Himachal Pradesh High Court
State Of H.P vs Ramesh Chand on 16 July, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 319 of 2012 Judgment reserved on: 21.6.2016 Date of Decision: July 16, 2016 .
State of H.P. ...Appellant.
Versus
Ramesh Chand ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes. 1For the Appellant:
rt Mr. V.S. Chauhan, Addl. AG., and Mr. Vikram Thakur, Dy. AG.
For the Respondent: Mr. Pawan Gautam, Advocate.
Mr. Yudhbir Singh Thakur, Amicus Curiae.
Sanjay Karol, Judge State has appealed against the judgment dated 18.1.2012, passed by learned Additional Sessions Judge (I), Kangra at Dharamshala, Himachal Pradesh, in Sessions Case No.25-B/2009, titled as State of Himachal Pradesh v.
Ramesh Chand, challenging the acquittal of respondent Ramesh Chand (hereinafter referred to as the accused), who stands charged for having committed offences punishable under the provisions of Sections 498-A and 302 of the Indian Penal Code.
Whether reporters of the local papers may be allowed to see the judgment?
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2. On the basis of complaint (Ex.PW-1/A) so made by Smt. Sarla Devi (PW-1), FIR No.92, dated 22.7.2009 (Ex.PW-12/A), for commission of offence under the .
provisions of Section 498A/306 of the Indian Penal Code, was registered at Police Station, Baijnath. Investigation so conducted by SI Ghanshyam Chand (PW-16), revealed that accused subjected his wife, i.e deceased Veena Devi to of cruelty, which prompted her to take away her life by setting herself on fire on 21.7.2009. Resultantly challan rt was presented in the Court and the accused was charged for having committed offences, punishable under the provisions of Sections 498A and 306 of the Indian Penal Code.
3. During trial, it was so observed that in fact it was the accused, who had set his wife, i.e. deceased Veena Devi, on fire, as a result of which the charge was altered in relation to offence, punishable under the provisions of Sections 498A and 302 of the Indian Penal Code.
4. Statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took the following defence:
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"It was my second marriage with Veena Devi, therefore my in-laws insisted that land adjoining near to Ayurvedic Medical College, Paprola be mutated in the name of Veena Devi. But the land was not so mutated. Therefore, .
Sarla Devi etc. used to quarrel with me at my home. Therefore, Veena Devi was under depression and she committed suicide."
"I had tried to save Veena Devi and my hands also got burnt and I am innocent."
5. Record reveals that with the alteration of of charge, based on the statements made by the learned Public Prosecutor and the accused, the trial Court considered the evidence originally led by the parties.
rt
6. In relation to the altered charges, based on the evidence already led by the parties, trial Court acquitted the accused on all counts, finding the testimonies of Smt. Sarla Devi (PW-1) and Simran alias Seema (PW-15) not to be inspiring in confidence. Hence, the present appeal by the State.
7. Having heard learned counsel for the parties as also perused the record, we are of the considered view that the trial Court seriously erred in correctly and completely appreciating the testimonies of the prosecution witnesses.
8. A Constitution Bench of the Hon'ble Supreme Court of India in M.G. Agarwal v. State of Maharashtra, AIR ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...4...
1963 SC 200, has held that in dealing with an appeal against the judgment of acquittal, the appellate Court should normally be slow in disturbing the findings of fact .
recorded by the trial Court. However, there is a caveat.
Such findings have to be based on proper and complete appreciation of evidence. Jurisdiction and the power of the appellate Court is also to reappreciate the evidence but of with caution. The Court is not to substitute its own opinion with that of the trial Court.
9. rt In Madan Gopal Makkad v. Naval Dubey and another, (1992) 3 SCC 204, the Apex Court held the scope of the Court in an appeal against acquittal in the following manner:
"26. In Wilayat Khan v. State of U.P., AIR 1953 SC 122; this court while examining the scope of S. 417 and 423 of the old Code pointed out that even in appeals against acquittal, the powers of the High court are as wide as in appeals from convictions. See also (1) Surajpal Singh v. State, AIR 1952 SC 52, (2) Tulsiram Kanu v. State, AIR 1954 SC 1, (3) Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, (4) Radha Kishan v. State of U.P., AIR 1963 SC 822, holding that an appeal from acquittal need not be treated different from an appeal from conviction; (5) Jadunath Singh v. State of U.P., (1971) 3 SCC 577, (6) Dharam Das v. State of U.P., (1973) 2 SCC 216, (7) Barati v. State of U.P., (1974) 4 SCC 258, and (8) Sethu Madhavan Nair v. State of Kerala, (1975) 3 SCC 150."::: Downloaded on - 15/04/2017 20:49:46 :::HCHP
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10. The fact that accused was married to deceased Veena Devi is not in dispute. Such marriage came to be solemnized sometime in the year 2006, is evident from the .
