Allahabad High Court
Lallu Singh And Another vs State Of U.P. on 30 July, 2018
Bench: Amreshwar Pratap Sahi, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 40 Case :- CRIMINAL APPEAL No. - 4924 of 2014 Appellant :- Lallu Singh And Another Respondent :- State Of U.P. Counsel for Appellant :- Prabha Shankar Pandey Counsel for Respondent :- Govt.Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Bachchoo Lal,J.
Heard Sri P.S. Pandey learned counsel for the appellant and Sri Ajit Ray learned AGA for the State. The two appellants before us Lallu Singh and Smt Heera Devi are the husband and mother-in-law of the deceased Smt Seema who were charged with the offences under Section 498-A read with Section 304-B IPC and in the alternative under Section 302 IPC read with Section 34 thereof for having committed the murder of the deceased by burning her to death after pouring kerosene oil on the 10th of July, 2012 at about 7:00 am.
The trial court did not find the appellants to be guilty of the offences under Section 498-A read with Section 304-B but has convicted the appellants for having committed the offence under Section 302 IPC read with Section 34 IPC and have sentenced them to life imprisonment together with Rs.5,000/- fine each and in default thereof to undergo one month rigorous imprisonment vide impugned judgment dated 30th September, 2014.
The story as unfolded in the FIR is that the appellant Lallu Singh was married to the deceased in the year 1995 and five children were born from the wedlock. The FIR further narrates that since the in-laws of the deceased including the appellants harassed the deceased and demanded dowry. The deceased was also assaulted, as a result whereof, she was compelled to lodge a case against them. However on account of the influence exercised by her in-laws she later on withdrew the case. On 10th July, 2012 at about 7:00 am in the morning the deceased was assaulted by the accused and after sprinkling kerosene oil over her, she was burnt, the information whereof was received by the informant Member Singh, father of the deceased and examined as PW-1, through his brother Ravindra Singh who is a salesman in a liquor shop and has been examined as PW-3. It is also narrated in the FIR that when the informant's brother went to see his niece, the appellants tried to assault him as a result whereof he ran away, and immediately informed his brother the informant about the incident. The informant thereafter along with his relatives arrived and came to know about the incident. On their arrival, the appellant and his family members had all fled away, and accordingly, the informant along with the aid of other family members rushed the deceased to the District Hospital, at Orai in a Marshal vehicle. After having admitted her, the informant reached the police station namely, Kotwali at Kalpi, District Jalaun and gave the information to the police that his daughter was lying in a dying state in the Hospital, but when she was conscious she had disclosed the incident to him and to his family members. The informant further alleged that the in-laws of the deceased were greedy and it is for this reason that they have caused the injuries to the deceased who is lying in a dying state.
At this stage it would be appropriate to mention that the written report tendered by the informant Member Singh examined as PW-1 is a type written document that bears the date 10th July, 2012 which is evident from a perusal of the original records before us. The same contains an endorsement of the Station Officer Incharge directing the Head Moharrir to register the same as an FIR on 13th July, 2012. Accordingly, the check report is dated 13th July, 2012 which has been transcribed by PW-6 Sanjeev Kataria who was the then Head Moharrir (Constable Clerk) at the Kotwali Police Station at Kalpi.
From the records, we further find that when the deceased was in Hospital her statement was recorded between 1:50 pm and 2:05 pm on 10th July, 2012 itself by Shailendra Kumar, the then Naib Tehsildar (Executive Magistrate) of Tehsil Orai, District Jalaun who has been examined as PW-9. This recording was in the presence of Dr M.L. Nagaria, Medical Officer Community Health Centre Modh, District Jhansi who certified the deceased being in her complete senses at the commencement of the recording of the statement, during the recording of her statement and even thereafter. He has been examined as PW-10.
The FIR was registered on 13th July, 2012. Smt Seema breathed her last on 15th July, 2012 at 7:00 pm after she had been referred to the Hospital at Kanpur. Her inquest was prepared on 16th July, 2012 by Sub Inspector of Police Shiv Nath Singh who has been examined as PW-5. The post mortem was conducted on the same day by Dr K.C. Bharadwaj who has been examined as PW-7.
The charges were thereafter framed upon the completion of the investigation against the appellants as mentioned aforesaid and they were put to trial. The father of the deceased Member Singh, the two uncles of the deceased Mahendra Singh and Ravindra Singh who were examined as PW-1, PW-2 and PW-3, and Ramjeet Singh who was an another witness of the village and was examined as PW-4, all uniformly turned hostile.
