Himachal Pradesh High Court
State Of Himachal Pradesh vs Sanjay Kumar & Another on 1 August, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 104 of 2012
Reserved on: July 29, 2016.
.
Decided on: August 01, 2016.
State of Himachal Pradesh ......Appellant.
Versus
Sanjay Kumar & another .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. P.M.Negi, Dy. Advocate General.
For the respondents: Mr. G.D.Verma, Sr. Advocate with Mr. Raju Ram Rahi,
Advocate.
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rt
Justice Rajiv Sharma, J.
This appeal is instituted at the instance of the State against the judgment dated 18.11.2011, rendered by the learned Addl.
Sessions Judge (FTC), Kangra at Dharamshala, H.P. in Sessions Trial No. 24/2011, RBT S.C. No. 85-P/VII/10/09, whereby the respondents-
accused (hereinafter referred to as accused), who were charged with and tried for offence punishable under Sections 306 and 498-A IPC read with Section 34 IPC, have been acquitted.
2. The case of the prosecution, in a nut shell, is that Rita Devi (since deceased) was married with accused Sanjay Kumar in the year 2004. Gaytari Devi was the mother-in-law of the deceased. It is alleged that after three years of marriage, the accused treated the deceased started torturing and administering beatings to her for want of dowry.
The accused tortured the deceased to such an extent which drove her 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 2to commit suicide. On 19.10.2008, Rita Devi poured kerosene oil upon her and set herself ablaze. She was shifted to CHC Thural from where .
police was informed and Rapat was lodged. PW-10 ASI Abhimanyu Sharma I.O. moved an application to MO for seeking opinion whether Rita Devi was fit to give her statement and she was found fit to give statement by the M.O. PW-10 ASI Abhimanyu Sharma recorded the of statement of deceased vide Ext. PW-10/A in the presence of PW-12 Raj Kumar, M.O. Thereafter, FIR was registered. The post mortem was got conducted. The I.O. prepared the spot map. He took into possession rt articles Ext. P-2 to P-8 i.e. burnt pieces of cotton, carton, bottle, match box, match sticks etc. These articles were sent for chemical examination. On completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 13 witnesses. The accused were also examined under Section 313 Cr.P.C. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. P.M. Negi, Dy. Advocate General, appearing on behalf of the State, has vehemently argued that the prosecution has proved the case against the accused persons. On the other hand, Mr. G.D.Verma, learned Sr. Advocate has supported the judgment of the trial Court dated 18.11.2011.
::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 35. We have heard learned counsel appearing for both the sides and have also gone through the judgment and records of the case .
carefully.
6. PW-2 Veena Devi is the mother of the deceased. Rita Devi was married with accused in the year 2004. One daughter was born out of the wed-lock. The accused used to work in Delhi at Petrol Pump.
of Accused Sanjay and Gaytari Devi used to give beatings to her daughter.
Three years ago, her daughter had shown her the injuries received by her by the beatings administered by the accused. On 19.10.2008, her rt husband was informed by the brother of the accused Sanjay through telephone that Rita Devi had committed suicide by pouring upon herself kerosene oil and set herself ablaze. Rita Devi committed suicide since she was tortured continuously by the accused. She deposed in her cross-examination that her daughter and accused Sanjay visited their house after marriage and before number of times. They have not lodged any complaint against the accused.
7. PW-3 Vivek Kumar is the brother of the deceased.
According to him, accused Sanjay used to give beatings to his sister and he also used to demand dowry from her. In the month of August, 2008, his sister came to their house and they saw injuries on her person. She told that injuries were caused by both the accused. His parents asked the deceased to go to her matrimonial home and she accordingly went. Accused Sanjay informed telephonically that Rita ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 4 was not taking meals then her parents along with relatives went to matrimonial home of his sister. She committed suicide on 19.10.2008.
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8. PW-4 Mehar Chand deposed that in his presence and Uttam Chand, police took into possession from the house of accused, burnt pieces of curtains, pieces of cover of quilt, cotton pieces, burnt match sticks etc. vide memo Ext. PW-4/A. of
9. PW-6 Uttam Chand deposed that Rita Devi was his niece.
She told him in the month of August that her husband and mother-in-
law used to give beatings to her and also used to harass and torture rt her. They used to demand money from her. He saw injuries on the hands of the deceased in the year 2008. He along with the parents of Rita Devi went to matrimonial house of Rita Devi. After one month, Rita Devi committed suicide.
10. PW-7 Sandho Devi deposed that Rita Devi was her niece.
She used to tell her that her husband and mother-in-law used to give beatings to her. They used to harass her and demand money from her.
