Himachal Pradesh High Court
Ramesh Chand vs State Of Himachal Pradesh on 25 May, 2002
Equivalent citations: 2002CRILJ3949
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This appeal has been preferred by the accused convict against his conviction and sentence under Section 302 of the Indian Penal Code. He is accused of pouring kerosine oil on the Smt. Bholi Devi and setting her ablaze on 17-5-1999 as a consequence whereof she died on 18-5-1999. The defence of the accused is that Sidhu alias Mohinder, husband of the deceased, is a notorious criminal and deals in the distillation and sale of illicit liquor and the police officials of Police Post, Nagrota Surian, where the report was lodged, are helping Sidhu in his work of illicit distillation whereas the accused had been objected to it. Therefore, he has been falsely implicated in the case.
2. During the course of hearing of this appeal when the learned counsel for the appellant was reading statement of Head Constable Parma Nand (PW-15), who partially investigated the case, a doubt arose about the correct recording of the English version of his statement to the following effect:
It is incorrect to suggest that I am also getting 'HAFTA' from PW Mohinder Singh. It is incorrect that the case which I investigated against him in connection with illicit liquor were framed against him so that it could be shown that we are condoning the illicit distillation in which he indulges.
3. To find out whether the aforesaid English translation of the statement of the witness is correct or not we perused Hindi version of his statement and found that English translation of his statement is not correct. In these circumstances, to ensure that there may not be other mistakes in the English translation we compared the English translation of the statements with the Hindi version and found some discrepancies in such translation.
4. While dealing with such a situation one of us (R.L. Khurana, J.) in Vijander Singh v. State of H.P. (1999) 2 Shim LC 171 and the other (M.R. Verma, J.) in Harish Kumar v. State of H.P. (2001) 1 Shim LC 281, had held that for all the Subordinate Courts in the State of Himachal Pradesh the language of the Court is Hindi in 'Devnagri' script, therefore, in case of variance in the vernacular version in which the witness has made the statement and which is read over to him and acknowledged by him has to be given primacy over the English version. We, therefore, wanted to take into account the Hindi version but it was found that the statement of the witnesses which have been recorded in Hindi have not been signed by the learned trial Judge nor do they bear the certificates to the effect that such statements were read over to the concerned witnesses and were acknowledged by them. It was also noticed that the trial Court has not maintained the Hindi version of the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereafter referred to as 'the new Code'). It is not in dispute that but for the two Medical Officers (PW-8 and PW-9) all other witnesses and the accused had made their statements in Hindi, the official language of the trial Court.
5. Against the aforesaid background, the question arose as to what is the effect of the evidence/vernacular version of the statements having remained unsigned by the learned trial Judge.
6. We have heard the learned counsel for the accused and the learned Assistant Advocate General for the State on the aforesaid question.
7. The provisions of Sections 272 to 283 of the new Code deal with the mode of taking and recording prosecution evidence and the statement of the accused under Section 313 of the new Code. The relevant Sections for the determination of the present question are Sections 272, 276, 277, 278 and 281 of the new Code which provide the manner of recording evidence and statement of the accused in a sessions trial. Section 272 empowers the State Government to determine the language of the Courts in the State other than the High Court. Section 276 deals with the recording of evidence in a trial before a Court of Session and provides that in all trials before a Court of Session, the evidence of each witness shall be taken down in writing by the presiding Judge or on his dictation in the open Court under his direction and superintendence and the evidence so taken down shall be signed by the presiding Judge and shall form part of the record. Section 277 of the new Code provides that if the witness gives evidence in the language of the Court it shall be taken down in that language and if he gives evidence in any other language it may be taken down, if practicable, in that language, otherwise a true translation of the evidence in the language of the Court shall be prepared and signed by the presiding Judge and shall form part of the record. Section 278 of the new Code provides that when the evidence of the witness is complete it shall be read over to the witness and if the witness denies the correctness of any part of the evidence when read over to him it may be corrected or instead of correcting the evidence a memorandum thereon of the objection raised by the witness be made and the necessary remarks be added thereto. Section 281 of the new Code provides that every question put to the accused and every answer given by him in his statement under Section 313 of the new Code shall be recorded in full by the presiding Judge or under his direction and superintendence by an officer of the Court appointed in this behalf and such record shall, if practicable, be in the language in which the accused is examined or in the alternative in the language of the Court and such record shall be shown or read over to the accused and shall be signed by the accused and the presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and contains a full and true account of the statement made by the accused. It is, thus, evident that object of these provisions is to maintain an accurate and authentic record of the evidence and statement of the accused.
