Himachal Pradesh High Court
Reserved On: 22.10.2024 vs State Of H.P on 4 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:10545 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 17 of 2021 Reserved on: 22.10.2024 Date of Decision: 04.11.2024 Devinder Kumar ...Appellant.
Versus
State of H.P. ...Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellant : Mr. Neeraj Gupta, Senior Advocate with M/s Ajeet Pal Singh Jaswal and Vedhant Ranta, Advocates.
For the Respondent/State: Mr. Pawan Nadda, Additional Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and order dated 6.11.2020, passed by learned Additional Sessions Judge-II, Una, H.P., vide which the appellant (accused before the learned Trial Court) was convicted and sentenced as under: -
Under Section 302 of IPC To suffer rigorous imprisonment for life, pay a fine of ₹10,000/- and in default of payment of fine, to undergo further imprisonment for 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.2
2024:HHC:10545 six months.
Under Section 201 of IPC To suffer simple imprisonment for three years, pay a fine of ₹5,000/-
and in default of payment of fine, to undergo further imprisonment for three months.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 302 and 201 of the Indian Penal Code (IPC). It was asserted that Krishna Devi (since deceased) was brought to the Regional Hospital, Una, with the alleged history of poisoning. Dr. Raman Kumari (PW12) intimated the Police Assistance Room, Regional Hospital, Una, about this fact. HC Jitender Kumar (PW13) went to the hospital and filed an application (Ex.PW12/A) for conducting medical examination of Krishna Devi and certifying whether she was fit to make the statement. Krishna Devi made a statement (Ex.PW1/A) before HC Jitender Kumar (PW13) in the 3 2024:HHC:10545 presence of Sharwan Singh (PW1) and Dr Raman Kumari (PW12), stating that she had one son and one daughter. Her husband (the present accused) had forcibly administered the insecticide to her on 5.7.2018, due to which her condition deteriorated and she became ill. The accused was responsible for her condition. She had gone to Pradhan of the village during the night. She told him about the beatings given to her and the quarrels between her and the accused. The accused used to beat her earlier in a state of intoxication. He also used to harass her children. The accused had administered the insecticide forcibly to kill her. She narrated the incident to her brother-in-law, Sharwan (PW1), who visited her home and took her to the hospital. The statement was sent to the Police Station. Dr Raman Kumari (PW12) conducted the medical examination of Krishna Devi and found that she had not sustained any injury. She also issued the MLC (Ex.PW12/B). She preserved the gastric lavage and blood samples, which were separately sealed with seal impressions of Regional Hospital, Una and handed over to the Police official. She referred Krishna Devi to PGI, Chandigarh, when her condition deteriorated. HC Jitender Kumar intimated the Police Post, Pandoga, about the incident. An entry (Ex.PW10/A) was recorded in the Police 4 2024:HHC:10545 Station. ASI Rashpal Singh (PW22) went to the hospital with HC Sushil Kumar. An entry (Ex.PW13/A) about his departure was recorded. HC Jitender Kumar (PW13) handed over the statement of Krishna Devi (Ex.PW12/A), MLC (Ex.PW12/B), blood sample, and gastric lavage to ASI Rashpal. ASI Rashpal (PW22) sent the statement (Ex.PW1/A) to the police station where FIR (Ex.PW22/H) was registered. ASI Rashpal recorded the statements of Dr Raman Kumari, HC Jitender Kumar, and HC Sushil Kumar as per their versions. He interrogated and arrested the accused. He went to the spot and prepared the site plan (Ex.PW22/A). He took photographs (Ex.PW11/A1 to Ex.PW11/A4). He searched the house but could not find any wrapper of poison or vomiting. He prepared a memo (Ex.PW3/A). An intimation regarding the death of Krishna Devi was received on 8.7.2018. An entry (Ex.PW10/B) was recorded. ASI Rashpal went to PGI and prepared the inquest report (Ex. PW22/G). He filed an application (Ex.PW14/A) before the Head of Department, Forensic Science, PGI, Chandigarh, for conducting the postmortem examination of Krishna Devi. The postmortem examination of Krishna Devi was conducted by Dr