Himachal Pradesh High Court
________________________________________________________________ vs Ajay Kumar on 5 May, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 114/2012
.
Reserved on: May 4, 2016
Decided on: May 5, 2016
________________________________________________________________
State of Himachal Pradesh ...... Appellant
Versus
Ajay Kumar ........Respondent
________________________________________________________________
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge
Whether approved for reporting? 1 yes.
________________________________________________________________
rt
For the appellant : Mr. P.M. Negi, Deputy Advocate
General.
For the respondent : Mr. Rajesh Mandhotra, Advocate.
________________________________________________________________
Per Rajiv Sharma, Judge:
By way of the present appeal, the State has come before this Court laying challenge to Judgment dated 15.10.2011 rendered by the learned Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, Himachal Pradesh in S.T. No. 21/2011, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offences under Sections 498(A), 302 and 201 IPC, has been acquitted.
2. Case of the prosecution, in a nutshell, is that the deceased Bandana was married to accused Ajay Kumar in 1 Whether the reporters of the local papers may be allowed to see the judgment? .
::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 2February, 2010. After a few months of marriage, the accused started torturing and harassing the deceased. On 10.10.2010, at .
about 10 PM accused came to his house under the influence of liquor. His wife, Bandana, raised objection as to why the accused had consumed liquor. Upon this, the accused tried to beat Bandana. She went to the kitchen. Accused followed her.
of Accused poured Kerosene oil on her and set her on fire. Bandana raised alarm and consequently accused tried to extinguish the fire with the help of quilt. Bandana was taken to Palampur rt Hospital for medical treatment. In the same evening, her statement was recorded in Palampur Hospital by the police, wherein she stated that she sustained burn injuries as a result of accident because the Can of Kerosene oil suddenly fell on her and her clothes caught fire. The injured was referred to RPGMC Tanda, where she was given medical treatment. On 25.10.2010, Bandana desired to make her statement. Tehsildar Kangra was associated by the police and in the presence of Tehsildar Kangra in Tanda Hospital, statement of injured Bandana was recorded, wherein she categorically stated that she had made the earlier statement under the influence of her husband/accused, who had threatened to kill her parents. In her subsequent statement, Bandana stated that she was being tortured by the accused. On 10.10.2010, when accused came home under the influence of ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 3 liquor, she raised objection, upon which accused sprinkled Kerosene oil on her and set her on fire. On the basis of said .
statement, FIR was registered. Investigation was carried out.
Police took into possession the Can. Accused was arrested. Place was got identified. Bandana died on 30.10.2010 at Tanda Hospital. Inquest papers were prepared. Case property was sent of for chemical examination to RFSL Dharamshala. The Investigating Officer visited the spot and prepared the spot map.
Investigation was completed. Challan was put in the Court after rt completing all the codal formalities.
3. Prosecution has examined as many as eighteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. One witness was examined on the side of accused. Learned trial Court acquitted the accused. Hence, the present appeal by the State.
4. Mr. P.M. Negi, Deputy Advocate General has vehemently argued that the Prosecution has proved its case against the accused.
5. Mr. Rajesh Mandhotra, Advocate, has supported Judgment dated 15.10.2011.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 47. PW-1 Desh Raj testified that he was posted as Tehsildar Kangra. On 25.10.2010, police had moved an .
application before him to record the statement of one lady named Bandana, who was burnt and admitted in Tanda Hospital. He allowed the application, Ext. PW-1/A. He went to Tanda Hospital.
Doctor opined that Bandana was fit to make statement. He of started making enquiries from Bandana. ASI Joginder reduced the statement into writing. Father of Bandana was also present at that time. Statement of Bandana is Ext. PW-1/C. rt In his cross-examination, he has admitted that the previous statement made by Bandana was not shown to him. He did not record statement himself because, at that time, condition of Bandana was critical. He was asking questions from Bandana. His statement was recorded on 24.11.2010. He denied that the statement of Bandana, Ext. PW-1/C was written under the pressure of her parents.