8. As already stated hereinabove, the language of the Subordinate Courts in Himachal Pradesh is Hindi. There is no dispute that the witnesses (other than PW-8 and PW-9) and the accused made their statements in Hindi. However, the statements of the witnesses, as placed on the record of the Hindi version, are not signed by the learned trial Judge nor do they bear the certificate that these were read over to and acknowledged by the respective witnesses. In so far as the Hindi record of the statement of the accused is concerned, that is not maintained at all. Thus, evidently there had been non-compliance of the provisions of Sections 276, 277, 278 and 281 of the new Code.
9. In Janki Prasad v. Emperor (1918) 53 IC 827, Patna High Court, while dealing with the effect of non-compliance of the provisions of Section 356 of Criminal Procedure Code, 1898 (hereafter referred to as 'the old Code') which in substance are similar to the provisions of Section 276 of the new Code held as under :
The direction in Section 356 appears to me to be mandatory as also the directions in Section 360 of the Code of Criminal Procedure. The non-compliance with the requirements of this Section would, therefore, not only be an irregularity but an illegality which would vitiate the trial. This was the view taken in the case of Khettromony Dasi v. Sreenath Sircar (1) Queen Empress v. Barmajit (2), Jyotish Chandra Mukerjee v. Emperor 1909 Cri LJ 581 (Cal) (3) and Sadananda Mandal v. Krista Mandal (4).
The principle of the last ruling, though under Section 360, applies to a violation of Section 356. Even if it was an irregularity, it was so grave and material that it cannot be cured by Section 537. I, therefore, set aside the conviction and direct that the case be re-tried according to law.
10. In Jyotish Chandra Mukerjee v. Emperor (1909) 10 Cri LJ 581, a Division Bench of Calcutta High Court while dealing with the effect of lapse of reading over the statement to the witness, as required under Section 360 of the old Code (new Section 278 of the new Code) held as under :
There is one further point to which I would draw attention and it is a matter of procedure in regard to the reading over of depositions as required by Section 360 of the Criminal Procedure Code. In the course of the trial, Mr. Morton on behalf of the Crown asked that the evidence given by a witness should be read over to him in the presence of the accused or his pleader as provided by Section 360. To this the learned Judge replied that it would involve a great waste of time. He then said "the Section seems to me directory and not obligatory. If the witness detects a mistake, he can come back and say so. This is the universal practice in Sessions Courts, my experience extending to about six such Courts. Optimaest legum interpres consuetudo." I do not agree with this view, for the custom indicated by the learned Judge cannot alter the plain words of the Act. Mr. Morton's application was right, and if, as has been represented to us, that Section is disregarded in practice, then I have no hesitation in saying that the practice is erroneous. It has not interfered with our disposal of this case, because we are able to hold, in the special circumstances, that the omission is not fatal. But such a departure from the terms of the Criminal Procedure Code might lead to considerable embarrassment, and place a serious impediment in the proper administration of justice; for there are cases in which it has been held that for the purposes of a prosecution on the ground of perjury, depositions to which the procedure laid down in Section 360 has not been applied, cannot be properly used. I, therefore, trust that, if the practice exists, it will be discontinued in deference to the clear direction of Section 360 of the Criminal Procedure Code.
11. In Natho Khan v. Emperor AIR 1932 Sind 145 : 1933 (34) Cri LJ 216 while dealing with the non-compliance of the provisions of Section 356 of the old Code, which applied to the Magisterial Courts as well as to the Sessions Court and in substance are identical to Section 276 of the new Code, it was held as under :
Inquiries under Ch. 12 are governed by Section 356, Criminal P.C. The Magistrate is bound to record evidence in the manner prescribed by that Section. It has been held in Sadananda Mandal v. Krishna Mandal (1) and elsewere that the provisions of this Section are imperative. Where the Magistrate omitted to record evidence in the mode prescribed by this Section, it was held there was a material error sufficient to set aside the proceedings. Now there is no doubt that proceedings under Section 145 of the Code are enquiries under Ch. 12. It is clear therefore that under Section 356(1) evidence of each witness should have been taken down in writing in the vernacular by the Magistrate himself or in his presence and hearing and under his personal direction. This record should have been signed by him. Now in the present case the learned Magistrate has kept a record of the evidence in English only. He has in fact recorded the evidence in so much that his memorandum has very much the appearance of a verbatim record. Nevertheless this record is in English and not in the vernacular. It must therefore be conceded that there has been no complete compliance with the requirements of Section 356. This concession is in fact made by the learned public prosecutor who appears to support the order. He argues however that the bare fact of such an omission as has occurred in the present case unaccompanied by any probable suggestion of any failure of justice thereby occasioned is not enough to warrant the quashing of the order which can be supported by Section 537. The provisions of Section 537 are these. "No order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or in revision on account of any error, omission or irregularity unless such error, omission or irregularity has in fact occasioned a failure of justice" and an explanation is appended which says :
In determining whether any error, omission or irregularity has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Now since the decision of the Privy Council in Abdul Rahman v. Emperor 1927 (28) Cri LJ 259, it is no longer open to the Courts in India to hold that a trial is vitiated by the mere fact that an imperative statutory rule of procedure has been broken. The Court must also consider whether such failure has in fact occasioned a failure of justice.