11. PW-10 ASI Abhimanyu Sharma deposed that on 19.10.2008, rapat was lodged. He went to PHC Thural where Rita Devi was under treatment in a burn case. She gave statement to him in burnt condition in the presence of Dr. Raj Kumar. Rita Devi stopped speaking while he was recording her statement and on the statement thumb impression of her right thumb i.e. feet was taken because her hands were burnt, vide Ext. PW-10/A. Her statement was certified by ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 5 Dr. Raj Kumar. He moved an application vide Ext. PW-10/B and Rita Devi was found fit to give statement. From PHC Thural, Rita was .
referred to SDH, Palampur where she expired. He prepared the spot map. He also took into possession the case property. In his cross-
examination, he admitted that when he reached PHC Thural, Rita Devi was in serious condition due to burn injuries, but she was speaking.
of He denied the suggestion that when he reached the hospital, Rita was murmuring and was not in a position to talk properly. He could not read over Ext. PW-10/A to Rita Devi because her condition was serious rt and she was to be referred immediately to SDH, Palampur.
12. PW-11 Dr. Sumit Sood, has conducted the post mortem examination. According to him, she has sustained 100% Gr. II-II burn injuries. In his opinion, the deceased died due to cardio respiratory arrest secondary to neurogenic/hypovolumic shock secondary to ante mortem burns. The probable time that elapsed between injury and death was 4 to 18 hours and between death and post mortem was 10 hours. In his cross-examination, he deposed that he did not find any ink on the thumb of feet.
13. PW-12 Dr. Raj Kumar is the material witness. According to him, on 19.10.2008 at 11:15 PM, Rita Devi wife of Sanjay aged 24 years was brought to the hospital by the relatives with 100% burn case. The information was sent to the police. The patient was examined by him.
She was conscious, oriented to time, place and person. Local ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 6 examination of body revealed 100% burns. The superficial skin of body was wholly burnt. The police moved an application Ext. PW-10/B for .
issuance of MLC and about the fitness of the patient to make statement. He certified to the police that the patient was fit to give statement. The police recorded the statement of deceased in his presence. He gave certificate on statement Ext. PW-10/A. He issued of MLC Ext. PW-12/C. In his cross-examination, he deposed that the patient was speaking in her local dialect and what he understood is that she was saying "she was fed up with her husband and mother-in-
rt law". He also admitted that after recording statement, the same was read over to the deceased and then she accepted the same to be correct. Thereafter, right toe impression of Rita Devi (deceased) was taken on the statement as she was unable to sign or put thumb impression due to burn injuries.
14. The marriage between accused Sanjay Kumar and deceased was solemnized in the year 2004. Accused Sanjay Kumar was employed at Delhi. It has come in the statement of PW-2 Veena Devi that the accused used to beat her daughter. They were demanding dowry. She has also asked the accused to mend their ways.
The statement of PW-2 Veena Devi (mother of the prosecutrix) is corroborated by PW-3 Vivek Kumar, who is the brother of the deceased.
He also deposed that accused used to demand dowry and used to beat his sister. He has noticed injuries on the person of his sister. PW-6 ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 7 Uttam Chand and PW-7 Sandho Devi have also deposed that the accused used to demand dowry. They have seen injuries on the person .
of deceased.
15. PW-10 ASI Abhimanyu Sharma is the material witness. He reached the spot. He moved an application to Medical Officer as to whether deceased was fit to give her statement vide Ext. PW-10/B. of Thereafter, he recorded the statement of deceased vide Ext. PW-10/A. The statement was duly supported by Dr. Raj Kumar. He could not read over Ext. PW-10/A to Rita Devi because her condition was serious.
rt She was also referred to SDH, Palampur.
16. PW-12 Dr. Raj Kumar has deposed that the patient with 100% burn injuries was brought to him. The police moved an application Ext. PW-10/B for issuance of MLC and about the fitness of the patient making the statement. He certified to the police that the patient was fit to give statement. His certificate was encircled in red circle on application Ext. PW-10/B. The police recorded the statement of deceased in his presence. He gave certificate on Ext. PW-10/A. He has read over the statement Ext. PW-10/A to the deceased and thereafter she accepted the same to be correct.
17. There is no illegality in the statement Ext. PW-10/A. The doctor has duly certified that the deceased was in fit condition to give statement. Since her hands were burnt, she has put her right toe impression of foot on the statement.
::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 818. Mr. G.D.Verma, Sr. Advocate appearing for the accused .
has vehemently argued that PW-11 Dr. Sumit Sood, has not seen any ink impression on the toe of the foot of the deceased. There is time lapse when she made the statement Ext. PW-10/A and the post mortem was conducted. The possibility of the body being bath cannot be ruled out. The statements of PW-10 ASI Abhimanyu Sharma and of PW-12 Dr. Raj Kumar inspire confidence. The deceased was declared fit to give statement by PW-12 Dr. Raj Kumar.
19. rt Mr. G.D.Verma, Sr. Advocate appearing for the accused has also argued that there is delay in lodging the FIR. However, the fact of the matter is that the FIR has been registered within 24 hours.
The natural instinct of a person is to first look after the injured and then to set in motion the law by registering FIR.
