Madhya Pradesh High Court
Ku. Sandhya Bai & Anr. vs The State Of M.P. on 20 March, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Division Bench: Hon'ble Shri Justice S. K. Gangele &
Hon'ble Smt. Justice Nandita Dubey
CRIMINAL APPEAL NO.1155/1994.
Ku. Sandhya Bai and another
Vs.
State of Madhya Pradesh
For appellant : Shri Ranjan Banerjee Advocate.
For Respondent : Shri A. N. Gupta, Govt. Advocate.
Whether approved for reporting: Yes/ No.
JUDGMENT
(Delivered on 21.03.2018) As per S.K. Gangele, J:
1. This appeal has been filed against the judgment dated 22.9.1994, passed by 1st Additional Sessions Judge, Mandla in S.T. No.21/1989. Trial Court convicted both the appellants mother-in-law and sister-in-law of the deceased for commission of offence punishable under Section 302/34 of IPC and sentenced for life imprisonment. During pendency of this appeal mother-in-law Shanti Bai has been died. Hence, appeal filed by Shanti Bai is abated.
2. Prosecution story in brief is that both the appellants used to quarrel with the deceased, who was daughter-in-law of appellant Shanti Bai. On the date of the incident 22.9.1988 when husband of the deceased went out side of the house both the accused persons entered the room and quarreled with the deceased. Thereafter, present appellant Sandhya poured kerosene on the deceased and her mother another accused ablaze 2 her by match stick. Crying of the deceased was heard by the neighbours. They reached on the spot and information was given to the police. Police Inspector reached at the spot and he recorded statement of the deceased. Thereafter, deceased was admitted at District hospital, Mandla. Her dying declaration was recorded by Executive Magistrate. On the next day i. e. on 23.9.1988 at about 12.55 O'clock the deceased was died. Police conducted investigation and filed charge sheet. Appellant abjured guilt and pleaded innocence. Trial Court relied on dying declaration of the deceased and other evidence and held appellant guilty for commission offence of murder and awarded sentence.
3. Shri Ranjan Banerjee, learned counsel for the appellant has submitted that conviction of the appellant is based on dying declaration of the deceased which is not reliable. The deceased received 100% burn injuries and as per evidence of neighbours the room in which the deceased received burn injuries was locked from in side. It is further submitted by the learned counsel that deceased must have put some resistance. However, there is no evidence to this effect. It is a case of suicide and the appellant being sister-in-law (nanad) has falsely been implicated in the case.
4. Shri A. N. Gupta, learned G. A. for the State has submitted that there are two dying declarations of the deceased. Subsequently dying declaration was recorded by Executive 3 Magistrate. Doctor has issued a certificate that the deceased was in fit mental condition to give dying declaration and there is other evidence on record. Hence, trial Court has rightly held appellant guilty for commission of offence and awarded proper sentence.
5. We have perused the evidence. Trial Court relied on dying declaration of the deceased Ex.P.14, which was recorded on 22.9.1988 at around 8.30 O'clock in the morning by Executive Magistrate (P. W.9). It is mentioned in the dying declaration that present appellant and her mother-in-law both had ablaze her. She further stated that present appellant poured kerosene on her and mother-in-law ablaze her by match stick at around 6.00 O'clock in the morning. There used to be quarrel in the house. I was insisting that I would cook my food separately, family members were not ready to do so. My father-in-law called me in the night and told me that I be sent to the house of my parents. In the morning my husband went away, appellants came in the room and they had quarreled with me. There was some scuffle and thereafter they had ablaze me.
6. S. P. Mishra Naib-Tahsildar P.W.9 deposed that on 22.9.1988, I was posted as Naib Tahsildar Mandla. S. D. O. Mandla had given me instruction to record dying declaration. Thereafter, I reached at the hospital, I called concerning Doctor and inquired that whether patient is in a fit mental condition to give dying declaration. He had given a certificate, which is 4 Ex.P.14 and signed the same. Patient was in a fit mental condition to give dying declaration. The persons who were present were directed to leave the room. Doctor had also left the room. Thereafter, I recorded dying declaration in the question answer form Ex.P.14 and signed the same. Deceased put her thumb impression because she was not able to sign the form. In his cross-examination he denied the suggestion put forth by the defence that the deceased was not in a fit mental condition to give dying declaration. There is another statement of the deceased Ex.P.6, which was recorded by the Investigation Officer P.W.10, who reached on the spot immediately. It is mentioned in the aforesaid statement that present appellant and mother-in-law both had ablaze the deceased due to quarrel in the house. She further stated that father-in-law tried to extinguish the fire.