testimony of Smt. Sarla Devi (PW-1) and Dalip Kumar (PW-
2). From the conjoint reading of the testimonies of these witnesses, it is evident that under the influence of alcohol, accused used to physically assault the deceased. Such of version goes unrebutted. In relation to such acts, matter came to be reported to the Panchayat and Ramesh Chand solemnized.
rt (PW-8), under whose mediation the marriage came to be Smt. Sarla Devi has categorically deposed that the matter pertaining to the beatings and maltreatment came to be reported to the police and the Panchayat. Some action was taken and the matter came to be compromised, with the accused agreeing not to repeat the crime, which version also stands corroborated not only by Dalip Kumar but also by Smt. Kavita Devi (PW-
6). Even though, the Investigating Officer admits the factum of maltreatment, under the influence of liquor not having come to his notice during the course of investigation, but then it is not the case of the close relatives of the deceased that any formal complaint came ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...6...
to be lodged. And, above all, this fact is also evidently clear from the statement of Simran (PW-15), whose statement is reproduced in toto in the later part of the .
judgment. Thus, the factum of the deceased being subjected to cruelty stands conclusively established, beyond reasonable doubt.
11. It is an admitted case of the parties that on of 22.7.2009, the deceased was taken to a private hospital at Paprola, for treatment of burn injuries.
12. rt From the testimony of SI Ghanshyam Chand, it is evidently clear that a telephonic message was received from the Medical Officer, SDH, Baijanth that one lady in a burnt condition came to be admitted and accordingly Rapt (Ex.PW-13/A) registered. This witness alongwith L/C Suman Devi (PW-4) rushed to the Hospital, where Smt. Sarla Devi got recorded her statement (Ex.PW-1/A). The said statement does not record that the accused had set the deceased on fire, but then, the Investigating Officer himself has explained that in the supplementary statement, such fact came to be recorded. We may only observe that the complainant is a rustic villager. She hails from a rural background. She is illiterate and the ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...7...
Investigating Officer has explained the discrepancy, which had crept in the two statements, only on account of his fault. Crucially, even the Investigating Officer states that .
in the hospital, Smt. Sunita Thakur (PW-5), a Nurse, who had attended to the deceased had informed that the deceased was burnt as kerosene oil caught fire and that such information also came to be furnished to the parents of of the deceased.
13. It is not the law, as is so urged by the learned rt counsel for the accused, that dying declaration has to be before the Doctor, Magistrate or a Government Officer.
14. Dying declaration can be made any time, in the presence of anyone. It need not to be a Doctor, a Government Officer or an Executive Magistrate. So long as the victim is aware and fully conscious of what is being done and said, any statement made by her can be treated as a piece of evidence, it being a different matter, as to whether it requires corroboration or not. (See: Munnu Raja and another v. The State of Madhya Pradesh, (1976) 3 SCC 104; Ramawati Devi v. State of Bihar, (1983) 1 SCC 211).
15. In Jaishree Anant Khandekar vs. State of Maharashtra, (2009) 11 SCC 647, a comparative study of ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...8...
laws of various countries on the point of dying declaration was done by the Apex Court. It was held that:
.
"17. The law relating to dying declaration is an exception to the hearsay rule. The rationale behind admissibility of a dying declaration was best expressed, not in any judgment, but in one of the soliloquies in Shakespeare's King John, when fatally wounded Melun wails:
of 'Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away rt even as a form of wax, Resolveth from his figure 'gainst the fire?
What in the world should make me now deceive, Since I must lose the use of all deceit?
Why should I then be false since it is true That I must die here and live hence by truth?' (See King John, Act V, Scene IV.)
18. Both Taylor and Wigmore in their treatise on Evidence took refuge to the magic of Shakespeare to illustrate the principles behind admissibility of dying declaration by quoting the above passage.