12. A view similar to the one taken in Natho Khan's case (supra), had been taken in Sankatha Misir v. Bishwanath AIR 1931 Allahabad 2 : 1931 (32) Cri LJ 368, Re Raju Shetty AIR 1960 Mysore 48 : 1960 Cri LJ 373 and Chhotu v. State of Gujarat AIR 1967 Gujarat 115.
13. In L.D. Healy v. State of Uttar Pradesh (1969) 1 SCC 149, two witnesses were examined for the prosecution before one Special Judge and the record of the evidence was made in Hindi and an English memorandum of evidence was also maintained. The statements were read over to the witnesses and were signed by them in acknowledgement of their correctness. But the Special Judge, before whom the statements were made died before he could append his signatures to the statements. His successor recalled the said witnesses and their evidence previously recorded was read over to them and they confirmed its correctness. The successor Special Judge also offered opportunity to the counsel for the accused to cross-examine the witnesses but the offer was declined without objection to the reading of the evidence to the witnesses and no request for re-examining them was made. The Special Judge then appended his signatures to the record of the statements and to the English memorandum of evidence. There was no suggestion of injustice actual or possible arising from the failure to comply with the statute. Against this background, the Hon'ble Apex Court held as under :
Section 356 deals with the mode of recording evidence. The object of the section is to maintain a correct record of the testimony of the witnesses. The section occurs in Chapter XXV of the Code, and deals with the mode of taking and recording evidence in inquiries and trials. To ensure a fair trial it is provided that the evidence shall be recorded in the presence of the accused, or where his presence is dispensed with in the presence of his lawyer (353); in cases tried before the Court of Session or Magistrates other than presidency Magistrates, the evidence shall be taken down in writing in the language of the Court either in his own hand by the Presiding Officer or under his direction in open Court, or in his presence and hearing and under his personal supervision, and shall be signed by him (Section 356); the evidence shall after it is completed be read over to each witness, in the presence of the accused or his lawyer, and it may, if necessary, be corrected [Section 360 (1)] if the evidence is taken down in a language different from the language in which it is given, and the witness does not understand the language in which it is taken down, it shall be interpreted to him [Section 360 (3)]; if the accused does not understand the language in which the evidence is given, it shall be interpreted in the language understood by him; and the statement of the accused shall be recorded in the form of questions and answers [Section 364(1)]; whereas the evidence of witnesses shall Unless otherwise directed be taken in narrative form. Compliance with the provisions is insisted upon in the larger interest of justice, but every departure from the strict letter of the law will not affect the validity of the trial. The object of the provisions being to ensure that a correct record is maintained of what is said in Court by witnesses, so that it may be available at a later stage of the trial and in appeal, if the Court is satisfied that in a given case the record notwithstanding any departure from the provisions Is correct, the irregularity may be ignored if no injustice has resulted there from.