8. PW-2 Deep Kumar deposed that his daughter (deceased) was married to accused. After marriage, accused used to beat his daughter. On 10.10.2010 in the night at 2.30 AM, mother of accused telephonically told that his daughter had been burnt. Telephone was received on the intervening night of 10th and 11th October. Accused had taken his daughter to Tanda. He had gone to Tanda. At Tanda, his daughter told that accused ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 5 used to beat her. Accused had set her on fire after pouring Kerosene on her. In his presence at Tanda Hospital, Tehsildar .
had recorded statement of his daughter, Ext. PW-1/C. It was also signed by him. In his cross-examination, he has admitted that both the hands of accused were burnt while extinguishing fire.
He did not remember whether he disclosed to the police that of accused had left his daughter at Tanda. He denied the suggestion that till 25th October, accused was present at Tanda. He admitted that he has not attended the marriage of his daughter(deceased).
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9. Statement of PW-2 Deep Kumar has been fully corroborated by PW-3 Saroj Kumari. PW-3 Saroj Kumari is the mother of deceased Bandana. She deposed that on the intervening night of 10th and 11th October, 2010, they received a telephone from mother of accused that her daughter had been burnt. The accused was beating her daughter. Her daughter was taken to Tanda Hospital. She remained with her daughter at Tanda Hospital for 21 days. The daughter told her that accused had beaten her and thereafter he had poured Kerosene oil and set her on fire. Deceased gave statement at Tanda before the Tehsildar. In her cross-examination, she has admitted that initially accused and his family members had taken deceased to Palampur Hospital. She admitted that both the hands of accused were burnt while extinguishing fire. She admitted that her ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 6 daughter had given statement at Palampur Hospital. She also admitted that her daughter had given statement that she caught .
fire accidentally. She admitted that the accused tried to extinguish fire after putting quilt on her daughter. Volunteered that accused had done so because neighbourers had seen her daughter burning.
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10. PW-4 Lalit Kumar deposed that he was President of Ghuggar Panchayat. On 26.10.2010, police had recovered a three litre plastic Can from the kitchen of accused. At that time other rt witness, Sanjeev Kumar, was also present with them. Memo Ext.
PW-4/A was prepared to this effect, which was signed by him and Sanjeev Kumar.
11. PW-5 Jyoti Parkash deposed that the accused, in his presence as well as presence of Ashok Kumar, had given statement to the police that he had washed the clothes of deceased in the Kuhal and thrown the burnt clothes in Baner Khud from the bridge near Tanda Hospital.
12. PW-6 HHC Ranjeet deposed that on 28.10.2010, accused had given statement to the police that he could identify the spot where he had thrown his burnt clothes. Memo Ext. PW-
5/A was prepared.
13. PW-7 HC Surjit Kumar deposed that on 25.10.2010 after receiving the information, he alongwith ASI Yoginder Pal ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 7 had gone to Tanda Hospital in Government Vehicle. At 9.15 PM, from Kangra Tehsildar was brought to Tanda and they reached at .
Tanda Hospital at 1 PM. In the presence of Tehsildar, ASI Yoginder Pal had written the statement of deceased Ext. PW-1/C. At that time he and father of deceased were present. Thereafter, FIR was registered at Police Station, Palampur.
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14. PW-10 Dr. R.K. Ahluwalia deposed that on 11.10.2010, police moved an application Ext. PW-10/A before him for recording the statement of deceased. He gave opinion that rt the patient was fit to give statement and also carried out her medical examination. On 11.10.2010, he medically examined deceased with the alleged history of burns on 11.10.2010 at 12 midnight, when patient was boiling milk and Kerosene oil fell on her. He issued MLC Ext. PW-10/C.
15. PW-11 Constable Kushal deposed that on 11.10.2010, after receiving Rukka from Civil Hospital, Palampur, report Ext. PW-11/A was registered in the Police Station, Palampur. On 25.10.2010, Rapat Ext. PW-11/B was registered regarding the fact that deceased had expressed to give her statement for second time.