19. Among the judicial fraternity this has been best expressed, possibly by Lord Chief Justice Baron Eyre (See. R. Vs. Woodcock, (1789) 1 Lea.502, and which I quote (ER p.353): -
"...That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...9...
every motive to falsehood is silenced,
and the mind is induced by the most
powerful considerations to speak
the truth; a situation so solemn
and so awful is considered by
.
the law as creating an obligation,
equal to that which is imposed by a
positive oath in a court of
justice."
20. The test of admissibility of dying
declaration is stricter in English Law than in Indian Law. Sir James Fitzjames Stephen in 1876 of brought out a 'Digest of the Law of Evidence' and its introduction is of considerable interest even today. The rt author wrote that English Evidence is modelled on the Indian Evidence Act Code of of 1872. In the words of the author:
"In the autumn of 1872 Lord Coleridge (then Attorney General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed.
It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence."::: Downloaded on - 15/04/2017 20:49:46 :::HCHP
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21. In that book, Article 26 sums up the English law relating to dying declaration as under:-
.
"Article 26. Dying Declaration as to Cause of Death . - A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, of to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. rt Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular."
(emphasis supplied)
22. In Section 32(1) of the Indian Evidence Act the underlined portion is not there. Instead Section 32 (1) is worded differently and which is set out:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-::: Downloaded on - 15/04/2017 20:49:46 :::HCHP
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(1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or to any of the circumstances of the transaction which resulted in his death, in .
cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be he nature of the proceeding in which the cause of his death comes into question." (emphasis of supplied)
23. The Privy Council in the case of Nembhard Vs. The Queen, 1982 (1) The All England Law Reports 183 (Privy Council), while hearing an rt appeal from the Court of Appeal of Jamaica, made a comparison of the English Law and Indian Law by referring to the underlined portions of Section 32(1) of the Indian Evidence Act at page 187 of the report. Sir Owen Woodhouse, speaking for the Privy Council, pointed out the different statutory dispensation in Indian Law prescribing a test of admissibility of dying declaration which is distinct from a common law test in English Law.
24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. American Law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle.
25. On certainty of death, the same strict test of English Law has been applied ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...12...
in American Jurisprudence. The test has been variously expressed as 'no hope of recovery', 'a settled expectation of death'. The core concept is that the expectation of death must be absolute and .
not susceptible to doubts and there should be no chance of operation of worldly motives. (See Wigmore on Evidence page 233-234).
26. This Court in Kishan Lal Vs. State of Rajasthan, AIR 1999 SC 3062, held that under English Law the credence and the relevance of the dying declaration is admissible only when the person making of such statement is in hopeless condition and expecting imminent death. Justice Willes coined it as a "settled hopeless expectation of death" (R Vs. Peel, (1860) 2 F. & F. 21, which was approved by the Court of Criminal Appeal in R Vs. Perry, rt (1909) 2 KB 697). Under our Law, the declaration is relevant even if it is made by a person, who may or may not be under expectation of death, at the time of declaration. (See para 18,page 3066). However, the declaration must relate to any of the circumstances of the transaction which resulted in his death."
16. The apex Court in Tapinder Singh vs. State of Punjab & another, AIR 1970 S.C. 1566 has held that if the dying declaration is acceptable as truthful then even in the absence of other corroborative evidence, the Court can act upon it and convict the accused.
17. In Khushal Rao vs. State of Bombay, AIR 1958 SC 22, the Apex Court has further held that:-
"Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted.::: Downloaded on - 15/04/2017 20:49:46 :::HCHP
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But in our opinion, it is not right in principle to do so. Though under S. 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, illustration (b) to S. 114 of the Act, lays down as .
a rule of produce based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose of antecedents are as doubtful as in the other cases that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an rt approver."
"It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...14...
lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the .
statement, by circumstances beyond his control;
that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
"In order to pass the test of reliability, a of dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the rtveracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities."
(Emphasis supplied)
18. The aforesaid decision came up for consideration before the Constitution Bench of the Apex Court in Harbans Singh and another vs. The State of Punjab, AIR 1962 SC 439 and after taking into account its ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...15...
earlier decision in Ram Nath vs. State of Madhya Pradesh, AIR 1953 SC 420, affirmed the aforesaid view.