It was further held as under :
There was irregularity in maintaining the record of the evidence at the trial, because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence. There was, therefore, no strict compliance with the provisions of Section 356(1), Code of Criminal Procedure. But no ground for holding that the trial is vitiated is made out merely because instead of the Judge who heard the evidence, his successor had signed the record. In Abdul Rahman v. King Emperor ILR 54 IA 96 : 1927 (28) Cri LJ 259 (PC) at the trial of a person accused of a charge for abetment of forgery the deposition of witnesses were read over to them while the case otherwise proceeded and the evidence of some other witnesses was handed over to them to read to themselves. There was violation of Section 360, Code of Criminal Procedure, which provided that deposition of each witness should be read over to him in the presence of the accused or his pleader. An objection was raised as to the validity of the order of conviction on the ground that the requirements of Section 360 of the Code of Criminal Procedure were not complied with. No inaccuracy in the deposition was suggested, but only failure to comply with the strict requirements of Section 360 was made the ground on which the trial was contended to be vitiated. The Judicial Committee observed that there had been no actual or possible failure of justice. According to the Judicial Committee reading over of the depositions of the witnesses while the case was otherwise proceeding was not a violation of Section 360 of the Code, and that giving of depositions to witnesses to read to themselves was rightly treated by the High Court as an irregularity curable under Section 537 of the Code of Criminal Procedure. Failure to record the evidence of witnesses J.K. Mehta and V.P. Chaturvedi again in the presence and under the superintendence of the Judge may be a regrettable irregularity, but it does not vitiate the trial.
14. In view of the decisions referred to hereinabove, the settled position in law as at present appears that the lapses of not recording of the statements of the witnesses in the language in which the statements are made and non-signing thereof by the presiding Judge will be an irregularity which may be ignored and will not vitiate the trial and the lapse(s) is curable under Section 465 of the new Code unless justice has resulted there from.
15. In view of the frame of Sections 276, 277 and 278 of the new Code, the same principle shall govern the lapse in maintaining the record of examination of the accused. In the case in hand as pointed out earlier there had been non-compliance of the relevant provisions in maintaining the Hindi record of the evidence and statement of the accused and this cannot be read as lawfully recorded evidence. However, there is no such lapse in maintaining the English record which is duly maintained in accordance with law and there is no such lapse in maintaining this record which may have material bearing on the appreciation of evidence and thereby prejudice the parties and the interest of justice. It has merely typographical errors, insignificant and negligible in nature. Otherwise there is due compliance of the relevant provisions of law in maintaining the English record of the evidence and the statement of the accused which are certified to have been read over to and acknowledged by the witnesses and the accused, have been signed by them and the learned presiding Judge. We are, thus, of the considered view that the English record can be looked into and relied upon for the purpose of disposal | of the appeal by ignoring the Hindi record which has not been maintained in accordance with law as such a course is not going to cause any prejudice to the parties and the interest of justice. The question is decided accordingly.
16. The appeal to be heard on merits.
R.L. Khurana, J.
17. The appellant, Ramesh Chand alias Rodu, hereinafter referred to as the accused, stands convicted by the learned Sessions Judge, Kangra at Dharamshala, in Sessions case No. 45-J/VII of 1999 vide judgment dated 27-7-2000 for the offence under Section 302, Indian Penal Code and upon such conviction he has been sentenced to imprisonment for life and also to pay a fine of Rs. 10,000/ -. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a further period of one year.
17-A. Briefly, the prosecution story may be thus stated. The accused is a resident of village Katholi, Tehsil Jawali of District Kangra. He owns land in village Khabbal, PW1 Sidhu alias Mohinder has taken a piece of land on rent from the accused wherein he has constructed a hut and is residing therein along with his wife Smt. Bholi Devi (hereinafter referred to as deceased) and three daughters of the ages between one year and six years.
18. On 17-5-1999 at about 8 P.M. PW 1 had gone to his field in order to set up "Jandaries" (catches for animals). While so working in the field he heard the sound of crying of his children coming from the side of his hut. He came running to his hut and saw his wife, the deceased, on fire. He extinguished the fire. By that time the deceased was seriously burnt. He directed his wife to go to the Panchayat. He carried his crying children and followed the deceased and was able to join her on the way near a tube well. On hearing the cries of the deceased, a number of persons gathered near the tube well including PW 2 Smt. Santosh, Pradhan of Gram Panchayat, Khabbal, and PW 4 Bajro Ram. On enquiries by PW 2 Smt. Santosh, the deceased told her that she was set on fire by the accused. The deceased was taken to the hospital at Nagrota Surian where she was medically examined by PW 9 Dr. Kuldeep Kumar. She was found to have sustained burns to the extent of 90%. PW 9 after examining the deceased referred her to Zonal Hospital, Dharamshala, for further management. The deceased on having been brought to Dharamshala died at about 2.30 P.M. on 18-5-1999 at Zonal Hospital.