20. The I.O. has also moved an application before the M.O. seeking his opinion whether the deceased was in fit condition to give her statement vide Ext. PW-10/B. PW-12 Dr. Raj Kumar has certified that the deceased was conscious, oriented to time and place and she was in a position to give any statement vide Ext. PW-12/A. Mr. G.D.Verma, Sr. Advocate has vehemently argued that the I.O. has noticed that the deceased has stopped speaking all of a sudden while recording her statement. It was a case of 100% burn injuries. In case of burn injuries, there are fluctuations in the condition of the patient by remaining in conscious and un-conscious stages, thus undue ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 9 importance cannot be given to the fact that she stopped speaking while recording her statement.
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21. Their lordships of the Hon'ble Supreme Court in the case of Abdul Sattar vs. The State of Mysore, reported in AIR 1956 SC 168, have held that in a murder case, in the dying declaration, even though the same was incomplete by reason of the deceased not being able to of answer further questions in his then condition, the statement so far as they went to implicate the accused in the affair were quite categoric in rt character and they definitely indicated that it was the accused who had shot the deceased. It has been held as follows:
"11. It was further urged on behalf of of the appellant that the dying declaration of the deceased was an incomplete document and, therefore, could not be used against him.
Reliance was placed on the observations of the Privy Council in -- Cyril Waugh v. The King', 54 Cal WN 503 at p. 507 (A), where their Lordships were of the opinion that "the dying declaration was inadmissible because, on its face, it was incomplete and no one could tell what the deceased was about to add" and also upon the observations of Mahajan, J., as he then was, in --'Ram Nath v. State of Madhya Pradesh', , that "it was not sate to convict an accused person merely on the evidence of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration".
We are of the opinion that these observations do not help the appellant at all. In the dying declaration before us, even though the same was incomplete by reason of the deceased not being able to answer further questions in his then condition, the statement so far as they went to implicate the accused No. 1 in the affair were quite categoric in character and they definitely indicated that it was the accused No. 1 who had shot the deceased.
::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 10There was no question of any incomplete statement so far as that aspect of the case was concerned. The statement in regard to the accused No. 1 having shot the deceased was complete in itself and .
it could not be said that any further questions would have elicited any information which would run counter to the same. Under the circumstances, the dying declaration, though incomplete otherwise, was complete so far as the accused No. 1 having shot the deceased was concerned and could certainly be relied upon by the prosecution.
There was further the corroboration of the dying declaration in the evidence of Range Gowda, P.W. 20 and of P.Ws. 14, 15 and 16 of and such corroboration invested the dying declaration with a stamp of truth which went a long way towards inculpating the accused No. 1."
22. Their lordships of the Hon'ble Supreme Court in the case of rt Muniappan vs. State of Madras, reported in AIR 1962 SC 1252, have held that where the dying declaration of the deceased recorded at the police station was a complete statement in that it made a clear accusation against the accused having stabbed the deceased and there was nothing to show that the maker of the statement had anything further to add but the dying declaration was not complete in the sense that on account of sudden collapse of the deceased his thumb impression to the statement was taken only after his death in the presence of witnesses. Their lordships have further held that the dying declaration was admissible in evidence even without corroboration. It has been held as follows:
"6. The dying declaration in the present case was as follows :
"Sir, This day 24th January, 1960, in the noon at 12.30 Muniappan, son of Kola Goundan of Kannankurichi stabbed me in my body with knife.
Soon after he said these words, his speech stopped. His life was gone.::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 11
(Left thumb impression of) Elumalai witnesses :
1. (Signed in Tamil) Muthuswami Udayar.
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2. (Signed) K. R. Perumal.
3. (Signed in Tamil) C. Kannan.
4. (Left thumb impression of) Kundaswami.
24th January, 1960. (Signed) S. A. Amir Sub-Inspector.
7. Here, the accusation against the appellant was complete, and there is of nothing to show that Elumalai wished to say anything more or that he had anything more to add. In so far as the dying declaration, goes, it is a complete statement, and makes a very clear accusation against the appellant. If this dying declaration is taken into account, then it hardly needs corroboration in view of the decision of this Court in Khushal Rao rt v. State of Bombay ([1958] S.C.R. 552). The Privy Council case, therefore, is clearly distinguishable on facts and does not apply to the dying declaration with which we have to deal. The Privy Council case was considered by this Court inAbdul Sattar v. Mysore State (A.I.R. (1956) S.C. 168), where also the dying declaration was incomplete but was quite categoric in character and definitely indicated that it was the accused in that case who had shot the deceased. The dying declaration was, therefore, acted upon. The learned counsel for the appellant attempted to distinguish Abdul Sattar's case (A. I. R. (1956) S. C. 168) on the ground that in that case there was corroboration of the dying declaration and contended that an incomplete dying declaration, if categoric in character, may be acted upon if corroborated but not if not so corroborated. In our opinion, corroboration would not always be necessary if the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. That is the case here. In this case, however, there is some other evidence to incriminate the accused. The injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. That knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as belonging to the knife by the shopkeeper who had the day previous sold the knife and the sheath to the appellant Muniappan. There is also the conduct of the appellant in surrendering himself to the police at 12.40 p. m. that is to say, within ten minutes of the occurrence. The appellant had an injury on his thumb which he apparently got in attempting to stab Elumalai. The injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck Elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. There is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police. There was also corroboration in the shape of a dying declaration made by Elumalai to ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 12 the first prosecution witness Muthuswami when he reached the spot after Elumalai had raised a cry for help."