Shiv Nath Singh who had prepared the inquest report and Sanjeev Kataria, the Head Moharrir who has registered the FIR were examined thereafter as PW-5 and PW-6. Dr K.C. Bharadwaj who had carried out the post mortem report proved the same through his deposition as PW-7. PW-8 Ram Pal Singh is the Investigating Officer who carried out the investigation and in his deposition proved the police documents and went a step ahead to support the statement of the accused under Section 313 Cr.P.C. by stating that he had come to know from the villagers that the appellant Lallu Singh had sold his grains for writing off a tractor loan, as a result whereof, he had no food grains left for his family, and on having done this, the deceased had protested, as a result whereof, the appellant Lallu Singh had assaulted her and being frustrated the deceased had set herself on fire. PW-9 is the Naib Tehsildar who recorded the dying declaration of the deceased in the presence of PW-10 Dr Nagaria who have testified having recorded the dying declaration when the deceased was in her full senses. The accused thereafter got their statements recorded under Section 313 Cr.P.C. followed by the impugned judgment.
Assailing the findings of the trial court on the evidence relied on by the trial court, Sri P.S. Pandey learned counsel for the appellant submitted that this was a clear case of suicide and not a homicide which was clearly established from the surrounding circumstances particularly the fact that the husband and wife were leading a married life without any dispute in between for the past seventeen years and five children were born from their wedlock. He submits that there was no reason either for the husband or the other appellant Heera Devi to have committed the offence for which there was neither any existing motive nor any past dispute. He submits that the deceased appears to have burnt herself out of some frustration may be due to financial constraints of the family. She set herself on fire by sprinkling kerosene oil and in the above circumstances, the hypothesis of the murder having been committed by the appellants is absolutely unfounded. The prosecution, therefore, could not establish any such cause or motive on the part of the appellants to have committed the offence, and therefore, this was clearly indicative of the fact that the deceased had committed suicide.
He has then urged that the FIR has been lodged after three days for which there is no valid explanation, inasmuch as, if the case was one of the attempt to murder by an assault of the nature as described, and if, the prosecution witnesses themselves claim to have taken her to the Hospital and got her dying declaration recorded, then there was no reason for them to have waited for three days to have lodged the FIR, and consequently, this being a complete afterthought and the delay in the FIR having not been explained clearly indicates towards the fact that this was not a case of homicide and was a suicide which later on was sought to be converted into a case of murder. Consequently, this unexplained delay in the FIR completely takes away the foundation of the prosecution of the appellants having committed murder.
He has then proceeded to castigate the process of the recording of the dying declaration by contending that the Naib Tehsildar was not a person authorized in law who could have recorded such a declaration and he having failed to record any satisfaction about the fitness of the state of mind of the deceased, the dying declaration does not satisfy the test to meet the ingredients of Section 32 of the Indian Evidence Act and to make it relevant and admissible or even reliable for the purpose of upholding the conviction. He contends that even if the attending doctor had issued a certification of the deceased being in-her senses, the same would not amount to any satisfaction of the Naib Tehsildar who in his cross examination has admitted the fact that he did not ask the deceased as to whether she was capable of giving a statement or not nor did he record any such satisfaction himself. In further cross examination it is pointed out that he has admitted having communicated with the deceased but he did not record this fact in his own language at the foot of the dying declaration. He also admitted the deceased not having named the mother-in-law, and therefore, if such a name was not transcribed therein the appellant Heera Devi's participation is ruled out. Sri Pandey submits that such a dying declaration therefore cannot be made the basis for bringing home the guilt against the appellants and the same being unreliable, the trial court committed an error in proceeding to convict the appellants on the said basis. For this Sri Pandey further drew support from the statement of the hostile witnesses PW-1 to PW-4 to contend that they have categorically stated that they were present with the deceased and no such declaration was made by the deceased who was unable to speak anything. His contention is that the FIR itself indicates that she was in the Hospital in a dying state, and therefore, there was absolutely no material to establish that she was in a fit state of mind who has given a statement as has been recorded by the Naib Tehsildar. This, therefore, makes the recording of the statement questionable more so when the Naib Tehsildar himself has failed to record any such satisfaction in the document which was placed before the Court.