16. PW-12 HC Pardeep Kumar deposed that he moved an application for conducting medical examination of deceased.
The Medical Officer had opined that patient was fit to make ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 8 statement. In the presence of Veena Devi, sister-in-law of the deceased, statement Ext. PW-12/A was recorded by him.
.
17. PW-13 Dr. Susheel Sharma has conducted post-
mortem examination of deceased on 30.10.2010. Post-mortem report is Ext. PW-13/B. According to him, cause of death was septicemic shock as a consequence of ante mortem burn injuries.
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18. PW-14 Dr. Navneet Kumar deposed that the deceased was admitted in emergency in the Burn Ward on 11.10.2010 vide CR No. 43557 as a referred case from Civil rt Hospital Palampur at 4.35 AM. As per file record of the patient, there was alleged history of deceased getting burns at 11 PM on 10.10.2010, while cooking food. After 25.10.2010, the condition of the deceased deteriorated day by day. She had difficulty in breathing. Provisional cause of death was 80-85% superficial to deep flame burns with septicemia.
19. PW-15 Dr. Amit Joshi deposed that on 25.10.2010, an application was moved by police Ext. PW-15/A for seeking opinion whether the patient was fit to make statement. He gave opinion Ext. PW-15/B that the patient was conscious and orientated to time, place and person and fit to give statement at 8.15 PM on 25.10.2010.
20. PW-18 ASI Yoginder Pal deposed that he inspected the spot on 26.10.2010 and prepared spot map Ext. PW-18/E. ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 9 He got the photographs taken. On 26.10.2010, he conducted the house search of accused in the presence of Lalit Kumar and .
Sanjeev Kumar from where a plastic Can Ext. P1 was recovered and sealed. On 25.10.2010, he moved an application Ext. PW-
15/A before the Doctor for recoding the statement of Bandana and obtained the medical opinion Ext. PW-15/B. On the same of day, he moved an application Ext. PW-1/A before Tehsildar for recording the statement of Bandana. On the same day, Tehsildar appended his endorsement Ext. PW-1/B. On 26.10.2010, he rt recorded the statement of witnesses. On 28.10.2010 accused got recorded his statement Ext. PW-5/A under Section 27 of the Indian Evidence Act in the presence of Jyoti Parkash, Ashok Kumar and HHC Ranjit Singh. Accused got identified the spot, where he had thrown burn clothes. Clothes were not recovered.
In his cross-examination, he has admitted that the Tehsildar Desh Raj Jaryal, himself had not recorded the statement of deceased in his presence. He had recorded the statement. When statement of the deceased was recorded, doctor was present. It was the same Doctor, from whom he had obtained opinion to record the statement of deceased. He admitted that he had obtained MLC of accused regarding injuries sustained by him on his hand.
::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 1021. What emerges from the facts discussed herein above is that the marriage of deceased was solemnised with the accused .
in the month of February, 2010. Accused came to his house in drunken condition. His wife objected to this. She went inside the kitchen, accused followed her and put her on fire by pouring Kerosene on her. Deceased was taken to CH at Palampur. Then of she was referred to Dr. RPGMC Tanda.
22. PW-2, Deep Kumar is the father of the deceased.
According to him, on 10.10.2010 in the night at 2.30 AM, mother rt of accused telephonically told that that his daughter had been burnt. Accused had taken his daughter to Tanda. He had gone to Tanda. His daughter told that the accused used to beat her.
Accused had set her on fire after pouring Kerosene oil on her.
Statement of PW-2 Deep Kumar has been corroborated by PW-3 Saroj Kumari. According to her, deceased told her that the accused has beaten her and thereafter poured Kerosene oil and set her on fire. Post mortem was conducted by Dr. Susheel Sharma, PW-13. According to the opinion, cause of death was septicemic shock as a consequence of ante mortem burn injuries.
PW-14 Dr. Navneet Kumar initially examined the deceased. She had received 80-85% superficial flame burn injuries. PW-12 Pardeep Kumar, deposed that he moved an application for conducting medical examination of deceased. The Medical Officer ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 11 had opined that patient was fit to make statement. In the presence of Veena Devi, sister-in-law of the deceased, statement .