Senthal Kumar and Dr Nikhil Mehta (PW14), who preserved the viscera and handed them over to the Police for 5 2024:HHC:10545 chemical analysis. They issued the postmortem report (Ex.PW14/C). The case property was deposited with MHC. ASI Rashpal filed an application (Ex.PW7/C) before Naib Tehsildar, Up-Tehsil, Ispur. Naib Tehsildar directed Pushpinder Kumar (PW7) to visit the spot. Pushpinder Kumar visited the spot and prepared tatima (Ex.PW7/A). He issued the copy of Jamabandi (Ex.PW7/B). Krishna Devi had filed an application (Ex.PW19/B) regarding her beating. The application and compromise (Ex.PW19/C) were seized by the police. Krishna Devi had filed an application (Ex.PW19/A) on 25.5.2018 regarding her beating in the police post where entry No.10 was recorded. The application and compromise were forwarded to the Child Project Development Project Officer, Haroli, for necessary action vide letter (Ex.PW20/G). The case property was sent to RFSL, Dharamshala, by MHC Subhash Chand through HHC Sher Singh vide RC No. 199/18 (Ex.PW20/C) on 6.7.2018 and HHC Sukhvinder Singh vide RC No. 203/18 (Ex.PW20/D) on 12.7.2018. They deposited the case property at RFSL and handed over the receipt to MHC on their return. The results of the analysis (Ex. PX and Ex.PY) were issued, in which it was mentioned that phosphine gas was detected in the gastric lavage, blood sample and viscera 6 2024:HHC:10545 of Krishna. An application (Ex.PW14/E) for obtaining a final opinion was filed before the medical officer. A final opinion (Ex.PW14/F) was issued by Dr. Nikhil, stating that the cause of death was phosphine poisoning in this case. The statements of witnesses were recorded as per their versions. The admitted handwriting of Krishna Devi was taken into possession. Statement of the deceased Krishna, MLC, admitted handwriting and the complaints made by her were sent to RFSL, Dharamshala, for comparison. Dr. Meenakshi Mahajan (PW16) examined these documents and found that disputed and admitted documents were written by the same person. She issued the report (Ex.PW16/D). After the completion of the investigation, the challan was prepared and presented in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Una, H.P., who committed it for trial to the learned Sessions Judge, who assigned it to learned Additional Sessions Judge, Una-II, H.P. (learned Trial Court) for trial.
3. Learned Trial Court charged the accused for the commission of offences punishable under Sections 302 and 201 of IPC to which he pleaded not guilty and claimed to be tried. 7
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4. The prosecution examined 22 witnesses to prove its case. Sharwan Singh (PW1) is the brother-in-law of the deceased who brought her to the hospital and to whom a complaint of harassment was made by the deceased during the previous night. Simranjeet Singh (PW2) is the daughter of the deceased. Ramesh Chand, Ward Panch (PW3) and Major Singh (PW4) did not support the prosecution case. Constable Tilak Raj (PW5) proved that HC Jitender Kumar was posted in Regional Hospital, Una. Upnish Jaswal (PW6), the seller of the pesticide, did not support the prosecution case. Pushpinder Kumar (PW7), Patwari prepared the Aks Tatima and Jamabandi. HHC Sher Singh (PW8) carried the blood sample and gastric lavage to RFSL. HHC Sukhvinder Singh (PW9) carried the viscera of the deceased to RFSL. HHC Rajesh Kumar (PW10) proved the entries in the daily diary. Charan Singh (PW11) developed the photographs. Dr. Raman Kumari (PW12) conducted the initial examination of the deceased. HC Jitender (PW13) was informed about the arrival of Krishna at the hospital with the alleged history of poisoning. Dr. Nikhil Mehta (PW14) conducted the postmortem examination of the deceased. ASI Sushil Kumar (PW15) carried the statement of the deceased to Police Station, Haroli. Dr. Meenakshi Mahajan 8 2024:HHC:10545 (PW16) conducted the handwriting analysis. Narinder Saini (PW17) and Ritu Rani (PW18) handed over the documents written by the deceased. Inspector Raman Chaudhary (PW19) partly investigated the case. MHC Subhash Chand (PW20) was posted as MHC, with whom the case property was deposited. Shashi Kant Verma (PW21) proved the call details record. ASI Rashpal (PW22) conducted the initial investigation.