He has then urged that there was a serious lapse in investigation, inasmuch as, the deceased had five children out of whom the eldest was about 14 years of age. The Investigating Officer did not make any attempt to record the statement of the children who could have been the best possible witnesses in relation to the attempt by the deceased who may have committed suicide. By not probing into the incident and not recording the statement of such relevant witnesses, this lapse of the investigation amounts to a material omission, and even otherwise, they were not produced as witnesses hence an adverse inference should be drawn against the prosecution for withholding reliable and important witnesses. Consequently, this creates a serious doubt about the nature of the incident and such a reasonable doubt should be read in favour of the accused.
He further submits that the defence hypothesis as disclosed through the statement under Section 313 Cr.P.C. has been virtually ignored by the trial court which was a clear circumstance indicating and pointing towards the incident being that of suicide. The same also stood supported by the testimony of PW-8, the Investigating Officer who had supported this plea while collecting evidence during investigation. There was no reason to disbelieve this hypothesis which had a greater probability and the evidence whereof was not far to see. This coupled with the circumstances of the family and the marriage having lasted for more than 17 years was sufficient to construe that the deceased had attempted to commit suicide and such a probability ought not to have been ruled out. Consequently, the defence had clearly succeeded in portraying a reasonable doubt and the trial court by not appreciating it has committed an error by proceeding to treat the case to be one that of murder. To support his submission on the issue of dying declaration learned counsel Sri Pandey has relied on four decisions namely, Suchand Pal Vs. Phani Pal 2003 (11) SCC 527, Shaikah Bakshu Vs. State of Maharashtra 2007 (11) 269, Sher Singh Vs. State of Punjab 2008 (4) SCC 265 and Surinder Kumar Vs. State of Haryana 2011 (10) SCC 173.
Controverting the aforesaid submissions on behalf of the appellants, learned AGA for the State Sri Ajit Ray has urged that the circumstances in which the deceased caught fire coupled with the fact that the appellants were absconding at the time when the incident occurred when the informants had arrived at the house, and further that they did not make any attempt to get her treated in Hospital, clearly demonstrates that they were the perpetrators of the crime. He further submits that it is evident from the dying declaration that it is the appellants who have been categorically nominated by the deceased to have first assaulted her and then sprinkled kerosene oil and set her to fire. He submits that the dying declaration is complete in all respects and is duly certified by the attending doctor as well as by the concerned Magistrate who recorded the same that the deceased was in a fit state of mind to have given the statement which is clearly admissible and has been rightly believed by the trial court keeping in view the provisions of Section 32 of the Indian Evidence Act. To support his submission he has relied on the judgment in the case of Prem Kumar Gulati Vs. State of Haryana & Another 2015 (1) SCC Criminal 486 paragraph no. 13 and the case of Vijay Pal Vs. State (Government of NCT of Delhi) 2015 (4) SCC 749 paragraph nos. 23 and 24. He contends that these judgments support the stand taken by the prosecution to the extent, that even if, the deceased had sustained 100% burn injuries her dying declaration is acceptable and admissible in evidence. He further submits that the appellants have been unable to discharge the onus shifted on them with regard to the occurrence of the incident and the place thereof. The evidence recorded categorically suggests only one hypothesis and that which has been rightly believed by the trial court which does not call for any interference on any of the submissions raised on behalf of the appellants.
Having considered the submissions raised, we may point out that the Court has also come across the latest decision in the case of Ramesh and others Vs. State of Haryana 2017 (1) SCC 529 where the Supreme Court examining the legal status to be applied in cases of 100% burn injuries has held that notwithstanding such injuries, if due precautions have been taken in recording of the statement and the same inspires confidence then in that event in the given circumstances, a dying declaration of an injured with 100% burn injuries can also be acceptable. Apart from this, the issue as to whether the statement so recorded has to be read-over and explained to the injured person is also not a sine qua non in view of the decisions of the Apex Court as relied on and held by the Full Bench of the Bombay High Court in the case of Ganpat Bakramji Lad Vs. State of Mahrarashtra Crl. Appeal No. 186 of 2013 decided on 09th March, 2018.