Ext. PW-12/A was recorded by him. This statement was recorded on 11.10.2010.
23. We have gone through the statement Ext. PW-12/A. It was recorded by PW-12 Pardeep Kumar in the presence of of Veena Devi, sister-in-law (Jethani) of the deceased. He has recorded that on 10.10.2010, at 10 PM, when husband of deceased came back, they were eating food at 11 PM. She was rt boiling milk. Gas was burning. In the meantime, a Can kept on the shelf accidentally fell and she was drenched in oil and her clothes caught fire after the oil caught fire from the gas stove. Her husband tried to extinguish the fire. Hands of her husband were also burnt.
24. The deceased desired to give second statement, on the basis of which PW-18 Joginder Pal moved an application Ext.
PW-15/A. On the same day, he moved an application Ext. PW-
1/A before Tehsildar for recording the statement of Bandana. On the same day Tehsildar appended his endorsement Ext. PW-1/B. According to PW-15 Dr. Amit Joshi, patient was conscious and orientated to time, place and person and fit to give statement at 8.15 PM on 25.10.2010. Yoginder Pal has reduced the statement of Bandana into writing. At that time, father of the deceased was ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 12 also present. PW-7 Sanjeev Kumar also deposed that on 25.10.2010 after receiving the information, he alongwith ASI .
Yoginder Pal had gone to Tanda Hospital in Government Vehicle.
At 9.15 PM, from Kangra, Tehsildar was brought to Tanda and they reached at Tanda Hospital at 1 PM. In the presence of Tehsildar, ASI Yoginder Pal had written the statement of of deceased Ext. PW-1/C. At that time, he and father of deceased were present. In his cross-examination, PW-18 ASI Yoginder Pal, admitted that the statement was not recorded by the Tehsildar rt himself but he had recorded the statement of deceased in the presence of Tehsildar. When said statement was recorded, doctor was present. He was the same doctor, from whom he had obtained opinion for recording the statement of the deceased. In her statement/dying declaration, recorded on 25.10.2010, she has categorically deposed that relations between her and accused remained cordial for 2-3 months. Thereafter he was into heavy drinking and he used to harass her. He used to beat her. He used to physically torture her. On 10.10.2010, at about 10 PM, her husband came drunk. She asked accused that why he had come to the house drunk. He gave her beatings. He tried to catch hold of her. She went into kitchen. Accused followed her. Her husband was in a fit of anger. He picked an oil Can and poured it on her and put her on fire. She raised alarm. Her husband put a quilt ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 13 on her and tried to save her. Hands of the accused were burnt.
Relatives took the deceased to Palampur Hospital. Earlier .
statement was given by her under the influence of her husband.
He threatened that in case deceased narrated true incident, he would kill her parents. Her husband used to torture her physically and mentally. He has knowingly put her on fire. It is of true that the deceased has made statement on 11.10.2010, Ext.
PW-12/A absolving the accused. However, she has categorically stated in her second statement Ext. PW-1/C that earlier rt statement was under the influence of her husband. Her husband had threatened her not to reveal the truth. He had threatened to kill her parents. Deceased was declared fit to make statement.
Statement was recorded in the presence of PW-1 Desh Raj.
Condition of the deceased was deteriorating. He made enquiries from the deceased. The statement was reduced into writing by ASI Joginder Pal. She has stated the manner in which accused came to the house drunk. When she objected to the accused coming in drunken condition to the house, he tried to catch hold of her. She went into kitchen. Accused picked up a Can of Kerosene and put her on fire. She received 80-85% burn injuries.
She died due to septicemic shock as a consequence of ante mortem burn injuries. It would be pertinent at this stage to observe that earlier statement was recorded vide Ext. PW-12/A ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 14 when Jethani (sister-in-law) of deceased was present. Accused was also present at that time. It has come in the statement of .