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23. Their lordships of the Hon'ble Supreme Court in the case of Kusa and others vs. State of Orissa, reported in AIR 1980 SC 559, have held that when all necessary questions asked by the doctor to deceased and last question as to 'what more deceased wanted to say' could not be answered as he became semi-unconscious. The last of question was held to be in the nature of formality. It has been held as follows:
rt "8. We are unable to place any reliance on these observations in absence of any question put to the doctor by the accused in his cross-
examination regarding the view expressed by the author regarding the state of mind of the deceased. It has been held by this Court in several cases that whenever a particular view taken by authors of medical jurisprudence is adumbrated, the same must be put to the doctor to assess how far the view taken by the experts apply to the facts of the particular case. On the other hand, the last certificate given by the doctor towards the end of the dying declaration that the patient became semi-unconscious clearly shows that the deceased was, fully conscious when he started making the dying declaration before the doctor. For these reasons therefore, the first ground taken by the appellant fails and is not tenable. As to the second ground, namely that the dying declaration was incomplete, we are unable to accept this contention because we find that the deceased Antarjami could not answer the last question which was "what more you want to say" because he became semi-unconscious and was unable to answer any further question. A perusal of the entire dying declaration would clearly show that the doctor had asked all the necessary questions that could be asked from the deceased and the last question was merely in the nature of a formality. It is obvious that having narrated the full story there was nothing more that the deceased could add. We are therefore unable to hold that the present dying declaration is an incomplete one. Reliance was placed by the counsel for the appellant in the case of Cyril Waugh v. The King,(1)wherein it was held that no reliance could be placed where a dying declaration was incomplete. Reference to the facts of the case would show that the statement made by the deceased was really incomplete in as much as the deceased was unable to complete the main sentence where he was trying to describe the genesis and motive of the occurrence. The deceased in that case stated as "when he fired the short, he missed the other man. The man has an old grudge for me simply because.. ". It is clear from the statement of the deceased in that case that the deceased wanted to give the motive for the occurrence and other relevant facts which he could not say before the dying declaration ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 13 was closed. This case therefore would have no application to the facts of the case."
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24. In the present case also, the deceased being a case of 100% burn injuries was fluctuating between consciousness and un- consciousness and was declared fit to give statement by PW-12 Dr. Raj Kumar at the time of making statement. The dying declaration has clearly implicated the accused in the commission of offence.
of
25. Their lordships of the Hon'ble Supreme Court in the case of Padmaben Shamalbhai Patel vs. State of Gujarat, reported in rt (1991) 1 SCC 744, in a case of 90% burn injuries, have held that since the doctor deposed that the deceased was in fit state of mind and was able to speak albeit with difficulty when she spoke to them though soon thereafter her condition deteriorated and she was unable to speak, the testimony of the doctors about fitness of deceased as supported by the documentary evidence could not be discarded merely because the deceased was severely burnt and her condition was poor at the time she spoke to the doctors. It has been held as follows:
"7. The evidence on record shows that the marriage had taken place hardly three months before the incident. Even on the appellant's own showing her relations with the deceased were not strained. The appellant is the only sister of the husband of the deceased. The word 'nanad' means the husband's sister. Therefore, when the deceased told PW 5 Dr. Solanki that her 'nanad' had set her on the fire, she meant the appellant and none else. The evidence of nurse PW 4 Pankajben corroborates the evidence of Dr. Solanki. Both these witness have deposed that the deceased was in a fit state of mind and was able to speak, elbeit with difficulty. If there was any doubt on the question of identity it was cleared by PW 2, Dr. Suresh Ambvani to whom the deceased gave the name of her tormentor as padma. The learned Sessions Judge, also came to the conclusion that notwithstanding the extensive burns the patient was conscious and was able to speak at the ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 14 time she made the dying declarations. Her condition soon deteriorated and by 2.45 p.m. she was not in a position to make any statement to the police as recorded by PW 2 Dr. Ambvani on the police 'yadi'. Dr. Ambvani had,however, recorded what the patient had told him.
.
Therefore, besides the oral evidence of two medical-men there are contemporaneous documents which go to show that the deceased made the statements in question. Even the learned Sessions Judge did not doubt the correctness of truth of what both the medical-men deposed but in his view the deceased was not mentally fit when she named the appellant.