In the aforesaid background, we now proceed to examine the impact of the witnesses of fact having turned hostile. PW-1, PW-2 and PW-3 are the blood relations of the deceased, PW-1 is the father, PW-2 and PW-3 is of the real uncle. In this regard suffice it to refer to the latest judgment in the case of Ramesh and others (supra) where the Supreme Court has come down heavily on such witnesses turning hostile and fostering the culture of compromise for various reasons. In the instant case, we find that PW-1 is the informant who has proved the lodging of the FIR. The FIR was lodged on the information from PW-3 Ravindra Singh. It is after having reached the spot that PW-1 himself is stated to have lifted the body, and carried the deceased to the hospital with the aid of his relatives where she lay in a dying condition. The FIR also categorically states that while the deceased was still conscious, she had narrated the incident. This is further corroborated by the dying declaration of the deceased which was recorded on the same day between 01:50 pm and 02:05 pm at the District hospital Orai where she had been lodged by the informant and her relatives. The declarant was specific in her averments stating that the name of her husband was Lallu Singh and that at about 07:00 am on the same day she had been assaulted by her mother-in-law, and that her husband and mother-in-law caught hold of her and sprinkled kerosene oil and set on her fire. The premises in which he was subjected to the aforesaid assault was also locked from outside, and it is the villagers who came and opened the same whereafter her parents were informed and then she was taken to the hospital. She has categorically stated that no one else was involved in it, and that when the incident took place her husband had driven her children away threatening them. She did not make any complaint against any other person on pointed questions being put to her by the Naib Tehsildar who recorded the said statement.
She died on 15th July, 2012 which is on the fifth day of the recording of the said dying declaration. There is no reversal of the said statement nor is there any evidence to indicate that she ever resiled back or made any effort to deny her statement. The witnesses who have turned hostile named above have simply stated that they were also present when the statement was recorded, and the declarant was not in a position to speak and her voice was absolutely unclear.
Keeping in view, the status of the dying declaration, we are unable to accept the said hostile testimony and which deserves to be discarded, for which we are fully supported in our view by the declaration of law made in the case of Ramesh and others (supra).
The Apex Court in the case of Vikas Vs. State of Maharashtra 2008 (2) SCC 516 was also dealing with a case where the father of the victim who deposed as PW-1 and the panch witness PW-2, turned hostile and were declared by the prosecution as such. In spite of this, the Apex Court relied on the dying declarations and upheld the judgment of the trial court as well as the High Court holding that there was no reason to discard the prosecution case if the witnesses have turned hostile who for some known reasons were willing to oblige the accused. The said decision also therefore comes to support our conclusions.
Coming to the main thrust of the argument of the learned counsel for the appellant with regard to the status of the dying declaration, we find that the dying declaration was recorded by the Naib Tehsildar who is also an Executive Magistrate. For this reference may be had to Section 6 of the Cr.P.C. read with Section 21 thereof. A declaration before an Executive Magistrate can be made and is lawfully recognized.
The question as to whether such Magistrates are considered more reliable for recording declarations have been dealt with by the Apex Court in the case of Khusal Rao Vs. State of Bombay AIR 1958 SC 22 followed in Dalip Singh Vs. State of Punjab 1979 (4) SCC 332 and also in the case of State of Punjab Vs. Amarjeet Singh 1988 Supplement SCC 704 where the statement had been recorded by a Police Officer. After having examined the contentions, the Apex Court held that the practice of the Investigating Officer recording a dying declaration during the course of investigation does not deserve to be encouraged. This appears to be so keeping in view the provisions of Section 162 of the Cr.P.C.
The law has been further explained in the case of Ravi Chander and others Vs. State Punjab 1998 (9) SCC 303 where it has been held that the Executive Magistrate is a disinterested witness and is a responsible officer. There was no circumstance or any material on record to suspect that the Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration. Again in the case of Vikas Vs. State of Maharashtra (supra), paragraph nos. 28 to 52 reiterates the same position holding that a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court. Referring to the Constitution Bench judgment in the case of Laxman Vs. State of Maharashtra 2002 (6) SCC 710, the Apex Court in another decision in the case of Kamalavva and another Vs. State of Karnataka 2009 (13) SCC 614 held that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor specially when the dying declaration was recorded by a Magistrate followed by his testimony.
