Kerala High Court
Sarojini Amma vs State Of Kerala on 26 May, 2003
Equivalent citations: 2003CRILJ3323
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. The appellant (hereinafter referred to as 'the accused) is the accused in S. C. No. 81/2001 on the file of the Second Additional Sessions Judge, Kozhikode. She was charge sheeted for offences punishable under Sections 302 and 498-A of the Indian Penal Code (for short 'the Code'). Learned Sessions Judge convicted the appellant for both the offences and sentenced her to life imprisonment and to pay a fine of Rs. 50,000/- under Section 302 alone. No separate sentence was awarded for the offence stated to be proved under Section 498A of the Code. Aggrieved by the conviction and sentence, the appellant has preferred this appeal.
2. The prosecution case is as follows : At about 7.45 P.M. on 6-2-1998, the accused, the mother-in-law of the deceased had thrown a lighted kerosene lamp against the deceased Gowri, her daughter-in-law. She sustained burn injuries. She was taken to the hospital. While under treatment, she died in the Medical College Hospital, Kozhikode on 17-2-1998. It was based on this incident, the accused mother-in-law was charge sheeted for the offences mentioned above.
3. The evidence in this case consists of the oral testimony of PWs. 1 to 20, Exts. P1 to P30 documents and M. Os. 1 to 7 on the side of the prosecution and the oral testimony of DW. 1 on the defence side.
4. There was no eye witness to the incident. At the relevant time, the deceased accused and PW.7 alone were in the house. Even PW7 had not seen the incident because, according to her, she was asleep at that time. The injured was hospitalised by the neighbours. PW. 1, the husband of the deceased, when the alleged incident said to have happened, had gone out for employment. PW. 10 is the person who had given the F. I. Statement. The police could not take first information statement from the deceased either from the house or from the, hospital as she was not in a fit condition to give a statement. It was in the above circumstances, the first information statement had been obtained from PW. 10.
5. PW.2 is a neighbour. She also had not seen the incident. She also did not stand to the prosecution case. She was declared hostile. PW.3 is the father of the deceased who came to the hospital directly after knowing about the incident. According to him, there was some ill-treatment from the hands of the accused towards his daughter, the deceased. PW.4 is the brother-in-law of the deceased (sister's husband). He also came to the hospital after the incident had happened. PW. 5 is the sister of the deceased (the wife of PW.4). She also came to the hospital along with PW.4. PWs. 4 and 5 have also spoken to the difficulties that the deceased had been facing in her matrimonial home from the hands of the accused. Apart from these, there is no evidence as to the cruelty or harassment that has been meted out towards the deceased by the accused.
6. PW. 19, the investigating officer, has stated before the Court below that none of the charge witnesses had spoken to the ill-treatment or demand for dowry by the husband of the deceased or any of his relatives.
7. Therefore, it is contended by the appellant that there was no reason to charge her under Section 498-A. The evidence given by PWs. 3, 4 and 5 would throw only some doubt about the character and conduct of the accused, A doubt cannot be stated to be proof of the allegation it is contended. Therefore, on the basis of the version given by PWs. 3, 4 and 5, the accused could not have been convicted under Section 498-A of the Code. It is further contended that the trial Court also did not specifically advert to any of the ingredients of that offence, in support thereof, for convicting the accused under Section 498-A.
8. It is further contended by the counsel for the appellant that the sole basis for conviction and consequent sentence is Ext. P20 dying declaration admissible under Section 32 of the Evidence Act. It is stated that, based on Ext. P19 case sheet, immediately prior to the recording of the said statement by PW.20, the magistrate, at 2.30 F. M., the deceased had been administered with sedatives like Morphine and Phenergan on more than two occasions at least. Both these medicines are sedatives and a person administered with sedatives will always be driven by the subconscious mind. A person subjected to sedation will be able to talk, but he/she may not be able to state consciously about what he/she speaks. Therefore, Ext. P20 dying declaration obtained at 2.30 P.M. immediately after the administration of sedatives cannot be taken as the sole basis for conviction.
9. Further, it is stated that Ext. P20 has not been got signed by the declarant, nor the thumb impression of the declarant was taken. True, such statements can be taken into account. But the reason for not obtaining the thumb impression or the signature must be properly explained by the person who had taken the dying declaration. The reason stated in Ext. P20 is that :
"no thumb impression was obtained as her body was full of burns".
There was a question and answer in Ext. P20 that she can hear and answer the questions.
10. PW. 11 is the doctor who conducted the post mortem. In his certificate, Ext. P17, no injury to the thumb or any finger has been noted. Moreover, the extent of burn injury, according to him, was only 35%. Therefore, the reason for not obtaining the signature or thumb impression as mentioned in Ext. P18, throws some doubt as to the acceptability of that dying declaration, it is contended.
11. It is further contended that the dying declaration does not disclose that it has been obtained after verifying whether the declarant was in a fit condition to give the declaration. In his deposition as PW.20 also, the magistrate has not stated that he had Verified by himself about the fitness of the declarant. Of course, according to him, PW. 12 the doctor who was treating the declarant had told him that she had been able to speak. But that is not sufficient, counsel contends. The magistrate ought to have", by himself, ascertained the condition of the patient, before Ext. P20 had been taken. This is also an infirmity so far as Ext. P20 is concerned. With that infirmity, conviction cannot be sustained, the counsel contends.