5. The accused, in his statement recorded under Section 313 Cr.P.C., denied the prosecution case in its entirety. He stated that a false case was made against him. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the conviction can be based on the dying declaration if it is found to be coherent, consistent and satisfactory. Statements of Sharwan Singh, Dr. Raman Kumari and Jitender Kumar were duly corroborated by the statement of Dr. Nikhil Mehta. Multiple small reddish-blue fresh abrasions were found on the inner aspect of the lower lip during the postmortem examination, which supports the prosecution's case regarding the forcible administration of poison. The fact that Simranjeet, the daughter of the deceased, did not support the prosecution case is not sufficient to discard 9 2024:HHC:10545 it. The conduct of the accused was not natural. He did not accompany the deceased to the hospital. The deceased had made the complaints during her lifetime against the accused. These circumstances show the authenticity of the dying declaration. Hence, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. There is an error in the date mentioned in the judgment, which shows that the learned Trial Court did not have a complete grip on the facts. It was wrongly held that the dying declaration was satisfactory. There was insufficient evidence to show that the deceased was in a fit state of mind to make the statement. The prosecution case was inherently improbable. The deceased was stated to be fit till the making of the statement, and her condition deteriorated immediately thereafter. This casts doubt on the dying declaration and the learned Trial Court erred in relying upon it. The prosecution had also not associated any Magistrate while recording the dying declaration. The prosecution evidence established that there were 8 to 10 houses in the vicinity; 10
2024:HHC:10545 however, no person was examined from those houses. No findings were recorded regarding the commission of an offence punishable under Section 201 of IPC; therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
8. We have heard Mr Neeraj Gupta, learned Senior Counsel assisted by M/s Ajeet Pal Singh Jaswal and Vedhant Ranta, learned counsel for the appellant and Mr Pawan Nadda, learned Additional Advocate General for the respondent/State.
9. Mr. Neeraj Gupta, learned Senior Counsel for the appellant/accused, submitted that there is no satisfactory evidence regarding the mental state of the deceased. The dying declaration is shrouded in suspicion. The statement of Sharwan Singh (PW1) is not satisfactory. Learned Trial Court held him to be an interested witness and relied upon his testimony without any corroboration. Simranjeet Singh, daughter of the deceased, did not support the prosecution case and learned Trial Court wrongly discarded her testimony. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He relied upon the judgment 11 2024:HHC:10545 of the Hon'ble Supreme Court in Irfan Vs. State of U.P. (2023) SCC Online SC 1060 in support of his submission.
10. Mr. Pawan Nadda, learned Additional Advocate General for the respondent/State, supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with it.
11. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. It is an admitted case that the deceased had died due to Celphos poisoning. This fact was specifically mentioned in the statement (Ex.PW1/A). The effects of Celphos poisoning were explained by the Hon'ble Supreme Court in Jaipal v. State of Haryana, (2003) 1 SCC 169: 2003 SCC (Cri) 250: 2002 SCC OnLine SC 932 as under:
"14. Dr Sharma admitted during his cross-examination that aluminium phosphide has a smell. If a celphos tablet is kept open in a room, it will fill the room with smell. It is this characteristic of celphos poison emitting a pungent smell which renders it improbable to be administered deceitfully and that is why this poison is not generally used in cases of homicidal death. Celphos, once administered or consumed, spreads rapidly in the body and kidneys, liver, spleen, heart and lungs are affected by 12 2024:HHC:10545 the poison. The presence of such poison having been consumed would be revealed by pathological findings.
15. Dr Sharma's opinion, as expressed during his deposition, has authoritative support. Modi on Medical Jurisprudence and Toxicology (22nd Edn.) states (at pp. 197-
98) that aluminium phosphide (celphos) is used as a fumigant to control insects and rodents in foodgrains and fields. In reported cases of poisoning, symptoms that have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dysphonia, rapid pulse, subnormal temperature, loss of coordination, convulsions of a clonic nature and death. In the solid form, it acts as a corrosive in the mouth and throat as it precipitates proteins. In post-mortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed.
16. According to Modi, symptoms and signs of poisoning by aluminium phosphide are similar to poisoning by zinc phosphide (p. 197, ibid.). The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, tremors and drowsiness, followed by respiratory distress at death. Zinc phosphide acts as a slow poison and is decomposed by hydrochloric acid in the stomach with the liberation of phosphine, which acts as a respiratory poison. Being a very fine powder, zinc phosphide adheres firmly to the crypts in the mucous membrane of the stomach, and a very small quantity only in the stomach, even after vomiting, is sufficient to cause death by slow absorption.