We may add further with the aid of the aforesaid decisions that the law laid down by the Apex Court preferring a dying declaration recorded by an Executive Magistrate to be on higher footing is a law, and therefore, the Executive Magistrates as defined under the Criminal Procedure Code referred to hereianbove are acknowledged as authorities competent to discharge such a duty. Prior to the Amendment of the Criminal Procedure Code which came into effect from 1st of April, 1974, under the old provisions, confessions and dying declarations were found to be admissible under Section 80 of the Indian Evidence Act. We may usefully refer to the judgment of a learned Single Judge of this Court in the case of Emperor Vs. Suraj Bali AIR 1934 Alld 340. However that was under the old law and we further find that there were Government Orders relating to confessions promulgated in the State of U.P. in the year 1954, the reference whereof is to be found in the judgment of the Apex Court in the case of Ram Chandra and another Vs. State of U.P. AIR 1957 SC 381 (at page 386, column-2). The decision refers to the standing orders issued by the Government of Uttar Pradesh as Appendix-19 at page-566 of the Manual of Government Orders, Uttar Pradesh (1954 Edition). The said manual indicates that while recording confessions the Magistrate is exercising a judicial function.
Upon the new Ciminal Procedure Code being promulgated w.e.f. 1st of April, 1974, an administrative circular was issued by the Additional Registrar of this Court on 24th April, 1974 which is reproduced hereinunder.
"From Sri A.S. Srivastava, Additional Registrar, High Court of Judicature at Allahabad.
To All the District Judges Subordinate to the High Court of Judicature at Allahabad.
ADMINISTRATIVE (E) DEPARTMENT Circular Letter No. 61/Adm. (B) Dated Alld. April 24, 1974.
Sir, I am directed to say that on coming into force of new Cr.P.C., from April 1st, 1974, a question has arisen whether confessions and dying declarations shall be recorded and identification proceedings conducted by the Judicial Magistrates or by the Executive Magistrates. The Court has considered this matter and has decided that this work should continue to be done by the Executive Magistrates as was done by them prior to April 1st, 1974 and that the Judicial Magistrates need not do this work.
I am, therefore, to request you kindly to bring the above orders to the notice of all concerned for information.
Yours Faithfully, Sd/ ADDITIONAL REGISTRAR The aforesaid circular was modified by deleting the word confessions referred to in the earlier circular by another circular dated 7th May, 1974 reproduced hereinunder:-
"From Sri A.S. Srivastava, Additional Registrar, High Court of Judicature at Allahabad.
To All the District Judges Subordinate to the High Court of Judicature at Allahabad.
CIRCULAR LETTER NO. 70/ADM. (B) Dated Alld. May 7th, 1974.
SUBJECT:- Recording of dying declarations etc. Sir, I am directed to refer to the Court's Circular letter no. 61/Adm. (B) dated April 24, 1974 on the above subject and to say that the orders contained therein in so far as they relate to the recording of confessions by the Executive Magistrates have been wrongly mentioned.
I am, therefore, to request that the words "confessions and" mentioned in line three between the words "whether" and "dying" in the aforesaid Circular letter may be treated as deleted.
Yours faithfully, Sd/ (A.S. Srivastava.) ADDITIONAL REGISTRAR"
It appears that the practice of summoning Executive Magistrates for recording of dying declarations is being followed, keeping in view, the aforesaid position of law as expounded by the Apex Court and also the circular of this Court referred to hereinabove.
In the above background, when the recording of a dying declaration is in consonance with law, then apart from the statutory presumptions that may be available, the provisions of Section 114 (e) can also be referred to. A question arose about the presumptive value of such a declaration being recorded by an Executive Magistrate in terms of Section 80 of the Indian Evidence Act before the Bombay High Court in the case of Ganpat Bakramji Lad (supra). The Full Bench which was constituted to resolve the conflict posed the question as follows:-
"(i) Whether presumption under section 80 of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder?"
However while proceeding to answer the same and after referring to all the Supreme Court decisions on the issue of dying declaration and its acceptability and after referring to the provisions of Section 32 of the Indian Evidence Act held in Paragraph nos. 20.1 to 20.7 as follows:-
"20.1 There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. 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. A dying declaration which has been recorded by a competent Magistrate in the proper manner, i.e. to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends on oral testimony which may suffer from all infirmities of human memory and human character. Khushal Rao v. State of Bombay, MANU/SC/0107/1957 : AIR 1958 SC 22.