19. On the deceased having been brought to the hospital at Nagrota Surian with burn injuries, PW 9 Dr. Kuldeep Kumar gave necessary information to the police. On such information PW 15 Head Constable Parma Nand went to the hospital and after obtaining the opinion of PW 9 as to whether the deceased was in a fit state to make a statement, he recorded the statement Ex. PK of the deceased in the presence of PW 9 Dr. Kuldeep Kumar, on the basis of which a case for the offence under Section 307, Indian Penal Code, came to be registered at Police Station, Haripur vide F.I.R. No. 30 of 1999, Ex. PS. After the death of the deceased, the offence was converted to the one under Section 302, Indian Penal Code. On the basis of investigation, the offence under Section 3(2)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, also came to be added.
20. During the course of investigation, the dead body of the deceased was subjected to post-mortem, which was conducted by PW 8 Dr. Dinesh Mehta. In the opinion of the Doctor, the deceased had died due to asphyxia and hypovolaemic shock due to ante-mortem superficial 85% burns.
21. The investigation Officer took into possession one match box, an empty bottle used as a lamp and a piece of burnt cloth from the spot vide memo Ex. PB.
22. On the completion of investigation, the accused was sent up for trial. He pleaded not guilty to the charge. His case is that of denial and false implication. The defence set up by the accused in his statement recorded under Section 313, Code of Criminal Procedure, in answer to question No. 25 as under :-
Sindhu is a notorious criminal. Sindhu alias Mohinder had taken the land from me for the construction of a 'Juggi' one year ago. He had built a hut there. However, when I learnt that he deals in sale and distillation of the illicit liquor along with his wife Bholi Devi, I asked him to leave my land, since the persons used to take illicit liquor at his hut. Since this was objected by me, he got the case falsely instituted in connivance with the police. I have learnt that still now he is doing the work of illicit liquor there. The police of Police Post Nagrota Surian is helping Sindhu in his work of illicit distillation.
23. The prosecution, in support of its case, in order to bring home the offence against the accused examined nineteen witnesses in all. No defence evidence was led by the accused.
24. The learned trial Judge, upon consideration of the evidence led before him while acquitting the accused of the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, convicted and sentenced the accused for the offence under Section 302, Indian Penal Code, as aforesaid.
25. The accused, feeling aggrieved by the conviction and sentence imposed upon him by the learned trial Judge, has approached this Court by way of the present appeal under Section 374, Code of Criminal Procedure, assailing his conviction and sentence.
26. Be it stated that the State has not assailed the acquittal of the accused of the offence under Section 3{2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as recorded by the learned trial Judge, by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal has, thus, become final.
27. We have heard the learned counsel for the parties and have also gone through the record of the case.
28. Admittedly, there is no eyewitness in the present case. The case of the prosecution is, primarily, based on the following dying declarations alleged to have been made by the deceased :-
(i) Ex. PK made by the deceased to PW 15 Head Constable Parma Nand in the presence of PW 9 Dr. Kuldeep Kumar; and
(ii) Oral dying declarations alleged to have been made by the deceased near the tube well to PW 2 Smt. Santosh in the presence of PW 3. Phindu and PW 4 Bajro Ram.
29. Ex. PK is, in fact, the statement of the deceased, which was purported to have been recorded by PW 15 Head Constable under Section 154, Code of Criminal Procedure. Admittedly, a case was thereafter registered for the offence under Section 307, Indian Penal Code, vide F.I.R. Ex. PS.
30. It is well settled that such a statement can be treated as a dying declaration within the meaning of Section 32, Evidence Act, 1872.
31. In Gulam Hussain v. State of Delhi (2000) 7 SCC 254 : 2000 Cri LJ 3949, the statement of the victim of the burn injuries was recorded by an Assistant Sub-Inspector in hospital after getting an opinion from the Doctor that the injured was fit to make a statement. Later the victim died. In his deposition he had referred to the circumstances which ultimately proved to be the cause of his death. A contention was raised on behalf of the accused therein that since the statement was recorded by the investigation Officer, which was treated as F.I.R. the same could not be treated as a dying declaration and was inadmissible in evidence. Repelling the contention it was held by the Hon'ble Supreme Court that because at the time of recording the statement the Assistant Sub-Inspector did not possess the capacity of an investigation Officer as the investigation had not commenced by then, such a statement could be treated as a dying declaration which is admissible in evidence under Section 32, Evidence Act.