17. Phosphine released from zinc phosphide (rat poison) and from aluminium phosphide is mainly used as a fumigant to control insects and rodents in foodgrains and fields. Liberated from the metal phosphides by the action of water or acids, gaseous phosphine exerts a more potent pesticidal action, for it penetrates all areas otherwise inaccessible for pesticide application. Pathological findings from phosphine inhalation are pulmonary 13 2024:HHC:10545 hyperaemia and oedema. It causes both fatty degeneration and necrosis of the liver (p. 174, ibid.).
18. Our attention was invited, as was done in the High Court and the trial court, to a paper entitled "Toxicology -- Acute Aluminium Phosphide Poisoning in Northern India" written by Dr Mitra Basu and Prof. S.B. Siwach, Head, Department of Medicine, Postgraduate Institute of Medical Sciences, Rohtak and published in Current Medical Journal, Vol. I, No. 5, July 1995. The authenticity of this article has not been doubted by the High Court nor questioned either in the High Court or in this Court. The learned authors noticed that aluminium phosphide having emerged as a major health problem in northern India when these cases first started coming in 1984, and hardly any literature being available earlier on this malady. In the Postgraduate Institute of Medical Sciences, Rohtak, about 2000 cases were reported, which were all suicidal.
19. We may briefly sum up the opinion of the learned authors from their published papers. Phosphine gas (an active ingredient of ALP) causes sudden cardiovascular collapse; most patients die of shock, cardiac arrhythmia, acidosis and adult respiratory distress syndrome (ARDS).
Aluminium phosphide is available in the form of chalky- white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture, and the chemical reaction takes place, liberating Phosphine gas (PH3), which is the active ingredient of ALP. This gas is highly toxic and effectively kills all insects and thus preserves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes, phosphine gas dissipates and spreads into the whole body. The gas is highly toxic, and damages almost every organ, but maximal damage is caused to the heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients come with fast, thready or impalpable arterial pulses, unrecordable or low blood pressure and icy-cold skin. Somehow, these patients 14 2024:HHC:10545 remain conscious till the end and continue to pass urine despite unrecordable blood pressure. Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul (garlic-like) from their breath and vomitus. Many of them will die within a few hours. Those who survive for some time will show elevated jugular venous pressure and may develop tender hepatomegaly and, still later, adult respiratory distress syndrome (ARDS), renal shutdown and, in very few cases, toxic hepatic jaundice. The active ingredient of ALP is phosphine gas, which causes extensive tissue damage. A spot clinical diagnosis is possible in a majority of cases of ALP poisoning. However, ALP, on account of its very pungent smell (which can drive out all inmates from the house if left open), cannot be taken accidentally."
13. This position was reiterated in Darshan Singh v. State of Punjab, (2024) 3 SCC 164: 2024 SCC OnLine SC 17 wherein it was observed:
"35. The appellant had set up a defence that the deceased had committed suicide. The trial court disbelieved it on the premise that the appellant and Rani Kaur were present in the house, and if the deceased were to have committed suicide, it was but natural for the appellant to take her to the hospital and inform persons/authorities concerned. However, we have come to the finding above that the circumstance of the appellant and Rani Kaur being present in the house has not been convincingly proved beyond doubt. Therefore, the reasoning given by the trial court loses its legs to stand on. In any case, we believe that the appellant has raised a doubt in our minds as regards his defence that the deceased had committed suicide. There appears to be no dispute as to the fact that the death was caused by poisoning. The doctor's testimony on the basis of the chemical examiner's report that the cause of death was linked to aluminium phosphide poisoning remains unchallenged. In fact, in his Section 313CrPC statement, even the appellant states that the deceased consumed 15 2024:HHC:10545 poison (aluminium phosphide) and committed suicide. In Jaipal case [Jaipal v. State of Haryana, (2003) 1 SCC 169:
2003 SCC (Cri) 250], this Court has considered the characteristic features of death caused by poisoning through aluminium phosphide. A review of scholarly literature and research papers suggests that the nature of this substance (aluminium phosphide) is such that it is not conducive for deceitful administration since it carries a pungent garlic-like odour, which cannot go unmissed. It was suspected that the substance was mixed in tea and served to the deceased since 200 ml of brownish liquid was found in her stomach as per the PMR. We find it doubtful that the deceased would have been made to consume tea deceitfully, given the nature of the substance. Forceful administration of this substance also seems doubtful since there are no injury marks suggestive of a scuffle. In light of the evidence on record, even assuming for a moment that the appellant and Rani Kaur were present, it still cannot be said with certainty that it was a case of homicide and not suicide..."