8. It is well-settled by a catena of cases that a dying declaration is admissible in evidence on the principle of necessity and can form the of basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross- rt examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence--neither extra strong nor weak--and can be acted upon without corroboration if it is found to be otherwise true and reliable. In the present case there can be no doubt that the deceased had an opportunity to see her tormentor as the incident happened in broad day light. Since the incident occurred in the early hours of the day there was the possibility of a family member being involved. There being no dispute that death was homicidal, the question is who did it? As no relative from the side of her parents was present, the possibility of tutoring by them must be ruled out. The theory that her husband prompted her to name the appellant because his relations with the appellant were strained must be brushed aside as devoid of merit. Except the appellant's statement in this behalf, there is no other evidence--no such foundation was laid in the cross- examination of the investigating officers. Since it is conceded that the appellant's relations with the deceased were not bad, it is difficult to understand why the latter should falsely involved her, assuming her husband did prompt her, and allow her real tormentor to escape. Since the appellant is the only sister of her husband, there remains no doubt about the identity of the 'nanad' (husband's sister or sister-in-law). Doubt, if any, is removed by PW 2 Dr. Ambvani's evidence to whom she disclosed the name `Padma'. Both the medical-men were conscious about her condition and, therefore, they would not have attached any ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 15 importance to her statement if they had any doubt about her mental capacity. Even Mr. Mehta had to concede that he was not in a position to say that the two medical-men were motivated in giving false evidence.
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10. Mr. Mehta then submitted that having regard to the fact that the victim had 90% burns and her general condition was poor, it would be hazardous to hold that her statements to the two medical-men were true. He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk. We do not think there is any merit in this submission. In Suresh v. State of M.P., [1987] 2 SCC 32 this Court was required to deal with a more or less similar situation. In that case the victim had sustained 100% burns of the second degree and of her dying declaration was recorded by Dr. Bhargava in the hospital. Dr. Bhargava had deposed that the victim was in a fit state of health. The evidence, however,disclosed that while Dr. Bhargave was recording her statement the victim had started going into a coma. Yet this Court accepted the dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that she had suffered 90% burns and her rt general condition was poor is no reason to discard the testimony of both of medical-men when they say that she was in a fit state of mind and was able to make the dying declaration in question."
26. The Division Bench of the Bombay High Court in the case of Vithal Sadashiv Gaikwad vs. Stat of Maharashtra, reported in 1994 Cri. L.J. 2035, has held that when patient suffers 100% burn injuries but is fully conscious, the veracity of dying declaration cannot be doubted.
27. The Division Bench of the Gujarat High Court in the case of Ramesh Kumar Moraji Marwadi vs. State of Gujarat, reported in 1998 Cri. L.J. 2697, has held that the deceased could not be said not to be in fit state of mind merely because his general condition was poor or that degree of burns was high. It has been held as follows:
9. The deceased died of burns having poured kerosene on himself as alleged by defence. The place of incident is shown by the prosecution to be at the terrace. In the Panchnama, no kerosene much less, its smell is found from the terrace. No container of kerosene is also found from the terrace. According to the defence deceased was a smoker and as per Panchnama stubs of bidies and some matchsticks are also found from ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 16 the terrace. Therefore, find of matchstick by itself is not a circumstance whereby it can be said that he ignited himself. A person who commits suicide will not bother to safely place all the articles whereby he commits suicide. In the instant case, when container is not found, it is .
surprising as to how he poured kerosene, from where he poured kerosene and why he poured and selected the terrace. Admittedly, this is the place which can be said to be in possession of Or jointly possessed by the accused. Another surprising circumstance is that shoes are found at the terrace. They are alleged to be of the deceased, yet it also does not contain either any kerosene or smell thereof. No doubt a quilt by which the deceased was covered had a smell of kerosene. In the Panchnama of the room of the accused a tin of kerosene was found which contained about one litre of kerosene but in that room also no kerosene is found from the floor or any other place or any other part of the room. Thus, in of our opinion, the circumstance on record suggests mat it is not a case of suicide.
16. When history is given by the patient to the Doctor, sister of the accused (who also happens to be the wife of the deceased) was present rt with him. Though the police has recorded her statement, she is not examined as a witness. What earthly reason would the patient have to involve his brother-in-law, if according to the defence, he was not the person who has committed the alleged act, more particularly, when the sister of the accused is present at that time. Mr. Barot Contended that when patient went to fetch his wife in the evening at about 9.00 a.m. she was not allowed to go with him and therefore the patient had gone again after midnight. This act of refusal to send his own wife with him might have been taken by the patient as an insult and with a view to take revenge he might have gone at midnight again and might have immolated himself. This suggestion of Mr. Barot does not appear to be a reasonable one particularly in absence of material used for the purpose of burning, in particular, kerosene at the terrace. Mr. Barot further contended that if kerosene was sprinkled by the accused then neither kerosene nor anything is found from the terrace or any other place. In the instant case, we are at pains to say that the actual place of incident on terrace is not located. The alleged place of incident as per PW. 8 - Ganeshbhai is on terrace and is shown by Bai Shanta - the wife of the deceased. Bai Shanta is not an eye-witness even according to the prosecution or the defence. However, place of incidence is not disputed by defence. When Bai Shanta is not an eye-witness and does not know where the incident took place, she has shown terrace as scene of offence which is not disputed by defence. Unfortunately, the police has not taken care to find out the exact place on terrace. The police had searched the room where the accused resides and found a tin of kerosene,: however the Panchnama of that room is not prepared. In our opinion, this does not affect; adversely the case of the prosecution. In our; view, the allegation of the defence is that the deceased has committed suicide, but as discussed; above we have ruled out the theory of suicide. Wei may add one more circumstance that, as the Doctors generally say, in case of suicide, sole of the victim would normally never get burnt. In the, instant case both the soles of the deceased are burnt and it rules out the theory of suicide. We do not find any reason from ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 17 the record which would suggest that the deceased had any reason worth the name to involve the accused wrongly. When there is nothing on record to show that the history given by the victim to the Doctor is not reliable and truthful, there is no reason not to accept the same and bas,e .