32. It is by now well settled that dying declaration is admissible in evidence and can form the basis of conviction, if 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 premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. This premise, which is based on the maxim "A man will not meet his maker with a lie in his mouth", is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without need for independent corroboration, it must be shown that person making it had the opportunity of identifying the person implicated and it is thoroughly reliable and free from blemish. If, in the facts and in the 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 should not be acted upon unless it is corroborated. A dying declaration by itself is an independent piece of evidence and can be acted upon, without seeking any corroboration, if it is found to be otherwise true and reliable.
33. The Hon'ble Supreme Court in Gulam Hussain v. State of Delhi, 2000 Cri LJ 3949 (supra) has held (paras 11 and 12) :
(i) A dying declaration must be dealt with caution for the reason that the maker thereof had not been subjected to cross-examination;
(ii) there is no rule of law or rule of prudence that a dying declaration cannot be accepted unless it is corroborated;
(iii) However, in case the prosecution fails to fully establish the recording of the alleged dying declaration, it would not be safe to convict the accused only on such dying declaration unless the same is corroborated in other material particulars.
34. Dealing with the question of evidentiary value to be attached to a dying declaration, the Supreme Court in Kundula Bala Subrahmariyam v. State of Andhra Pradesh (1993) 2 SCC 684 : 1993 Cri LJ 1635, has held (para 10) :
Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the Court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same....
35. In the light of the above principles, we now proceed to examine the above dying declarations.
36. At this stage, it would be appropriate to reproduce the statement Ex. PK, alleged to have been made by the deceased and recorded by PW 15 Head Constable Parma Nand in the presence of PW 9 Dr. Kuldeep Kumar. It reads :-
Statement of Smt. Bholi Devi wife of Sindhu alias Mohinder, caste Bangali, resident of Khabbal, Tehsil Jawali, Police Station Haripur, District Kangra, aged 26 years.
Stated that I am a resident of the abovesaid address and a housewife. Today the 17-5-1999 at about 8 P.M. I was cooking food outside my house. My husband had gone to the field to fix the 'Jandries'. In the meantime, Ramesh Chand alias Rodu came to my house and enquired about Sindhu. I told him that he had gone to the fields to fix 'Jandries'. He was demanding rent in respect of the land. He demanded Rs. 400/- as rent for two months. On my refusal to pay the rent, he caught hold of me from my arm and threw the burning kerosene lamp on me as a result of which my clothes caught fire and Rodu ran away. On hearing my cries. my husband came running, extinguished the fire and immediately brought me to the hospital Nagrota Surian. I have been set on fire by Ramesh Chand alias Rodu.
(Emphasis supplied)
37. As per the above version, which is stated to be the first version, given to the police, PW 1 Sindhu alias Mohinder on hearing the cries of the deceased came running, extinguished the fire and immediately carried the deceased to the hospital at Nagrota Surian. It is not in the statement of the deceased that she was asked by her husband (PW 1) to go to Panchayat and that on the way near the tube well she had met PW 2 Smt. Santosh or PW 3 Phindu or PW 4 Bajro Ram and that she had told them about her having been set on fire by the accused. On this short ground alone, the evidence of the prosecution regarding the making of an oral dying declaration by the deceased to PW 2 Smt. Santosh in the presence of PW 3 Phindu and PW 4 Bajro Ram near the tube well cannot be believed and relied upon.
38. Even otherwise, the evidence of the prosecution with regard to the making of a dying declaration by the deceased to PW 2 Smt, Santosh is not free from doubt.
39. PW 2 Smt. Santosh admittedly is not the Pradhan of the Gram Panchayat of the village of the deceased. She is the Pradhan of a different Gram Panchayat. She has deposed that on the relevant date at about 8 P.M. or 8.30 P.M. when she was present in her house. PW 3 Phindu came to call her by informing that the deceased having suffered burn injuries. She first refused to accompany PW 3 Phindu since the deceased was not a resident of her Panchayat. However, subsequently, on humanitarian grounds she accompanied PW 3 and went to the tube well where the deceased was present. When she enquired from the deceased as to what had happened, the deceased told her "she should be saved and Rodu Ram had set her on fire". PW 2 had further stated that nothing else was told to her by the deceased and that she had directed that the deceased be taken to the hospital.
40. During her cross-examination PW 2 Smt. Santosh has stated to the following facts :-
(i) the deceased did not tell her how she had suffered the burn injuries, that is, the mode or manner in which she had suffered the burn injuries;
(ii) the deceased did not tell her that kerosene was poured on her and then she was set on fire; and
(iii) she (PW 2) did not tell the police also regarding the manner in which the deceased had sustained burn injuries.