19. In Paniben (Smt.) vs. State of Gujarat, (1992) .
2 SCC 474, the Court has further reiterated and laid down the following principles:-
"A dying declaration is entitled to great weight. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.
of It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of rtprudence."
"However, since the accused has no power of cross-examination, which is essential for eliciting the truth, the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail".
"Merely because a dying declaration does not contain the details as to occurrence, it is not to be rejected. Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...16...
of the statement itself guarantees truth. But a dying declaration which suffers from infirmity cannot form the basis of conviction. Where the prosecution version differs from the version as given in the .
dying declaration, the said declaration cannot be acted upon."
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199).
of
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi v. State of rt Bihar, AIR 1983 SC 164).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v.
Public Prosecutor, AIR 1976 SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v.
State of Madhya Pradesh, (1974) 4 SCC 264 : (AIR 1974 SC 332).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P., AIR 1982 SC 1021).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., 1981 SCC (Crl) 581).
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(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
.
(viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v.
State of Bihar, AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental of condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion rt cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519).
19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohan Lal v. State of Maharashtra, AIR 1982 SC 839 held:
"where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred."
Of course, if the plurality of dying declarations could be held to be trust- worthy and reliable, they have to be accepted."
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20. In Jayabalan vs. Union Territory of Pondicherry, (2010) 1 SCC 199, the Apex Court was dealing with the case of an accused who after pouring .
kerosene oil had set his wife on fire. The husband was held guilty of having committed an offence punishable under Section 302, IPC. The accused assailed the findings of conviction on the ground that prosecution had of examined only interested witnesses and also dying declaration was tutored, promoted and product of the rt imagination of deceased. In the proven facts of that case repelling the contention, it was held as under:-
"We are of the considered view that in case where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." (Emphasis supplied)
21. In Krishan vs. State of Haryana, (2013) 3 SCC 280, even where the witnesses had turned hostile, solely ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...19...
on the basis of dying declaration, the Court convicted the accused.
22. There can be more than one dying declarations .
and if there is no inconsistency between them, all can be used against the accused for proving the guilt. [State of Karnataka vs. Shariff, (2003) 2 SCC 473 and (1982) 1 SCC 700, Mohanlal Gangaram Gehani vs. State of of Maharashtra, (1982) 1 SCC 700].
23. This view further stands reiterated in Jaishree rt Anant Khandekar vs. State of Maharashtra, (2009) 11 SCC 647, where the Apex Court was dealing with five dying declarations, which were found not to be in variance with each other.
24. Further in Puran Chand vs. State of Haryana, (2010) 6 SCC 566, Apex Court has again summarized its view in the following terms:-
"The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in replying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...20...
the success of investigation or which may be negligent while recording the dying declaration. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It .
cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. The court has to weigh all the of attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. The courts must bear in mind that each criminal trial is an individual rt aspect. If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration.
(Emphasis supplied)"
25. However, where there is variation in the dying declaration (two in question), the Apex Court has held any conviction to be bad in law. [Dandu Lakshmi Reddy vs. State of A.P. (1999) 7 SCC 69 and Sanjay vs. State of Maharashtra, (2007) 9 SCC 148].
26. Further, where the prosecution version differs from the statement of deceased, dying declaration cannot be used for convicting the accused [Paniben (supra) and ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...21...
State of Rajasthan v. Shravan Ram and another, (2013) 12 SCC 255].
27. The aforesaid view has been reiterated in Jai .
Karan vs. State of Delhi (MCT), (1999) 8 SCC 161, Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165 and Mohammed Asif vs. State of Uttaranchal, (2009) 11 SCC 497.
of
28. The Constitutional Bench of the Apex Court in Laxman vs. State of Maharashtra, (2002) 6 SCC 710, rt while considering the conflict in Paparambaka Rosamma vs. State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji vs. State of Gujarat, (1999) 9 SCC 562, came to the conclusion that law laid down in the latter was the correct law and simply because the Doctor has not recorded/made endorsement that the deceased was in a fit state of mind to make the statement in question, other material on record to indicate that the deceased was fully conscious and capable of making statement cannot be ignored. This view has been reiterated in Ravi and another vs. State of T.N. (2004) 10 SCC 776; and Kamalavva and another vs. State of Karnataka, (2009) 13 SCC 614.