12. It is further contended that PW.12 doctor has deposed that he had given a certificate, just before PW.20 had taken the dying declaration, about the fitness of the patient. But the original of Ext. P20 indicates that the certificate was given after taking Ext. P20 and not before that. It cannot be taken that there was an examination of the patient before Ext. P20 had been taken, the counsel contends. It is also an infirmity as regards Ext. P20 and with that infirmity, Ext. P20 cannot be relied on without any corroboration for convicting the accused.
13. It is further contended that the Sub-Inspector of Police, PW. 16, had gone to the house where the incident had taken place on getting information. At that time, the injured was available in that house. But he could not take her statement as she was not able to give one and as she was suffering from severe pain. She had been taken to the hospital. Thereafter, the Sub-Inspector arrived at the hospital. But the Sub-Inspector has deposed before the Court below that he had waited upto 12 noon on that day watching whether a statement could be obtained from the injured/deceased. She was till that time unconscious obviously because as is evident from Ext. P17 case sheet that she had been administered with sedatives, Morphine and Phenergan to relieve her of the excruciating pain arising out of the burn injuries. Thus, it has been proved that the deceased was in an unconscious state at least upto noon on 6-2-1998. It was just two hours later that the magistrate, PW.20, had recorded Ext. P20 statement. In such circumstances, it was more the responsibility of the magistrate so far as a person who had been administered with sedatives on more than one occasion on that day itself, to ascertain whether the declarant was in a fit condition to give a statement. Absence of such ascertainment is also a gross infirmity of Ext. P20 to be relied on for convicting the accused under Section 302 I. P. C.
14. It is further contended, based on two text books, that the effect of sedatives administered may continue even upto 4 to 6 hours. Ext. P19 discloses that immediately on admission in the hospital, she has been administered with 5 Mg. of Morphine and 12.5 Mg. of Phenergan. It further discloses that the same medicines had been again administered on the same day prior to 11.10 A. M. No evidence has been brought in with regard to the health of the deceased. Admittedly, the deceased had suffered 35% burn injuries easily susceptible to septicemia. Therefore, it could not have been taken that, at that time, the deceased had been in sound and good health.
15. Morphine administered will have an effect for a duration of 6 to 24 hours. The patient was admitted to the hospital at about 8.45 A.M. The dying declaration was taken at 2.30 P.M. on the same day. In between there was administration of two dozes of Morphine. In such circumstances, the lingering effect of Morphine could have been there at the time of taking the dying declaration, it is contended. Equally so, it is contended is the administration of Phenergan, another sedative. Two dozes of this medicine had been administered between the time of admission in the hospital and the time of taking the dying declaration. One doze of 25 Mg. will have an effect of sedation for 4 to 6 hours. The patient had been administered with two dozes of 12.5 Mgs. In such circumstances, the effect of Phenergan will be there on the declarant even at the time when the declaration had been taken. Such a declaration cannot be stated to be one voluntarily made knowing the consequence by the declarant. Therefore, it cannot be stated that the declaration Ext. P20 had been made voluntarily and freely and with full consciousness as there was a chance of subconscious mind driving the opinion of the persons, it is contended.
16. It is also submitted, placing much reliance on the evidence of PW. 16 who recorded Ext. P15 first information statement, that the original first information statement' is not forthcoming. According to PW. 16, he had recorded the first information statement of PW. 10 while at the Medical college Hospital in a white paper. He could not take the printed format from the bound book kept in the police station. But the first information statement produced before the Court was in the printed format. Therefore, what was produced was not the original first information statement. It is more so when PW.10 did not fully approve and accept Ext. P15. Exts. P15 and P15 (a) FIR forms part of the documents. Therefore, there is much doubt with regard to the veracity of the first information statement even and consequent preparation of the F. I. R., the basis of the criminal case against the accused, the counsel contends. Placing reliance on Exts. P28 and 30, the documents relating to the forwarding of certain articles including the kerosene lamp and the wick and the analysis report, Ext. P13, it is submitted that out of the five articles sent for chemical examination, none except one did contain any traces of kerosene. That was the wick alone. The bottle part of the kerosene lamp did not contain any trace of kerosene. The dress of the deceased also did not contain any traces of kerosene. The burnt part of the body of the deceased also did not contain any trace of kerosene. Therefore, it cannot be taken that the incident itself had happened as stated by the prosecution in the light of Exts. P28 and 30.
17. It is further submitted, relying on Ext. P19 case sheet, that the original version given by the deceased at the time of hospitalisation was that:
(Vernacular omitted........ Ed.) This version shall indicate an accidental fall of the kerosene lamp. It does not indicate that the kerosene lamp had been purposefully and intentionally thrown by the accused against the deceased. It also throws some doubt on the prosecution case of throwing the lamp. All these circumstances put together is sufficient enough to give some doubt as to the occurrence of the incident alleged in the prosecution case and the benefit of that doubt shall always go in favour of the accused especially when the sole basis for conviction is Ext. P20, the dying declaration, which did have several infirmities as mentioned above.