41. PW 3 Phindu in his statement initially stated in the following terms :-
Stated that I know Bholi and her husband Sindhu alias Mohinder. About 11 months ago, at about 8.30 or 9 P.M., I was present in my house. Bholi came weeping through common passage in front of my house. She cried that she has suffered burn injuries and she should be saved. She was asked to wait at tube well and then Pradhan was called, namely, Santosh Kumari, I told Santosh Kumari to enquire from her as to what had happened because she was a lady. I do not know what she enquired and what was told by Bholi, then she was taken to the Police Post.
42. PW 3 Phindu was got declared hostile by the prosecution and during the course of cross-examination by the learned Public Prosecutor, admitted as under :-
When Bholi passed in front of my house through common path by crying she told that she had been burnt by accused Rodu and thereafter I went to call the Pradhan, I told this fact to the Pradhan also that Bholi Devi is telling that she had been burnt by the accused Rodu. It is incorrect that when Pradhan enquired from Bholi about her cause of burning, the deceased told her that she had been set on fire by the accused Rodu. However, lady Pradhan enquired from the deceased but as to what transpired between them, I do not know.
43. During the course of cross-examination by the accused, the witness reiterated that nothing had transpired between the deceased and PW 2 Smt. Santosh in his presence.
44. Thus, PW 3 Phindu has not only not supported the case of prosecution about the making of an oral dying declaration by the deceased to PW 2 Smt. Santosh, he has gone to the extent of introducing a new case about the deceased while crying having told him about the accused having set her on fire and that such fact was disclosed by him to PW 2 Smt. Santosh when he had gone to call her. This version of PW 3 Phindu does not find support from the testimony of PW 2 Smt. Santosh.
45. PW 4 Bajro Ram has deposed that when PW 2 Smt. Santosh had enquired from the deceased, she had named the accused Rodu as having set her on fire. On being cross-examined by the accused, the witness stated that apart from naming Roda, the deceased had not stated anything as regard to the manner in which she sustained the burn injuries. The witness pleaded ignorance to the suggestion put to him if the deceased had named the accused on the advice of her husband.
46. In view of the major contradictions coming on the record with regard to the making of the oral dying declaration by the deceased to PW 2 Smt. Santosh and the circumstances pointed out above, the learned trial Judge has gravely erred in placing reliance on the same.
47. It has been held in Darshana Devi v. State of Punjab (1996) 1 Chand LR 315, by the Hon'ble Supreme Court while dealing with the question of evidentiary value of an oral dying declaration that though an oral dying declaration can form the basis of conviction, in a given case, such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of exact words of the oral declaration in such cases is very important. The difference in the exact words of declaration detracts materially from the value of the oral dying declaration.
(Emphasis supplied)
48. In the present case none of the witnesses examined by the prosecution has reproduced the exact words of the oral declaration. All the witnesses have stated differently thereby rendering the alleged oral dying declaration doubtful.
49. The making of dying declaration Ex. PK by the deceased is also not free from doubt. As stated above, the case of the prosecution is that on the deceased having been brought to the hospital at Nagrota Surian with burn injuries, necessary information was telephonically given by PW 9 Dr. Kuldeep Kumar to the police. Such report vide Ex. PM is shown to have been received by PW 16 A.S.I, Ramesh Chand at 12.30 A.M. on 18-5-1999, who is alleged to have deputed PW 14 Head Constable Parma Nand to the hospital. The statement Ex. PK of the deceased is shown to have been recorded by PW 15 Head Constable Parma Nand in the presence of PW 9 Dr. Kuldeep Kumar at about 1.35 A.M. on 18-5-1999.
50. PW 1 Sindhu alias Mohinder, the husband of the deceased, as well as PW 4 Bajro Ram, however, have a different story to tell. It is the admitted case of the prosecution that PW 4 Bajro Ram had accompanied PW 1 Sindhu alias Mohinder when the deceased was taken to the hospital. According to PW 1 and PW 4, they along with the deceased had first gone to the police post and then on the advice of the police they had gone to the hospital. PW 1 in his cross-examination has stated :-
PWs Bajro and Surinder went up to Police post with me and Bholi but they were not present in the hospital. The police did not accompany me from the Police Post to the hospital. But they sent me and then they followed me. The police officials at Police Post had enquired the facts from us and I and Bholi both narrated the facts to the police, which were reduced into writing by the police.