20.2 It is true that a dying declaration is generally to be recorded by a competent Magistrate. But the Court cannot be too technical and in substance, if feels convinced about the trustworthiness of the statement which may inspire confidence, such a dying declaration can be acted upon, even if it is not recorded by Magistrate. The Supreme Court, in Laxmi v. Omprakash and others (supra), however, deprecated the practice of Police officers recording dying declaration except where condition of the deceased was so precarious that no other alternative was left. In other words, merely because the statement of a deceased, as contemplated by section 32(1) of the Evidence Act. is recorded by a Police Officer, cannot be a ground for rejecting the same outright. If the Court is satisfied that the investigating agency was left with no alternative, and if the statement recorded by Police Officer, otherwise satisfies all the tests governing dying declarations, it can form the basis for conviction with or without corroboration, as the case may be.
20.3 Generally, the dying declaration ought to be recorded in the form of questions answers but, if the dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker, the mere fact that it is not in question and answer form cannot be a ground against its acceptability or reliability. But, to lend assurance to those factors, having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon. In the absence of availability of a Doctor to certify the above mentioned factors, if there is other evidence to show that the recorder of the statement satisfied himself about those requirements before recording the dying declaration, there is no reason as to why it should not be accepted. Ram Bihari Yadav (supra). If 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 accepted provided the Court ultimately holds the same to be voluntary and truthful. Thus, 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. Laxman vs. State of Maharashtra (supra).
20.4 There is no format as such of the dying declaration; neither the declaration need to be of longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the Court since dying declaration need not be drawn with mathematical precision that the declarant should be able to recollect the circumstances resulting in the available state of affairs. Panchdeo Singh v. State of Bihar, MANU/SC/0775/2001 : (2002) 1 SCC 577 and Arvind Sing v. State of Bihar MANU/SC/0310/2001 : (2001) 6 SCC 407.
20.5 If the dying declaration is recorded by a person/Magistrate/ Executive Magistrate it is the duly of the prosecution to specifically bring on record that the deceased had heard the statement so recorded and he/she admitted to be correct and true and puts his/her thumb impression in approval thereof. This is not mere formality but an essential part while recording a dying declaration, because the person who cannot be examined afterwards must, at least that time, should confirm correctness of the statement. Manohar Dadarao Landage v. State of Maharashtra, MANU/MH/1538/1999 : 2000 (2) Mh.L.J. 3.
20.6 Thus, in our opinion, if a competent Magistrate and, in his absence. Police Officer, if by and large follows the procedure recognized by judicial pronouncements and/or observes the principles laid down by the Supreme Court in various judgments, including the judgments referred to in this judgment, the statement in writing, as contemplated by section 32(1) of the Evidence Act, can be said to be recorded properly.
20.7 Thus, in our opinion, if a dying declaration is recorded properly, that is to say, by following due procedure as reflected in the judgments referred to in the foregoing paragraphs, if its contents are held to be proved, and if it stands to all tests to hold it trustworthy/truthful and voluntary, and if the Court is satisfied that the deceased was in fit state of mind when he made the declaration, it can form the basis for conviction without corroboration, irrespective of the fact whether the recorder repeats the contents thereof in his deposition before the Court. The essential requirement of law, as observed earlier, is that the statement, verbal or written, of the deceased should contain the cause of his death or the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question and not its repetition by the recorder before the Court."
The Full Bench does not appear to have squarely answered the question to the question posed about the presumptive value of the same in terms of Section 80 of the Indian Evidence Act, but it held that if it has been recorded properly it is acceptable and admissible.
From the above, it is thus clear that the recognition in law of a statement in the shape of a dying declaration recorded by an Executive Magistrate is to assure authenticity and is treated as more reliable as against any other form of recording.
We now proceed to examine the actual recording of the statement by PW-9 in the presence of PW-10. The deposition of PW-9 that was recorded on 11th September, 2014 by the trial court recites that the deponent on the orders of the Tehsildar of Orai proceeded towards the District Hospital where in the burn ward, he found Smt. Seema Singh aged about 32 years wife of Lallu Singh to have been admitted. He recorded the statement between 01:50 pm to 02:05 pm, and he further recites that before recording her statement the Emergency Medical Officer certified that she was in her full senses and issued a certificate to that effect. Not only that after recording of the statement the Emergency Medical Officer again certified that she still continued to retain her full senses. He has further stated that he recorded every answer to the questions put by him and which has been correctly recorded in the document that was proved by him. He however on cross examination stated that he did not ask the injured as to whether she was in her senses or not.