18. Events recently held by the Supreme Court in the decision reported in Laxman v. State of Maharashtra, 2002 SCC (Crl) 1491, the dying declaration by itself can very effectively be relied on to invite a conviction because of the sanctity attached to such statements being made in the situation in which a man is on the death bed and as there is no, reason in law to discredit the veracity of such statement. But before relying solely on such dying declaration, the Court must decide that "the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion."
19. In this case, there is some doubt regarding the medical opinion at the time of taking the statement. PW. 12, the doctor, stated that he had given his certification about the fitness of the patient before Ext. P20 dying declaration had been taken. But Ext. P20 speaks by itself that the certification had been made after the declaration had been made. Therefore, it cannot be taken that there was medical opinion on due examination of the patient that the patient was fit to make a statement, before the statement was recorded.
20. On the other hand, PW.20 the magistrate had spoken that he had met the doctor at the ward when he came to take the declaration of the patient and the doctor had told that the patient can speak well. But that is not an examination sufficient to attach extreme reliability to Ext. P20, because in the case of a person who had been administered with sedation continuously at least for two occasions on the same day, the fitness ought to have been certified by a proper examination by the medical practitioner at the time when the declaration had been made. Ext. P20 shows that there was only an endorsement after the declaration had been taken that the patient was in a fit condition. The case sheet, Ext. P19, of the patient does not disclose such examination. Therefore such a dying declaration for which a certification has been obtained post factum cannot be stated to be one satisfying the medical opinion that the deceased was in a fit mental condition when the declaration had been made.
21. It was further held in that case by the Supreme Court that.
What is essentially required is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind."
The declaration has been taken by PW.20 the magistrate. He did not by himself ascertain the fitness of the state of mind of the deceased, as he could do though to a limited extent, when he had taken the declaration. In the case of a patient who had been administered with sedatives continuously, it was incumbent on him to ascertain whether the declarant has been in a fit state of mind to give the declaration, knowing fully the consequences thereof. That is why the Supreme Court has cautioned that "a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." Therefore, there is some legitimate doubt with respect to the acceptability of Ext. P20, to invite a conviction solely based on it.
22. Added to this, is the fact as disclosed by PW. 16, the Sub Inspector, that he had been waiting upto 12 O' clock in the noon to take the statement of the deceased and he could not do so, as she was unconscious; obviously due to the administration of sedatives as mentioned above and seen from Ext. P19 case sheet. The patient had not been unconscious when she had been brought to the hospital because she had told the doctor about the cause of her injury. Naturally, the unconscious state as noticed by PW. 16 was due to sedation on account of administration of Morphine and Phenergan. When the patient had been unconscious at least until 12 O' clock as mentioned by PW.16, necessarily it was more incumbent on the magistrate to ascertain the fitness before Ext. P20 had been taken.
23. As held by the Supreme Court in Chacko v. State of Kerala, 2003 Cri LJ 441 : (AIR 2003 SC 265), the patient's consciousness and simple talking capacity is not sufficient to indicate the real condition of the patient to make a dying declaration when one was under the influence of sedation. Further, as held by the Supreme Court in the decision reported in K.R. Reddy v. Public Prosecutor, AIR 1976 SC 1994 : (1976 Cri LJ 1548), the person who recorded the dying declaration whether be a police officer, doctor or a magistrate, shall satisfy that the deceased was in a fit state of mind to make the statement and that the deceased was making the statement consciously and voluntarily with full details. In the aforesaid circumstances, when it has been proved that the patient had been under the control of sedatives administered and was unconscious at least until 12 O' clock. Ext. P20 dying declaration taken at 2.30 P. M. without ascertaining such fitness and without medical opinion as to, the fitness of the patient before the said declaration had been recorded, cannot be relied on as the sole piece of evidence to convict the accused under Section 302 I.P.C.
24. Therefore, we are of the view that the learned Second Additional Sessions Judge fell in error basing solely on Ext. P20 dying declaration to convict, the appellant and to award the consequent sentence.
25. In order to sustain the conviction, learned Public Prosecutor has relied on the evidence of PWs. 3, 4 and 5. As already mentioned above., PW.3 is none other than the father-of-the deceased. PW.4 is the brother in law of the deceased and PW.5 is the sister of the deceased. They are not eye witnesses. They have come to the hospital after the incident had happened. They will have, when the deceased -- a close relative had suffered such injuries, a grudge against the members of the matrimonial house of the deceased. Therefore, their evidence cannot be taken without a pinch of salt, In such circumstances, solely because of such complaint the deceased had earlier made to them about the alleged ill-treatment by the deceased, it cannot be concluded that the accused had committed the offence. The evidence of PWs. 3, 4 and 5 cannot, therefore, be of any help to sustain the conviction and sentence passed against the accused.
26. In the result, we set aside the conviction and sentence passed on the appellant and she is found not guilty of the of fences under Sections 302 and 498-A I.P.C. She is acquitted of the charges. She shall be released forthwith, if she is not wanted in any other case.
Appeal is allowed as above.