7. The witnesses who are neighbours did not support the case of the prosecution to the effect that present appellant had killed the deceased.
8. Anoop Vasal P.W.1 deposed that I was standing out side of my house in the morning. I had noticed that smoke was coming out from second floor of the house of Murari Lal and heard the sound save me - save me. The sound was of a lady. Anil Jain was also there. Thereafter, I and Anil Jain entered the house of Murari Lal, we went to the room of incident which was of in the second floor. Murarilal pushed the door which was broken then 5 we heard the sound of a lady, she was saying give me water. Thereafter, Murarilal wrapped the body with quilt. We had asked what you have done, she replied give me water, I will not survive. Thereafter, I came to the ground floor. At that time Inspector Dubey reached there. Murarilal and Vijay had taken the deceased to the ground floor and they had taken the deceased to the hospital in Rikshaw. He further deposed that I did not ask anything from the deceased. He admitted that he signed seizure memo Ex. P. 1, Ex.P.2 and Ex.P.3 by which plain and red earth was seized. He also admitted that he signed Ex.P.4 and Ex.P.5.
9. Another witness Indra Kumar P.W.2, who is also neighbour of the deceased deposed that I heard the sound from the house of Murarilal save me save me. She was crying. I went to the house of Murarilal.
10. Dhannalal P. W. 4 deposed that son of Murarilal came to me. He was crying somebody had ablaze fire. Thereafter, we went to the house of Murarilal. Thereafter, Murarilal pushed the door, door was broken. At that time the deceased was alive. She was in burn condition. Murarilal asked her what you had done, she replied that she will not survive
11. Dr. R. K. Nema P.W.5, who performed autopsy of the deceased deposed that deceased received 100% burn injuries. There was no external injury on the body of the deceased and on internal examination, I noticed that brain was roasted. He further deposed that I had not noticed and resistance in the body. 6
12. Dr. Ms. Jyoti Agrawal P.W. 6 deposed that on the date of the incident I was posted at District hospital, Mandla. I examined the deceased. Before recording dying declaration I had issued a certificate that the deceased was in a fit mental condition to give dying declaration. Certificate is Ex.P.14 and I signed the same.
13. Anil Jain P. W. 7 another neighbour deposed that I had noticed that smoke were coming out from the house of Murari Lal and thereafter I went to the house of Murarilal and noticed that Murarilal and his son was breaking the door. After breaking the door we entered the house. We noticed that deceased was alive in burn condition. Murarilal asked her what you had done, she replied that she does not want to alive. Thereafter Murarilal wrapped her on quilt. He denied the fact that Daroga had asked any question from him.
14. Rajesh Kumar P.W.15 is the brother of the deceased. He deposed that family members of the deceased had demanded dowry from the deceased.
15. G. P. Dubey P.W.16 Station House Officer deposed that I received the information from the hospital about death of the deceased. Thereafter, merg was registered. Prior to this on 22.9.1988 Prakash had lodged the report which was registered at Sanha No.942, which is Ex.P.23 and I signed the same. I immediately reached on the spot and recorded the statement of the deceased Ex.P.24. She told me that her mother-in-law and 7 sister-in-law ablaze her. Thereafter, I prepared spot map. There is a long cross-examination of this witness. He further deposed that when I reached on the spot father-in-law of the deceased was present and body of the deceased was covered with quilt.
16. Neighbours turned hostile. They did not support the prosecution. They put their version that door where the deceased was burn was locked inside. However, this fact has not been mentioned in the statement of aforesaid witnesses recorded by the police under Section 161 of Cr. P. C. It appears that they had tried to give the benefit to the appellant. Investigation Officer, who conducted investigation did not mention the fact that door of the room of the deceased was broken because it was locked from inside. Neither any question was put to the witness that whether door of the room was locked from inside and such suggestion was also not given by the defence to the witnesses. Hence, in our opinion, the theory put forth by the defence that deceased committed suicide because door of the room of the deceased was locked inside and it was broken is unreliable. It is well settled principle of law that conviction can be based on dying declaration if it inspire confidence of the Court. The Apex Court in the matter of Pawan Kumar Vs. State of Himachal Pradesh reported in (2017) & SCC 780 has held as under:
"The High Court has relied on the decision in Gulzari Lal v. State of Haryana[13], and come to hold that a valid dying declaration may be made 8 without obtaining a certificate fitness of the declarant by medical officer.