14. Thus, as per the judgment of the Hon'ble Supreme Court, a person who has consumed Celphos (aluminium phosphide) suffers from its effects immediately after the consumption of the poison. Such persons have elevated juggler vein pressure and will develop various symptoms. This poison cannot be taken accidentally and in case of forcible administration signs of a scuffle are generally visible.
15. Dr. Raman Kumari (PW12) conducted the initial examination of Krishna. She found that the patient was conscious, cooperative, and well-oriented. Her pulse rate was 92 16 2024:HHC:10545 per minute; her blood pressure was 110/80 mm of mercury. She categorically stated in her cross-examination that she had not noticed any injury on the body of Krishna. Thus, her statement makes the prosecution case doubtful regarding the forcible administration of Celphos tablets to the deceased.
16. Learned Trial Court heavily relied upon the report of postmortem examination in which multiple small reddish blue pressure abrasions and contusions with superficial lacerations were found on the inner aspect of the whole of the left side lower lip. The postmortem examination was conducted on 9.7.2018, whereas the initial examination was conducted on 5.7.2018. Thus, there was a gap of four days between the initial examination and the postmortem examination. In the absence of any evidence that the injuries were caused beyond four days of the examination, the injury noticed by Dr. Nikhil Mehta could not have been used for corroborating the prosecution case.
17. The learned Trial Court heavily relied upon the statement (Ex.PW1/A), stated to be the dying declaration of the deceased. The law relating to dying declaration was considered by the Hon'ble Supreme Court in Ifran vs State of UP 2023 SCC OnLine SC1016, and it was observed:
17
2024:HHC:10545 "48. The justification for the sanctity/presumption attached to a dying declaration is two-fold: (i) ethically and religiously, it is presumed that a person while at the brink of death will not lie, whereas (ii) from a public policy perspective, it is to tackle a situation where the only witness to the crime is not available.
49. One of the earliest judicial pronouncements where the rule as above can be traced is the King's Bench decision of the King v. William Woodcock, (1789) 1 Leach 500: 168 ER 352, where a dying woman blamed her husband for her mortal injuries, wherein Judge Eyre held this declaration to be admissible by observing:--
"...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 silent, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn, and so awful, is considered by the law as creating obligation equal to that which is imposed by a positive oath administered in a Court of Justice. (b) But a difficulty also arises with respect to these declarations, for it has not appeared, and it seems impossible to find out whether the deceased herself apprehended that she was in such a state of morality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions. .... Declarations so made are certainly entitled to credit; they ought, therefore, to be received in evidence, but the degree of credit to which they are entitled must always be a matter for the sober consideration of the Jury, under all the circumstances of the case." (Emphasis supplied)
50. Interestingly, the last observation of Judge Eyre showcases, even at the inception of this principle, that the Courts were wary of the inherent weakness of dying declarations and cautioned for great care to be adopted.18
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51. It is significant to note the observations made by Taylor that "Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross- examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements and give a false colouring to the whole transaction. ...". [See: Taylor on "Treatise on the Law of Evidence", 1931, 12th Edition Pg. 462]
52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that:
"In weighing dying declarations, the jury may consider the circumstances under which they were made, as whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross-examine him and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled."
53. In India, in the relevant provision of Section 32 of the Act, 1872, the first exception to the rule against admissibility of hearsay evidence is as under:
"32(1). When it relates to the cause of death.
-- 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 19 2024:HHC:10545 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 the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
54. Jon R. Waltz, American Jurist, observed that "It has been thought, rightly or wrongly, that Dying Declarations have intrinsic assurances of trustworthiness, making cross-examination unnecessary. The notion is that a person who is in the process of dying and knows it will be truthful immediately before departing to meet his Maker. (Of course, the validity of these hearsay exceptions is open to some debate. What about the person who is not deeply religious? What of the person who, as his last act, seeks revenge by falsely naming a life-long enemy as his killer? How reliable is the perception and memory of a person who is dying?)" [See Waltz, J.R. (1975) Criminal Evidence, Chicago: Nelson-Hall. pp.75-76]
55. The Privy Council in Neville Nembhard v. The Queen, [1982] 1 All ER 183, on Section 32(1) of the Act, 1872, opined that the evidence of dying declaration under the Indian law lacks the special quality as in Common Law and hence, the weight to be attached to a dying declaration admitted under Section 32 of the Act, 1872 would necessarily be less than that attached to a dying declaration admitted under the common law rules.