The aforesaid answer was sought to be capitalized by the learned counsel for the appellant contending that this statement indicates that he did not record his satisfaction after putting this question to the injured about the fitness of her mind. This argument even though attractive deserves to be rejected for the simple reason that the questions were being put to a person after having come to know that she was in her senses and certified by the doctor PW-10 in the presence of PW-9, and therefore, there was no point in putting a question to her as to whether she was her senses or not. Apart from this, the answers given by the deceased at the time of her declaration are categorical and exact to the nature of the queries made by PW-9. We may reproduce the said dying declaration in its entirety for a better appreciation of our understanding of the said statement.
"Jherh lhek flag W/o Sri Lallu Singh mez yxHkx 32 o"kZ R/o 'kkgtgkWiqj Fkkuk dkyih ftyk tkykSu vius iwjs gksl gokl esa gSA g- viBuh;
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Q. uke D;k gS rFkk mez fdruh gS\ Ans. lhek] mez 32 o"kZ Q. ifr dk D;k uke gS\ Ans. yYyw Q. 'kknh dc gqbZ Fkh rFkk fdrus cPps gS\ Ans. 'kknh dks 13&14 lky gqbZ] pkj yM+dh rFkk 1 yM+dk Q. ?kj dgkW gS\ Ans. 'kkgtgkWiqj] Fkkuk&dkyih] ft- tkykSu Q. ekbdk dgkW gS\ Ans. nsukiqj] ftyk & dkuiqj nsgkr Q. dSls ty x;hA Ans. lqcg lkr cts lkl us ekjk vkSj ifr rFkk lkl us idM+ dj esjs Åij rsy ¼feV~Vh dk½ Mkyk vkSj vkx yxk nhA ifr us lkdj yxh nhA fQj xkao ds yksxks us lkdj [kksydj eq>s ckgj fd;k vkSj ekbds okys dks lwpuk nh x;h rc os yksx vLirky yk;sA Q. vkSj tykus esa dksbZ 'kkehy FkkA Ans. ughA Q. tc tyk;k x;k rks cPps dgkW FksA Ans. ifr us cPpks dks ekj dj Hkxk fn;k FkkA Q. vkSj D;k pkgrh gksA Ans. dqN ugh Q. vkSj dqN dguk pkgrh gksA Ans. dqN ughA Q. vkSj fdlh ls dksbZ f'kdk;r rks ugh gSA Ans. fdlh ls ughA vaxwBk fu'kkuh lhek ¼nk;s gkFk dk½ mijksDr ejht us c;ku gksl gokl g- viBuh;
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In order to test this argument further, we find that in his cross examination PW-9 has stated that he had requested the deceased to give a correct answer to the questions which were being put to her. He however further stated that this fact was not recorded by him at the foot of the statement but he denied any suggestion being put to him of having written the answers on his own understanding. He further denied the suggestion of the deceased not being in a position to give the statement. He has also stated that he did not record the name of the mother-in-law of the deceased.
In order to further examine the correctness or otherwise of the status of the recording of the dying declaration, we may usefully refer to the testimony of PW-10 Dr. M.L Nagaria who was the attending Emergency Medical Officer at the time when the statement/dying declaration of the deceased was recorded. He has fully corroborated the testimony of PW-9 and on cross examination has clearly stated that he had certified the deceased being in her complete senses at the time of the recording of the evidence. He has categorically stated that he was present at the time of the recording of the declaration of the deceased, and he was fully satisfied about the fitness of the state of her mind.
The aforesaid deposition of PW-9 and PW-10 therefore leaves no room for doubt that their testimony is creditworthy and its trustworthiness does not get reduced by the statement of hostile witnesses who have gone to the extent of saying same that they did not hear the deceased speaking or getting her statement recorded. In the wake of this inebriated testimony of PW-9 and PW-10, we see no reason to discard it in order to assess and estimate correctness or otherwise dying declaration of the deceased. We are fully satisfied that the said testimony was recorded correctly which reflects a well oriented mind of the deceased at the time of deposition, and it conforms to the provisions of Section 32 of the Indian Evidence Act.