conviction thereon. The patient has not only told this history to the Doctor but he has also so stated before the Constable on duty in the hospital PW. 4 Prahladsing Ramsing. He also states that when he asked the patient as to how he' received burns he has replied that: "My brother-in-law Rameshbhai has burnt me by pouring kerosene. I am burnt on the third floor at the terrace. The deceased was on the third floor at the terrace as stated by PW. 8 Ganeshbhai whose evidence to that extent at least can be accepted. From the evidence of Prahladsing Ramsing PW. 4, it can be said that the victim was in a fit state of mind. Thus, when there is nothing on record to reject the statement of the of victim before Doctor as well as Constable on duty and when the same is reliable and truthful, there is no reason to interfere with the findings and conclusions arrived at and the order passed by the learned Addl. Sessions Judge. It is settled law that Dying Declaration alone if found reliable and truthful can be the basis for conviction. Mr. Raval, learned rt A.P.P. has contended before us that irrespective of degree of burns and general condition being poor when the Doctors have said that the patient was in a fit state of mind or from the evidence of the Doctor it can be inferred that he was in a fit state of mind, the patient should be considered and accepted to be in a fit state of mind. To substantiate this contention, he has relied on the judgment in the case of Padmaben Shamalbhai Patel v. State of Gujarat (1991) 1 SCC 744. The relevant observation at paragraph 10 reads as under:
"10. Mr. Mehta then submitted that having regard to the fact that the victim had 90 per cent burns and her general condition was poor, it would be hazardous to hold that her statements to the two medical men were true. He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk. We do not think there is any merit in this submission. In Suresh v. State of M. P. this Court was required to deal with a more or less similar situation. In that case the victim had sustained 100 per cent burns of the second degree and her dying declaration was recorded by Dr. Bhargava in the hospital. Dr. Bhargava had deposed that the victim was in a fit state of health. The evidence, however, disclosed that while Dr. Bhargava was recording her statement the victim had started going into coma. Yet this Court accepted the dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that she had suffered 90 per cent burns and her general condition was poor is no reason to discard the testimony of both the medical men when they say that she was in a fit state of mind and was able to make the dying declaration in question."
17. In view of the above discussion, we do not find any reason to interfere with the order of conviction recorded by the learned Addl. Sessions Judge. The appeal, is therefore, liable to be dismissed and is hereby dismissed."
::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 1828. The Division Bench of the Rajasthan High Court in the case of Hans Raj and others vs. State of Rajasthan, reported in .
1995 Cri. L. J. 1004, has held that fact that the deceased had 100% burn injuries of second degree and third degree, it was not sufficient to presume that the deceased was not physically and mentally fit to give statement. It has been held as follows:
of "[25] In view of the aforesaid facts and circumstances it can never be presumed that simply because the deceased had hundred percent burns injuries of second degree and third degree therefore, it must be presumed that deceased was not physically and mentally fit to give statement. Our rt aforesaid view is fortified from a decision of the Apex Court in Suresh v. State of ML P. 1981 Cri LJ 775 : AIR 1987 SC
860. In that case, deceased had got hundred percent burns of second degree. Their Lordships believed the statement of doctor, who recorded the dying declaration of the deceased.
The statement of the doctor was believed in the aforesaid case by their Lordships that the deceased after receiving hundred percent burn injuries was in a fit state of health to make a declaration. The dying declaration was believed in that case although doctor had stated that when she was recording the dying declaration, the deceased had started going into coma. In that case, the dying declaration was recorded by the doctor hereself but in the instant case, the dying declaration has been recorded by the learned Judl.
Magistrate PW 8 Shri Lalit Mohan, who has no interest in success or failure of the prosecution. The preponderance of the cases leads towards an irresistible conclusion that the dying declarations recorded by the learned Magistrates are ordinarily taken to be impartial and above suspicion unless some compelling reasons are brought to the notice of the Court. In the present case, nothing has been brought to our notice that the dying declaration Ex. D/3 recorded by the learned Magistrate PW 8 Shri Lalit Mohan suffers from any infirmity. Thus we are of the opinion that the learned Sessions Judge has not committed any error in appreciating the dying declaration Ex. D/3 and recording a finding of guilt against the accused-appellants on the basis of Ex. D/3 and a contention contrary to it raised before us is untenable."