56. The below-cited observations from the decision of Nembhard (supra) are of significant importance:
"final observation should be made concerning the cases already mentioned that have been decided in the Court of Appeal for Eastern Africa. It appears that a rule of practice has been developed that when a dying declaration has been the only evidence implicating an accused person a conviction usually cannot be allowed to stand where there had been a 20 2024:HHC:10545 failure to give a warning on the necessity for corroboration: see for example Pius Jasunga s/o Akumu v. The Queen (1954) 21 E.A.C.A. 331 and Terikabi v. Uganda [1975] E.A. 60. But it is important to notice that in the countries concerned, the admissibility of a dying declaration does not depend upon the common law test: upon the deceased having at the time a settled hopeless expectation of impending death. Instead, there is a very different statutory provision contained in section 32 (1) of the Indian Evidence Act 1872. That section provides that statements of relevant facts made by a person who is dead are themselves relevant facts:
"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 the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." (emphasis added).
In Pius Jasunga s/o Akumu v. The Queen, it was pointed out (for the reason associated with the italicised words in the subsection) that the weight to be attached to a dying declaration admitted by reference to section 32 of the Indian Evidence Act, 1872 would necessarily be less than that attached to a dying declaration admitted under the common law rules. The first kind of statement would lack that special quality that is thought to surround a declaration made by a dying man who was conscious of his condition and who had given up all hope of survival. Accordingly, it may not seem surprising that the courts dealing with such statements have felt the need to exercise even more caution in the 21 2024:HHC:10545 use to be made of them than is the case where the common law test is applied."
57. This Court in Muthu Kutty v. State by Inspector of Police, T.N., (2005) 9 SCC 113, while discussing the decision in Woodcock (supra) referred to above, had cautioned the courts to ensure that a dying declaration is reliable before relying on it, with the following observations: -
"13. ... 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. These aspects have been eloquently stated by Eyre, L.C.B. in R. v. Woodcock ((1789) 1 Leah 500:
168 ER 352). Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain:
"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 is 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) The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo 22 2024:HHC:10545 morituruspraesumiturmentire -- a man will not meet his Maker with a lie in his mouth".
14. ... The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded, it will result in a miscarriage of justice because the victim is generally the only eyewitness in a serious crime, and the exclusion of the statement would leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire the full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. ..." (Emphasis supplied)
58. This Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC 465 and Bhajju alias Karan Singh v. State of Madhya Pradesh, (2012) 4 SCC 327 had explained the meaning and principles of dying declarations upon which its 23 2024:HHC:10545 admissibility is founded, with the following observations:--
"20. There is a historical and literary basis for the recognition of the dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearian origin. In The Life and Death of King John, Shakespeare had made Lord Melun utter, "Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, ... lose the use of all deceit" and asked, "Why should I then be false, since it is true that I must die here and live hence by truth?" William Shakespeare, The Life and Death of King John, Act 5, Scene 4, lines 22-29.
Xxx xxx xxx
22. It is equally well settled and needs no restatement at our hands that a dying declaration can form the sole basis for conviction. But at the same time, due care and caution must be exercised in considering the weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court, in more than one decision, has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying 24 2024:HHC:10545 man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity, and a person giving the dying declaration will be the last to give untruth as he stands before his creator.
24. There is a legal maxim "nemo morituruspraesumiturmentire", meaning that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act, state:
"When a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity, and therefore the tests of oath and cross-
examination are dispensed with".
25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to the court, which, on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures." (Emphasis supplied)
59. This Court in Bhajju (supra) has observed as under:
"23. The "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth.25
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26. The law is well settled that a dying declaration is admissible in evidence, and the admissibility is founded on the principle of necessity. ..."
60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted rather, the general course of action has been that the judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit.
61. In India, too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, a dying declaration, while carrying a presumption of being true, must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true, it will only be considered as a piece of evidence but cannot be the basis for conviction alone.