PW-3 Saroj Kumari that the accused used to give beatings to the deceased. Learned trial Court has erred in law by discarding the subsequent statement /dying declaration made by the deceased on 25.10.2010. Reason assigned by the learned trial Court for of discarding the statement of deceased dated 25.10.2010 and placing strong reliance on statement dated 11.10.2010 (Ext. PW-
12/A) is contrary to the well settled position that plural dying rt declarations are to be assessed separately. Accused has also tried to destroy the evidence as per the statement of PW-5 Jyoti Parkash and PW-6 Ranjeet. Accused has got the spot identified where he had thrown the clothes in a Khud, which was adjacent to his house. Accused has produced DW-1 Dr. Arvind Sharma he has examined the accused. He noticed simple injuries on the person of accused. He proved MLC Ext. DW-1/A. Injuries as mentioned in the MLC were possible if one tried to extinguish fire on other person.
25. Mr. Rajesh Mandhotra, Advocate has argued that the deceased was burnt due to accidental fire. He also argued that accused tried to douse the fire. However, fact of the matter is that it has come on record that the accused tried to douse fire only when neighbourers noticed that deceased was put on fire. Even ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 15 if, hypothetically, it is presumed that accused has tried to douse the fire and suffered injuries, it would not absolve him of the .
offence he has committed. Thus, the prosecution has proved beyond reasonable doubt that the accused has poured kerosene oil on Bandana and put her on fire, which resulted in her death on 30.10.2010. As per the report of RFSL Dharamshala, Ext. PZ, of traces of kerosene oil were detected in the contents of parcel Ext.
P4. Accused has also tried to destroy the evidence. There is sufficient material, as per statement/dying declaration made by rt the deceased and as per the statement of PW-2 Deep Kumar and PW-3 Saroj Kumari, that the accused used to beat the deceased.
The accused used to cause physical and mental torture to the deceased. Accused was also into heavy drinking.
26. Second dying declaration, made by the deceased on 25.10.2010, before PW-1 Desh Raj, is true and voluntary. Same is not the outcome of tutoring or prompting. Deceased was in a fit state of mind to make the statement. Doctor has certified that she was fit to make statement and the same was recorded by ASI Yoginder Pal in the presence of PW-1 Desh Raj.
27. Their Lordships of the Hon'ble Supreme Court in Shudhakar v. State of Madhya Pradesh reported in (2012) 7 SCC 569, have held that the 'dying declaration' is the last statement made by a person at a stage when he is in serious ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 16 apprehension of his death and expects no chances of his survival.
At such time, it is expected that a person will speak the truth and .
only the truth. Their lordships have held as under:
16. We may, now, refer to some of the judgments of this Court in regard to the admissibility and evidentiary value of a dying declaration. In the case of Bhajju @ Karan v. State of M.P. [(2012) 4 SCC 327], this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes statement of the deceased admissible, which has been of generally described as dying declaration. The court, in no uncertain terms, held that it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence.
The dying declaration, if found reliable, could form the basis of conviction. This principle has also earlier been stated by this rt Court in the case of Surinder Kumar v. State of Haryana (2011) 10 SCC 173 wherein the Court, while stating the above principle, on facts and because of the fact that the dying declaration in the said case was found to be shrouded by suspicious circumstances and no witness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration.
17. In the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14 SCC 444], the Court expressed a caution that a mechanical approach in relying upon the 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 other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
18. In the case of Laxman (supra), the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:
"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 ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 17 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. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the of 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. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the rt medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. 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."::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 18
19. In Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr. [(2012) 4 SCC 722], the court inter alia discussed the law related to dying declaration with some elaboration: -
.
"23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand (2003) of 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be rt cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.
26. Reference in this regard can be made to Joseph v. State of Kerala (2003) 1 SCC 465 and Tika Ram v. State of M.P. (2007) 15 SCC 760. Even in Jhapsa Kabari v.
State of Bihar (2001) 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.
27. In Jhapsa Kabari (supra), this Court noted the fact that simply because one of the witnesses (a fourteen- year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 19 to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as .
the said witness is reliable and trustworthy.