Learned counsel Sri Pandey submitted that there is a serious deficiency in the manner of recording namely that the Magistrate did not proceed to narrate the recording to the deceased before certifying it as correct. We cannot accept this proposition, inasmuch as, the argument appears to be on account of the impression gained from the wordings used under Section 164 Cr.P.C. which is a confession before a Judicial Magistrate and not an Executive Magistrate. A perusal of sub-section 4 of Section 164 would indicate that a Judicial Magistrate is obliged to remind the deponent or the person getting his confession recorded that the same is likely to be used in evidence, but there is no such requirement in the case of a dying declaration before the Executive Magistrate. This distinction being clear, the argument advanced by Sri Pandey to the effect that the Magistrate committed an error in not reciting the contents of the statement before certifying it is unacceptable. We are clearly supported on this issue by the ratio of the full Bench decision of the Bombay High Court in the case of Ganpat Bakramji Lad (supra) where this very issue was raised contending that if the Magistrate has not read the statement again before the declarant it cannot be accepted in evidence. The Full Bench answered it in the negative and we see no reason much less a legal reason to differ from the said statement of law.
Consequently, for all the aforesaid reasons, the argument of the learned counsel for the appellant that the dying declaration is unacceptable or inadmissible deserves rejection.
Learned counsel for the appellant has heavily relied on four judgments including that of Sher Singh (supra). We have gone through the said judgments, and we find that the correct legal position has been categorically dealt with long before by the Constitution Bench in the case of Laxman Singh Vs. State of Maharashtra AIR 2002 SC 2973 and which law has now been even categorically dealt with holding that even in cases of 100% burn injuries if the declaration inspires confidence the same has to be accepted. We have recorded our reasons herein-above that the dying declaration is intact and remains unimpeached either on account of any legal deficiency or even any procedural deficiency. Consequently, the judgments relied on by the learned counsel for the appellant do not come to his aid.
The third and the last submission of Sri Pandey also deserves deliberation namely that the defence had set up the hypothesis of a suicide having been committed by the deceased. For this, Sri Pandey has urged that the appellant Lallu Singh was away at his fields, and even the children who were present at home have not been examined. We have already noted that part of the dying declaration where the declarant herself has stated that her husband had threatened and driven away her children whereafter she had been set on fire. The alibi of being at the field at the time of the incident has not been proved by any evidence led by the defence. Even assuming for the sake of arguments that such a situation did exist then the appellant Lallu Singh being the father, and the appellant Heera Devi being the grand-mother could have attempted to bring the children into the witness box or any other defence witnesses in order to disprove or otherwise contradict the aforesaid version of the prosecution of the commission of the offence of murder, but no such attempt was made. The circumstance to the contrary which has been set up in the statement under Section 313 Cr.P.C. is that the deceased was frustrated on account of the entire money recovered from the sale of food-grains having been spent in meeting the loan dues of the tractor with no food-grain left for the family to survive. This story was also uncorroborated by any material, and Sri Pandey made an unsuccessful attempt to rely on the statement of the Investigating Officer namely PW-8 to justify the same. For the sake of the argument, we have also examined that part of the statement of Ram Pal Singh the Investigating Officer who has stated that when he went to the village, he heard from the villagers that the story was agog in the village about the deceased being frustrated on this count. In our opinion, this was completely hearsay material, and the Investigating Officer cannot be said to have any personal knowledge about the same. No person or villager came-forward in defence to substantiate the aforesaid plea nor any such material pertaining to the dissolution of the loan or the sale of the grain was brought on record, so as to establish the credibility of any such hypothesis. More so, the witnesses who turned hostile namely PW-1 and PW-4 have also not been able to substantiate the same.
In the aforesaid circumstances, such a denial coupled with hypothesis is a circumstance which militates against the appellants and not in their favour. Having dealt with the aforesaid part of the evidence and the story of the prosecution, we do not find any such material which may have been brought on record by the defence to even remotely suggest about there being any differences between the husband and wife or any dispute having arisen except for the recitals contained in the FIR itself. The FIR did recite that they were differences between the husband and the wife, but the defence did not proceed to take up any such plea on the aforesaid lines. We therefore, do not find any scope for carving out any doubt much less a reasonable doubt in the story of the prosecution.
The trial court therefore was fully justified in convicting the appellants with which we are in full agreement. The appeal therefore, lacks merit and is accordingly dismissed.
The appellant Lallu Singh is still in jail, and he shall serve out the sentence accordingly. The second appellant had been bailed out by this Court. Her bail bonds shall stand cancelled and she shall be taken into custody for serving out the sentence.
Order Date :- 30.7.2018 S.Chaurasia/M. Arif