::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 1929. Their lordships of the Hon'ble Supreme Court in the case of .
Rambai vs. State of Chhattisgarh, reported in (2002) 8 SCC 83, have held that in a case where the victim suffered 85% burn injuries and doctor gave certificate about mental fitness of the injured to make the statement, it was not possible to accept the submission that it of would be unsafe to place reliance on the dying declaration if its contents were examined in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission rt into the hospital she was alternating between consciousness and unconsciousness. It has been held as follows:
"6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi(Smt.) vs. Om Prakash and ors., (2001 (6) SCC 118), it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission to the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration.::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 20
We have carefully perused the evidence of PWs.12 and 19 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit .
condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe to rely of upon DW.2. In such a situation we are unable to take a contra view from the one taken by the courts below."
30. Their lordships of the Hon'ble Supreme Court in the case of rt State of Karnataka vs. Shariff, reported in (2003) 2 SCC 473, have held that dying declaration could not necessarily be recorded by a Magistrate. The statement of deceased recorded by police personnel in hospital, though a Magistrate could have been called to record the same, itself is not sufficient to discard the dying declaration if the same is found to be otherwise trustworthy. In this case also, the victim suffered 87% burn injuries. It has been held as follows:
"16. The other important piece of evidence against the accused is that of dying declarations and the most important one is that which was made by her to PW 12 Dr. KM Nagbhushan, Assistant Surgeon in the Victoria Hospital, Bangalore. He was the first doctor to examine her when she reached there at 9.30 a.m. The witness has clearly stated that the deceased gave her own statement with regard to the history and stated that she sustained burn injuries when her husband poured kerosene and set her on fire on the same day at 4.00 a.m. He recorded all these facts in the Accident Register and relevant extract of the same has been brought on record and has been proved by him as Ex. P.12. There is absolutely no reason to discard the testimony of PW 12, who is a responsible government servant. The other two dying declarations were recorded by PW 11 BK Krishnappa ASI Victoria Police Station on July 24, 1986 and by PW 14 Kumar Swamy, PSI Anekal Police Station on July 26, 1986. These are fairly long dying declarations where she gave the background of the incident and also stated the fact that the accused picked up a quarrel in the morning of July 24, 1986 and ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 21 thereafter after pouring kerosene set her on fire. These two dying declarations were recorded in the presence of PW 5 Dr. Rangarajan who was Assistant Surgeon in the Victoria Hospital at the relevant time. He made an endorsement that the dying declaration was recorded in his .
presence and thereafter he put his signature on the same. He has made a categorical statement that at the time when the statement of the deceased was being recorded on both the occasions, she was conscious and was in a fit condition to make a statement. In our opinion the aforesaid three dying declarations are wholly trustworthy and there is absolutely no reason at all to discard the same. Though PW 2 Syed Akbar and PW 6 Abdul Razak, who reached the spot in the village immediately after the occurrence, have also stated in their statements that the deceased told them that it was the accused who had set fire to her and their testimony in our opinion is trustworthy, but even if we do of not take into consideration the aforesaid oral dying declaration of the deceased, the three dying declarations referred to above, are quite sufficient to fasten the liability upon the accused.
21. It is true that PW 11 and PW 14 were Police personnel and a Magistrate could have been called to the hospital to record the dying rt declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana AIR 1997 SC 234 on receiving message from the hospital that a person with gun shot injuries had been admitted a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja & Anr. v. State of Madhya Pradesh 1976 (2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way of First Information Report, which was recorded in writing, was held to be admissible in evidence."
31. The Division Bench of the Karnataka High Court in the case of Sri Kumar alias B.A. Jayakumar vs. State of Karnataka, reported in 2003 Cri. L. J. 252, has held that though condition of deceased was precarious because of 100% burns, she was mentally fit and in clear state of mind to make correct and cogent statement. It has been held as follows:
"3. The appellant's learned Advocate started by pointing out to us that this was a case in which Laxmi was found with her clothes blazing and by the time the fire was extinguished that she had sustained virtually 100% burns. The learned Counsel submitted that there are indications ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 22 from the evidence of P.W. 10, from the evidence of the doctor, from the evidence of the sister Rathna and her mother Muniyamma that even her face had been burnt and what is emphasised is the fact with this degree and level of burns that even when Laxmi was brought to the hospital her .