62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same. However, they will only affect the weight of the dying declaration and not its admissibility:
--
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"26
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(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether the dying declarant had an opportunity to clearly observe the incident?
(vii) Whether the dying declaration has been consistent throughout?
(viii) Whether the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether the dying declaration was itself voluntary?
(x) In the case of multiple dying declarations, whether the first one inspire truth and is consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration.
63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of the doubt must always go in favour of the accused. It is true that a dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.
64. It is unsafe to record the conviction on the basis of a dying declaration alone in cases where suspicion, like the case on hand, is raised as regards the correctness of 27 2024:HHC:10545 the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet, the surrounding circumstances render such a statement of the declarants very doubtful.
65. In Sujit Biswas v. State of Assam (2013) 12 SCC 406, this Court, while examining the distinction between "proof beyond reasonable doubt" and "suspicion" in para 13, has held as under:
"13. Suspicion, however, grave it may be, cannot take the place of proof, and there is a large difference between something that "maybe" proved and something that "will be proved". In a criminal trial, suspicion, no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "maybe" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicions do not take the place of legal proof. The large distance between "maybe" true and "must be" true must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "maybe" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided, and 28 2024:HHC:10545 if the facts and circumstances of a case so demand, then the benefit of the doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
66. It may be true, as said by this Court, speaking through Justice Krishna Iyer in Dharm Das Wadhwani v. State of Uttar Pradesh (1974) 4 SCC 267, that the rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of the legitimate inferences flowing from the evidence, circumstantial or direct. Even applying this principle, we have a doubt as regards the complicity of the appellant-convict in the crime."
18. Therefore, there must be satisfactory evidence that the statement was made by the deceased voluntarily, without any influence and in a fit state of mind.
19. HC Jitender Kumar (PW13) filed an application (Ex.PW12/A) for certifying whether the deceased was fit to make a statement or not. Dr Raman Kumari (PW12) made the endorsement regarding the receipt of the MLC, along with sealed samples by the police. She did not certify that the deceased was fit to make the statement.
20. A bare perusal of the statement (Ex.PW1/A) makes it suspicious. It is apparent from its perusal that it has different spacing. The lines are unevenly spaced. These have been crowded towards the bottom, and there is sufficient space between the 29 2024:HHC:10545 signatures of Krishna Devi and the statement; however, no explanation has been provided by the prosecution for the same.
21. Dr. Raman Kumari (PW12) stated in her cross- examination that the deceased was speaking in the local language of the area and not in Hindi. She volunteered to say that she was local and she could understand her language. HC Jitender (PW13), on the other hand, stated that Krishna made the statement in Hindi. This is a major discrepancy in the statements of the two witnesses, which, coupled with the uneven spacing and the space between the end of the statement and the signatures, will make it difficult to rely upon the same.
22. Sharwan Singh (PW1) stated that on 4.7.2018, at 12.00 AM (at night), he received a call from Ward Panch, Badsali and Krishna Devi told him that the accused had beaten her at night. She handed over the mobile phone to Ward Panch, Badsali. He (Sharwan Singh) told the Ward Panch that he would come at 8.30/9.00 AM and asked the Ward Panch to keep Krishna Devi in his house. Ward Panch assured that he would keep Krishna Devi in his house. He, Balbir Kaur and her son Harshpreet Singh went to Badsali at 9.00 AM. He called Ward Panch, Badsali and the latter told him that he would visit the house of Devender within 30 2024:HHC:10545 15-20 minutes. When he reached the house of the accused and parked his motorcycle in the courtyard, accused Devender came out of the house and absconded. Krishna Devi came out of the house. She was weeping. She disclosed that the accused had forcibly sat on her chest and made her consume Celphos tablets. He and Balbir Kaur took Krishna Devi to the hospital. He called Jitender Kumar who recorded the statement of Krishna. Medical treatment was given to Krishna and she was referred to PGI, Chandigarh, for further treatment.
23. His testimony is not corroborated by Simranjeet (PW2), the daughter of the deceased. She stated that she and her parents were present in the house. They got up at 6.00 AM. The deceased prepared the meal for the accused as he was going to the field. The accused went to the field at 7.00 AM. Her mother (the deceased) went to take a bath at about 9.30 AM. The deceased said that she had swallowed the medicine. In the meanwhile, Balbir Kaur came. Krishna Devi told her that she was late. She became unconscious and fell to the ground. She raised a hue and cry, and Sharwan Singh came. 10-15 persons gathered in the house and the deceased was taken to the hospital. 31
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24. It is true that she was declared hostile and contradicted her previous statement. Even if her testimony is discarded, there is no corroboration to the testimony of Sharwan Singh (PW1) that the accused had forcibly administered Celphos to the deceased inside her house.