(Emphasis supplied)
51. Similarly, PW 4 Bajro Ram during the course of his cross-examination by the accused, has deposed :-
We first went to police post Nagrota Surian where police was present, the police enquired from us at Police Post. We all told the facts in our statement to the police. The police also recorded the statement of Bholi Devi at police Post and it is correct that it was thumb marked by her.... From police Post, we went to the hospital and I followed other persons. Bholi and Mohinder were talking with one another on the way to Police Post and hospital, and the police man accompanying her was also enquiring her on the way.
52. The version given by PW 1 and PW 4 has been denied by PW 16 A.S.I. Ramesh Chand by stating as under :-
It is incorrect that Bholi, her husband Mohinder, Bajro and Surinder had come to Police Post before going to the hospital. It is incorrect that I enquired from them at the Police Post and also recorded their statements. It is incorrect that I am concealing those statements today. It is incorrect that I observed at Police Post that condition of Bholi was critical and she was unable to make a statement. Self stated that she had not come there.
53. In view of the version put forth by PW 1 and PW 4 that they had first gone to the Police Post before going to the hospital and that their statements and that of Bholi deceased were recorded at the Police Post, the very story of the prosecution that PW 15 Head Constable had gone to the hospital on receipt of information from PW 9 Dr. Kuldeep Kumar falls to the ground and the only inference which can be drawn is that Ex. PK came to be recorded as a result of due deliberations and consultation.
54. There are material circumstances in the present case which render the prosecution story and the version contained in Ex. PK as doubtful. According to the prosecution the accused had thrown the burning kerosene lamp on the deceased. It is the admitted case of the prosecution that the deceased was using an improvised kerosene lamp, that is, an empty quart of liquor was being used as a lamp by filling the same with kerosene and putting a wick therein. Such quart with the wick inside is alleged to have been taken in possession by PW 16 A.S.I. Ramesh Chand from the spot vide memo, Ex. PB.
55. A perusal of Ex. PB shows that the quart taken into possession from the spot was "empty" and there was smell of kerosene there from. However, when such quart was sent to Forensic Science Laboratory it was found to contain 45 mls. of kerosene. How the quart came to contain kerosene to the extent of 45 mls. when the same was empty when taken into possession, has remained unexplained. The only inference is that the kerosene appears to have been poured in the quart after it was taken into possession and before it was sent to the Laboratory for examination in order to lend credence and support to the prosecution story.
56. It is pertinent to note that PW 9 Dr. Kuldeep Kumar who had medically examined the deceased at the first instance on her having been brought to him in the hospital at Nagrota Surian and who had issued the medical certificate Ex. PL has categorically stated in his deposition in Court that there was no smell of kerosene at the time of examination of the deceased and as such he had not mentioned about the smell in the certificate Ex. PL. PW 8 Dr. Dinesh Mehta, who had conducted the post-mortem of the dead body, also has deposed that there was no smell of kerosene on the body of the deceased at the time of post-mortem, therefore, he had not mentioned the same in his report Ex. PG.
57. A burnt piece of clothes which the deceased was allegedly wearing at the time of occurrence was taken into possession from the spot by the Investigation Officer PW 16 A.S.I. Ramesh Chand vide memo Ex. PB. Such burnt piece of cloth was sent to Forensic Science Laboratory for examination and vide report Ex. PT no traces or particles of kerosene were found thereon.
58. The above evidence with regard to absence of kerosene on the burnt piece of cloth and the absence of smell of kerosene from the body of the deceased also belies the prosecution story as to the deceased having been set on fire by the accused by throwing a burning kerosene lamp at her.
59. The burnt piece of cloth taken into possession from the spot is that of synthetic cloth, that is, Nylon, as is evident from Ex. PB, which means that the deceased while cooking food was wearing nylon clothes. Therefore, the possibility of such clothes having caught fire while the deceased was cooking food cannot be ruled out.
60. For the foregoing reasons it is not safe to rely upon the alleged dying declaration Ex. PK, without corroboration, in recording a conviction against the accused. The learned trial Judge has erred in placing, reliance on the same.
61. Resultantly, the present appeal is allowed. The conviction and sentence recorded by the learned trial Judge against the accused are set aside and he is acquitted of the offence under Section 302, Indian Penal Code.
62. The accused, who is in jail undergoing sentence, shall be set at liberty forthwith, if not required in any other case. The amount of fine, if already realised, shall be refunded to the accused. Case property be dealt with as per the directions of the learned trial Judge.