condition was precarious. There are entries to this effect in the case papers and the learned Counsel submits that it would have been totally and completely impossible for Laxmi to have either spoken to the doctor or given any case history and that as has now been routine that since she was taken to the hospital by the Head Constable that he must have told the doctor that she was burnt by the husband and that this is what has been taken down. Furthermore, from the fact that Laxmi did not even survive in the hospital for a few hours. What is further pointed out to us is that she was virtually hanging between life and death during that period of time and that with every hour that passed she was of virtually sinking. The dying declaration is supposed to have been recorded sometime around 9 PM and the learned Counsel submits that this was hardly 3 to 4 hours before Laxmi died; that the doctors have admitted that she was given sedatives and tranquilizers and that consequently, it is totally and completely impossible for the Court to rt accept the prosecution version that she was in a fit condition mentally and physically to make a valid dying declaration. Our attention was drawn to the fact that even though the doctor has endorsed the dying declaration to the effect that it was recorded before him that the dying declaration does not contain the most important endorsement namely the certificate from the doctor that the patient was in a fit condition to understand questions and give rational and cogent answers. It is true that a perusal of this dying declaration does indicate to us that it does not contain the certificate from the doctor in this form. The Supreme Court has further clarified the legal position in more than one judgment laying down that in a given case if there is sufficient evidence before the Court to indicate that the dying declaration is a valid and genuine document and that it reflects the true, correct and complete statement made by the deceased that the mere omission to obtain the fitness certificate from the doctor is not a fatal infirmity. In the present case however, there are two aspects which the learned Addl. S.P.P. has very vehemently laid emphasis on. Firstly, he points out that the doctor who is P.W. 1 has in no uncertain terms stated that Head Constable Srinivas sought his permission to record the dying declaration and that he accorded the permission because Laxmi was in a fit condition to make a statement. He has been seriously grilled by the defence and he has withstood the cross-examination in the course of which he has in terms stated that he was present right through the recording of the statement and that her mental condition was perfectly stable and furthermore that she was in a fit condition to understood the questions put to her and to give the answers and that she in fact did so. We then have the evidence of Head Constable Srinivas who is the scribe of the dying declaration and he has given evidence in identical terms. He points out that he had put the questions to Laxmi, that she answered the questions without any difficulty and that the dying declaration recorded by him represents Laxmi's statement. What we need to point out in this case is that the fitness certificate which was perhaps technically lacking on the original dying declaration has been more than completely established and ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 23 strangely enough, the majority of these answers have been elicited in the course of cross-examination. We have no hesitation whatsoever in holding that even though Laxmi's condition was precarious because of the 100% burns that she was still in a mentally fit and clear state of .
mind around 10 to 10.15 PM on that night to make a correct and cogent statement. Under these circumstances, in our considered view, Ex.P-2 which has been seriously attacked by the defence will have to be accepted.
4. It was pointed out to us that Ex. P-2 is a long statement virtually covering two full pages and that it is too much to believe that Laxmi who was very close to her end at that point of time could have been in a position to recount all this history when questions were put to her. It is of true that the doctor was confronted with the position that she had been administered pain killers and sedatives but the doctor has still maintained that despite these medications that the patient was still in a fit condition. Speaking for ourselves all that we need to observe is that the doctor whose credibility we have no reason to doubt has given evidence and his evidence has withstood cross-examination and rt secondly that the Courts have come across numerous instances where as a result of the treatment meted out in the hospital particularly after pain killers and sedatives are administered that for some period of time the condition of the patient stabilises even if there is a sudden collapse thereafter. It appears from the case papers that Laxmi did survive till 5AM the next morning but the number of hours or the time factor is not the parameter in so far as the Court is always guided by the evidence of the medical persons namely the doctor."
32. In the instant case, the deceased in her statement vide Ext.
PW-10/A, has categorically stated that her husband and mother-in-law had forced her to commit suicide. They used to harass her time and again. She has committed suicide by putting kerosene oil on her. She was 24 years old and she could not sign since her hands were burnt but thumb impression of right feet was obtained on Ext. PW-10/A. The learned trial Court has erred in law by discarding dying declaration Ext. PW-10/A. The deceased was harassed and tortured which compelled her to commit suicide on 19.10.2008. The accused have abetted and instigated the deceased to commit suicide. They have caused her physical and mental cruelty by demanding dowry. The ::: Downloaded on - 15/04/2017 20:56:02 :::HCHP 24 deceased has died on 19.10.2008 and before that she has complained of the beatings given to her by the accused. Merely that the deceased .
has not taken food for few days would not make her sensitive lady, as observed by the learned trial Court. She might be upset due to illegal demand of dowry and beatings of the accused, repeatedly. The evidence led by the prosecution is cogent, reliable and trustworthy.
of The prosecution has proved the case against the accused under Sections 306, 498-A IPC read with Section 34 IPC.
33. rt Accordingly, the appeal is allowed. Judgment of the learned trial Court dated 18.11.2011 is set aside. The accused are convicted under Sections 306, 498-A IPC read with Section 34 IPC.
They be heard on quantum of sentence on 5.8.2016. Production warrants be issued accordingly.
( Rajiv Sharma ), Judge.
August 01, 2016, ( Sureshwar Thakur ),
(karan) Judge.
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