What is essentially required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the Digitally signed by SAIFAN KHAN Date: 30/11/2018 11:12:20 (8) doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.
14. The ten principles/juristic theory aforesaid was further considered in 2012 (12) SCC 120 (Surinder Kumar Vs. State of Punjab) and after taking note of cases where victim had sustained 90% to 95% and even upto 100% burn injuries, statements were found to be trustworthy on the basis of deposition of doctor and Executive Magistrate. Thus, as a rule of thumb, it cannot be said that in a case where victim had sustained 90% burn injuries her dying declaration cannot be relied upon.
15. In view of aforesaid analysis and evidence on record, we find no infirmity, perversity or illegality in the impugned judgment. Since marriage had taken place within seven years from the date of incident, the Court below rightly relied on Section 113-B of Indian Evidence Act and drawn presumption against the appellant. The appellant has miserably failed to rebut the said presumption.
16. In view of foregoing analysis, we find no reason to interfere in the impugned judgment. However, we record our appreciation for the assistance given by learned Amicus Curiae. The appeal fails and is hereby dismissed.
(Sujoy Paul) (Smt. Nandita Dubey)
Judge Judge
YS/
Digitally signed by SAIFAN KHAN
Date: 30/11/2018 11:12:20