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29. In Shaik Nagoor vs. State of Andhra Pradesh represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2008) 15 SCC 471, the Apex Court .
held that where the Judicial Magistrate and the Police officer had given detailed description and the witnesses were not cross-examined on the point of fitness of the deceased, plea taken by the accused that the deceased of was not fit to make the statement in the given circumstances was untenable.
30.
rtIn Sukanti Moharana
(2009) 9 SCC 163,
vs. State of Orissa,
the Court was dealing with a case where the dying declaration was challenged on the ground that it did not contain thumb impression or signatures of the deceased. The challenge was repelled on the ground that medical evidence proved that the deceased was having 90% burn injuries on the thumb and therefore was in no position to sign the dying declaration. The Apex Court further reiterated its decision in Nallapati Sivaiah vs. SDO, (2007) 15 SCC 465, in the following terms:-
"18. ...This Court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...23...
of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion."
.
31. This view stands reiterated in Ongole Ravikanth vs. State of Andhra Pradesh, (2009) 13 SCC
647.
32. Further in Sohan Lal alias Sohan Singh and others vs. State of Punjab, (2003) 11 SCC 534, State of of Karnataka vs. Shariff, (2003) 2 SCC 473, Dayal Singh vs. State of Maharashtra, (2007) 12 SCC 452 and Kanti Lal vs. rt State of Rajasthan, (2009) 12 SCC 498, it has been held that it is not necessary that dying declaration is to be recorded before the Magistrate. The same can be recorded even before or by the police official. This view stands reiterated in Gulam Hussain and another vs. State of Delhi, (2000) 7 SCC 254.
33. The apex Court in Lakhan vs. State of Madhya Pradesh, (2010) 8 SCC 514 had an occasion to deal with two contradictory dying declarations made by the deceased. Finding the first one to have been recorded in presence of the close relatives of the accused, even though by an Executive Magistrate, the Court by ignoring the same, relied jupon the second dying declaration ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...24...
recorded by the police officer in holding the accused guilty of the crime charged for.
34. Dying declaration can be made any time, in the .
presence of anyone. It need not to be a Doctor, a Government Officer or an Executive Magistrate. So long as the victim is aware and fully conscious of what is being done and said, any statement made by her can be treated of as an evidence, it being a different matter, as to whether it requires corroboration or not. (See: Munnu Raja and rt another v. The State of Madhya Pradesh, (1976) 3 SCC 104; Ramawati Devi v. State of Bihar, (1983) 1 SCC 211).
35. Dying declaration need not be in the form of question and answer. Principles required to be adopted for recording the statement of deceased stand reiterated in Ram Bihari Yadav Vs. State of Bihar and others, (1998) 4 SCC 517, State of Karnataka vs. Shariff (2003) 2 SCC 473 and K.Ramachandra Reddy and another vs. The Public prosecutor, (1976) 3 SCC 618.
36. The apex Court in Dandu Lakshmi Reddy vs. State of A.P., (1999) 7 SCC 69 has held that when the sphere of scrutiny of the dying declaration is a restricted ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...25...
area, the Court cannot afford to sideline such a material divergence relating to this very occasion of the crime.
37. In Mohan Lal and others vs. State of Haryana .
(2007) 9 SCC 151, the Court disbelieved the statement made by the wife of the accused on the ground that not only it was vague but also there was no contemporaneous documentary or other material to prove dowry demands of prior to the incident.
38. In Maiben D/o Danabhai Tulshibai Maheria vs. rt State of Gujarat, (2007) 10 SCC 362, dealing with a case where death took place 25 days the Court was subsequent to the recording of the statement of the deceased, yet the same was taken to be a dying declaration.
39. In Ramakant Mishra @ Lalu & others vs. State of Uttar Pradesh, (2015) 8 SCC 299 the Court cautioned the prosecution to establish that every step for recording the dying declaration must be diligently complied with including alerting the Jurisdictional Magistrate of the occurrence of the incident.
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40. Applying the aforesaid principles of law, we find the factum of dying declaration to have been proven on record.
.
41. Testimony of Smt. Sarla Devi records that upon receiving information of the incident, she immediately rushed to the hospital, but found none to be present there.