28. In the present case, the sole eyewitness is stated to be a police officer i.e. PW 1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The contention raised on behalf of the appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out.
29. Therefore, the first question that arises for consideration is whether a police officer can be a sole of witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution.
30. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will rt always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
31. This Court in Girja Prasad (2007) 7 SCC 625 while particularly referring to the evidence of a police officer said that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person.
There is also no rule of law which lays down that no conviction can be [pic]recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
20. The 'dying declaration' is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 20 person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, .
there is no reason for the courts to doubt the truthfulness of such dying declaration.
28. Their Lordships of the Hon'ble Supreme Court in Ashabai and another v. State of Maharashtra reported in (2013) 2 SCC 224, have held that when there are multiple dying of declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected solely rt because of certain variations in another declaration. Their lordships have held as under:
"15. About the evidentiary value of dying declaration of the deceased, it is relevant to refer Section 32(1) of the Indian Evidence Act, 1872, which 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 as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) ..... .....
..... .....
::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 21(8) .... ...." It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement .
relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the of prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the rt deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other."
29. PW-10 Dr. R.K. Ahluwalia has deposed that the patient was admitted with burn injuries with alleged history of flame burning on 10.10.2010 at 10 PM while cooking food. This history was recoded at the initial stage, when deceased was admitted to the hospital at Palampur.
30. Their Lordships of the Hon'ble Supreme Court in Rakesh and another v. State of Haryana reported in (2013) 4 SCC 69, have held that in view of the categorical statement by deceased in her dying declaration to the contrary, reference made ::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 22 by doctor PW 11 while recording history of patient would not affect prosecution case. Their lordships have held as under:
.
"14. Dr. S.P. Chug, Casualty Medical Officer, PGIMS, Rohtak was examined as PW-11. In his evidence, he deposed that on 15.05.1998 at about 1.30 a.m., he examined Kailash W/o Rakesh and on examination he found that the patient was conscious, pulse and BP were unrecordable. He further stated that there were superficial to deep burns involving almost all the body except the legs below the knees. There was approx. 85% burns which were subjected to surgeon's opinion and was kept under observation. Though it was pointed out that while recording the history of the patient, he noted that it was the of accidental fire while cooking food, in view of categorical statement by the deceased in her dying declaration the reference made by PW- 11 while recording the history of the patient would not affect the prosecution case."
31. rt Their Lordships of the Hon'ble Supreme Court in Gurdip Singh v. State of Punjab reported in (2013) 10 SCC 395, have held that it is not invariably necessary under Section 498-A that cruelty should be in connection with demand for dowry .
Their lordships have held as under:
Section 498A of IPC deals with the offence of cruelty by the husband or relative. If a married woman is subjected to cruelty by the husband or his relative, he is liable for conviction under Section 498A. There is no requirement under Section 498A that the cruelty should be within seven years of marriage. It is also not invariably necessary under Section 498A that the cruelty should be in connection with the demand for dowry. It is interesting to note that Section 498A was introduced as per Act 46 of 1983 to "suitably deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by their in-laws" and Section 304B was introduced as per Act 43 of 1986 to make the penal provisions "more stringent and effective".
32. Thus, the prosecution has proved its case against the accused under Sections 498(A), 302 and 201 IPC sufficiently and beyond any reasonable doubt.
::: Downloaded on - 15/04/2017 20:17:00 :::HCHP 2333. In view of the discussions and analysis made hereinabove, the present appeal is allowed. Judgment dated .
15.10.2011 rendered by the learned Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, Himachal Pradesh in S.T. No. 21/2011 is set aside. The accused is convicted for the commission of offence under Sections 498-A, 302 and 201 IPC.
of
34. The State is directed to produce the accused on 18.5.2016 to be heard on quantum of sentence.
List on 18.5.2016.
rt (Rajiv Sharma)
Judge
(Chander Bhusan Barowalia)
Judge
May 5, 2016
(vikrant)
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