22. It is demonstrable that the trial court has acquitted the accused by disregarding the version of parents of the deceased and other witnesses and treating the dying declaration as invalid and the High Court, on the contrary, has placed reliance on the testimony of the parents of the deceased, and the evidence of the village Pradhan and also given credence to the dying declaration.
23. As is seen, the non-reliance on the dying declaration by the learned trial Judge is founded on the reason that the deceased was not in a position to speak and there was no medical certificate appended as regards her fitness. That apart, the learned trial Judge has regarded the dying declaration as unacceptable and unreliable on the base that the deceased had sustained 80% burn injuries. The High Court has found the said approach to be absolutely erroneous.
24. The hub of the matter is whether the dying declaration Ex. Pw-10/A is to be treated as realiable or not. To appreciate the validity of the dying declaration, we have requisitioned the original record and had perused the same. On a careful scrutiny of the same, we find that the Head Constable had written what the deceased had spoken and thereafter the deceased had written that the accused alone was responsible for her death. The dying declaration, as has been recorded by the Head Constable, eloquently states about the constant teasing of the victim by the accused. PW- 10, Dr. Sanjay, has stood firm in his testimony that 9 the victim was in a fit condition to speak. Despite the roving cross-examination he has not paved the path of tergiversation. The trial court, as mentioned earlier, has disregarded the testimony of PW-10 on the ground that there is no certificate of fitness. In this context, reference to the Constitution Bench decision in Laxman v. State of Maharashtra[14] would be absolutely seemly. In the said case, the larger Bench, while stating the law relating to the dying declaration, has succinctly held:- "3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the 10 declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
25. In Atbir v. Government of NCT of Delhi[15], the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:-
"22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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 prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.11
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) 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 the basis of conviction, even if there is no corroboration."
26. Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as follows:-
"23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW 12
7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.
24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the unshattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11)."
27. Tested on the anvil of the aforesaid authorities, we find that there is no reason to disregard the dying declaration. The Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. The same has been recorded in presence of the doctor, PW-10, who had appended his signature. A certificate of fitness is not the requirement of law. The trial court has been swayed away by the burn injuries. It is worthy to note that there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. In Vijay Pal v. State (Government of NCT of Delhi)[16], the Court repelled the submission with regard to dying declaration made by the deceased who had sustained 100% burn injuries stating that:-
"22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had 13 immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat[17] wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance."
17. In the present case, one dying declaration was recorded by the Executive Magistrate. There is a certificate of Doctor that the deceased was in fit mental condition to give dying declaration. Neighbours also deposed that when we reached at the place of occurrence father-in-law of the deceased asked the question from the deceased and she replied the same, this fact proves that the deceased was able to speak, although she received 100% burn injuries.
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18. Whether patient who received 100% burn injuries is able to give dying declaration has been considered by Hon'ble the Apex Court in the matter of Ramesh and others Vs. State of Haryana reported in (2017) 1 SCC 529. The Apex Court has held as under:
"33. No doubt, the victim has been brought with 100% burn injuries. Notwithstanding, the doctor found that she was in a conscious state of mind and was competent to give her statement. Thus, the Magistrate had taken due precautions and, in fact, Medical Officer remained present when the dying declaration was being recorded. Therefore, this dying declaration cannot be discarded merely going by the extent of burns with which she was suffering, particularly, when the defence has not been able to elicit anything from the cross-examination of the doctor that her mental faculties had totally impaired rendering her incapable of giving a statement."
19. In the aforesaid judgment Hon'ble Apex Court has also considered the fact that generally in criminal cases witnesses turned hostile and there may be various reasons for this effect.
20. In the present case, there is a dying declaration of the deceased, which was recorded by the Executive Magistrate. There is another statement of the deceased which was recorded by the Investigation Officer. The trial Court has analyzed the evidence in detail and after appreciation of evidence has held appellant guilty. In our opinion, the judgment passed by the trial Court is in accordance with law. Consequently, we do not find any merit in this appeal. It is hereby dismissed. Appellant is on 15 bail, her bail bonds are hereby canceled. She is directed to surrender before the trial Court for facing remaining sentence. Let a copy of this judgment be sent to the trial Court for compliance.
(S.K. Gangele) (Nandita Dubey)
JUDGE JUDGE
kkc
Digitally signed by KRISHAN KUMAR CHOUKSEY
Date: 2018.03.22 16:41:33 +05'30'