Hence, she went to the house of the accused where she of found the deceased lying on the bed. Accused was also present. At that time, deceased, who was alive, stated rt that her husband, i.e. the accused, had burnt her by pouring kerosene oil on her. Thereafter, the deceased was taken to the hospital, from where, the accused ran away.
As advised, she took the deceased to the Civil Hospital, Baijnath, where she was declared dead.
42. Now significantly, this witness learnt about the incident at about 10 p.m. She immediately rushed to the spot, took charge and ensured that her daughter got adequate medical treatment. For some strange reason, the accused, as is evident from the testimony of this witness, never reported the matter to the police; family members of the deceased; neighbours; but instead, while his wife was alive, brought her back home. Not only that, ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...27...
when his mother-in-law took the victim, he ran away from the Ayurvedic Hospital, Paprola. No doubt, just two days prior to the incident, this witness had visited the house of .
her daughter, but then, such fact would make no difference, for she has explained that the accused used to maltreat the deceased. Such fact stands conclusively established by her.
of
43. Version of Smt. Sarla Devi is corroborated, on all counts, by Dalip Kumar (PW-2), brother of the deceased rt and Smt. Kavita Devi (PW-6), who further states that the Nurse, who attended to the deceased at the Private Hospital, Paprola, had asked the person attending the victim to take her to the Ayurvedic Hospital.
44. In fact such, version stands materially disclosed by Smt. Sunita Thakur herself, who initially attended to the victim at the Private Hospital. She does state that on 21.7.2009, at about 10-10.30 p.m., a person, carrying a lady, suffering from excessive burns, had come to the hospital and was advised to take the victim to the Ayurvedic Hospital, Paprola. She is categorical that the victim had narrated to her that she had been burnt with kerosene oil, which fact was also confirmed by the person ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...28...
(accused), who brought her to the hospital. On her asking, she telephonically informed the parents. It is true that the victim did not disclose to her that it was her husband who .
had set her on fire, but then, she does establish three facts: (i) the victim sustained burn injuries with kerosene oil, (ii) the victim had asked her parents to be informed, and (iii) this witness had asked the accused to take the of victim to the Ayurvedic Hospital, Paprola. All this is only reflective of the conduct of the accused. Why is it that he rt did not take the victim to the Ayurvedic Hospital, Paprola and bring her back home? Why is it that he did not inform the parents of the victim? Why is it that he ran away from the hospital, when the victim was carried by her mother?
All this remains unexplained.
45. Dying declaration, oral in nature, stands clearly established on record through the testimony of this witness as also the mother of the victim. The accused has taken a defence of suicide but from the suggestion put to the witness, it appears that the defence of bursting of stove, resulting into the injuries to the victim stands taken.
Now it is an admitted fact that the incident came to be occurred in the matrimonial house and the incident took ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...29...
place within 7 years of marriage. Presumption with regard to the commission of offence under the provisions of Indian Evidence Act would not lie against the accused but .
then the burden which the accused was required to discharge in view of Section 114 of the said Act never came to be established on record. Police did not find any such telltale signs on the spot.
of
46. We find the testimonies of the witnesses to be fully inspiring in confidence. Their version is clear, consistent rt exaggerations and cogent.
nor any
There are
embellishments,
neither
much
any
less
improvements. In natural course, they are disclosing the
events which took place on the spot resulting into the occurrence of the incident and the death of the deceased.
47. In the instant case, the dying declaration cannot be said to be out of malice. It was immediately brought to the notice of police.
48. But then, these facts alone have not weighed with the Court in arriving at its conclusions, for there is an eye-witness to the incident and that is daughter of the deceased, namely Simran (PW-15) aged 8 years, a student of 4th class, who has deposed as under:
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"My mother name was Kamla, who was married to Ramesh. It was about two years ago my father had come in drunken condition and beaten up my mother. It was during night time when Ramesh poured kerosin oil on my mother .
and my mother gone inside the room and thereafter Ramesh put on fire my mother with match box. Thereafter Ramesh put a blanket on my mother to save her. Thereafter my mother was removed to hospital. Thereafter my mother died. Today I have seen Ramesh who is standing the court.