25. Ramesh Chand (PW3), Ward Panch, also did not support the prosecution case. He was permitted to be cross- examined and he denied the prosecution case. He only stated that he made a call to Sharwan Kumar through his mobile number on 4.7.2018 at 9.00 PM. He denied the rest of the prosecution case. Thus, he has also not corroborated the statement of Sharwan regarding the making of a call at 12.00 PM and the complaint of beating made by the accused.
26. The statement of Sharwan Kumar is inherently improbable. If his testimony is taken to be true, the prosecution case will become highly doubtful because, as per Sharwan, he had asked Ramesh Chand, Ward Panch, to keep the deceased in his house, and Ward Panch had also assured to do so. Thus, as per the testimony of Sharwan, the deceased should have been present in the house of Ramesh Chand and not in her matrimonial home. He claimed that he went to the house of the 32 2024:HHC:10545 accused and asked Ramesh Chand to visit the house, but when he had asked Ramesh Chand to keep the deceased in his house, there was no justification to go to the matrimonial home of the deceased.
27. As per the prosecution case, Balbir Kaur and Harshpreet Singh accompanied Sharwan. Both of them were not examined by the prosecution. Keeping in view the infirmities in the statement of Sharwan, their examination was essential.
28. The statement of Sharwan also does not explain why the deceased had not suffered the effect of Celphos poison immediately after the poison was administered to her. He claimed that he went to the house of the deceased at 9.00 AM. Dr Raman Kumari (PW12) examined her at 9.40 AM after 40 minutes and found the vitals to be stable, which is not as per the judgment of the Hon'ble Supreme Court.
29. Major Singh (PW4) is the Up-Pradhan of Gram Panchayat, Badsali. He did not support the prosecution case. He denied the prosecution version that the accused used to beat the deceased and complaints were made to him regarding the beatings. Thus, his testimony does not corroborate the prosecution's version.
33
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30. Upnish Jaswal (PW6) was running a Seeds and Pesticide Shop. He denied that the accused had purchased the celphos tablets from him. Thus, his testimony also does not corroborate the prosecution case.
31. A heavy reliance was placed upon the complaints made by the deceased. These complaints show that the accused and the deceased used to quarrel. The complaint (Ex.PW19/A) shows that the accused was threatening to consume something and falsely implicate the deceased. Similarly, she stated in the complaint (Ex.PW19/B) that the accused threatened to put the house on fire. She had not expressed any apprehension regarding any threat to her life. Compromise (Ex.PW19/C) shows that both the parties had settled the matter and they had agreed to reside separately. This shows that, as per the compromise also, the accused and the deceased were supposed to reside separately and not together. These documents merely show that the relationship between the parties was strained, but these are insufficient to show that the accused intended to kill the deceased.
32. There is no other evidence on record to show that the accused had administered the poison to the deceased. In view of 34 2024:HHC:10545 the fact that Simranjeet Singh, daughter of the deceased, who was the best person to depose, had not supported the prosecution case and the deceased had not suffered any injury, it is highly doubtful that the accused had forcibly administered poison to her. A reasonable doubt remains that she could have consumed the poison herself, the benefit of which has to be extended to the accused.
33. In view of the above, the learned Trial Court erred in convicting and sentencing the accused and the judgment and order passed by the learned Trial Court cannot be sustained. Hence, the present appeal is allowed, the judgment and order passed by the learned Trial Court are set aside and the accused is acquitted of the commission of offences punishable under Sections 302 and 201 of IPC.
34. The fine amount, if deposited, be refunded after the expiry of the period of limitation for filing the appeal in case no appeal is preferred.
35. The accused is ordered to be released immediately if not required in any other case.
36. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik 35 2024:HHC:10545 Suraksha Sanhita, 2023 (BNSS)], the appellant/accused is directed to furnish his personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant/accused, on receipt of notice(s) thereof, shall appear before the Hon'ble Supreme Court.
37. Records be sent back forthwith. Pending applications, if any, also stand disposed of.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 4th November, 2024 (Chander)