Xx xx by Shri M.C. Thakur, Adv. Xx xx xx of Ramesh had constructed one new shop. It is correct that on the day when lentil was put my grand mother (Naani) had come. When my father was watering the lintel I was with him. It is rt correct that when I alongwith my father went towards the house then my mother was coming out while burning It is correct that while putting off the fire the hands of my father were also burnt. The shop is near to my house and adjoins to the road. When my father was watering to lintel he was not drunk. It is incorrect that mother and father was not having any dispute regarding the shop. It is incorrect that before this incident my father had also tried to snatch cani of kerosin oil 3-4 times and my father snatched the cani. It is incorrect that my statement was shown by the ld. P.P. and to make me understand the same. It is correct that prior this date, 2-3 times earlier had come with my Maussi and Naani."
49. The witness was found competent to depose in Court. Now, if we carefully peruse her testimony, she is categorical that it was the accused who after pouring the kerosene oil, had set his wife on fire. No doubt, in the cross-examination part, she does state that when she went ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...31...
with her father towards the house, she saw her mother come out burning. Thus, in our considered view, there is no contradiction. She is categorical that her father had set .
her mother on fire. It is only when the deceased came out, the accused was with this witness. Her statement is natural. It cannot be said that she was tutored to make such a statement. She has no reason to depose falsely.
of Yes, the accused did wrap a blanket to save the victim, but then this would not mean that he had not set her on fire.
50. rt It has come in the testimony of Ramesh Chand (PW-8) that kerosene oil came to be purchased by the victim from him.
51. Postmortem report (Ex.PW-7/A), so proved by Dr. Manoj (PW-7), records that the deceased, aged 33 years, had suffered severe burn injuries to the extent of 85% and died due to circulatory failure secondary to ante-
mortem burns.
52. The witnesses have established (i) the factum of the accused having burnt the deceased, (ii) the deceased having disclosed such fact to her mother and brother, with slightly different version to the Nurse, (iii) and the conduct of the accused in not ensuring proper ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...32...
medical treatment to the deceased. Now, all this conclusively establishes the guilt of the accused.
53. Now, in the instant case, the Nurse is .
categorical that the victim was in a position to communicate and had in fact asked her to inform her relatives. The victim had disclosed to her that she had been burnt with kerosene oil. Such statement was made of at a time when her husband was there. Significantly, she did not categorically state that it was an accident. Record rt does reveal that despite medical advice, the accused brought the victim home, rather than taking her to the hospital. Now, even at home, the victim, in the presence of the accused, had disclosed to her mother and brother that it was the accused who had set her on fire by pouring kerosene oil. Police came to reach the spot only when the victim had died, for such information was given from the Ayurvedic Hospital and not the Private Hospital, where the victim was taken by the accused.
54. The accused wants the Court to believe that it was a case of an accident, as the stove got burst, but then such defence cannot be said to have been probablized on record. No telltale signs of bursting of a stove were found ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...33...
on the spot. Had the accused not been guilty, he would not have run away from the spot, leaving his wife alone.
55. Defence of false implication, so taken by the .
accused, for not transferring the land in the name of the deceased, on the insistence of her mother, cannot be said to have been proven on record. There is nothing on record to establish that the accused owned any land adjoining to of the hospital or that the deceased or her mother had desired the same to be transferred as such.
56. rt From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for.
There is sufficient, convincing, cogent and reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses.
The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the ::: Downloaded on - 15/04/2017 20:49:46 :::HCHP ...34...
prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and .
hence is to be disbelieved.
57. Hence, in our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and of reliable piece of evidence.
58. Thus, the findings returned by the trial Court rt cannot be said to be based on correct and complete appreciation of material on record, which are reversed.
The appeal is allowed and we hold the accused guilty and convict him for having committed offences, punishable under the provisions Sections 498-A & 302 of the Indian Penal Code, for causing cruelty to the deceased and committing her murder.
59. Bail bonds furnished by the accused-convict stand cancelled. For the purpose of hearing him on the quantum of sentence, the appeal be listed on 2.8.2016.
He be produced in the Court on the said date. Copy of the judgment be supplied to the accused, free of cost.
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60. Assistance rendered by Mr. Yudhbir Singh, learned Amicus Curiae, is highly appreciable.
Appeal stands disposed of, so also pending .
application(s), if any.
(Sanjay Karol), Judge.
of
(Ajay Mohan Goel),
July 16, 2016(sd). Judge.
rt
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