Himachal Pradesh High Court
Rakesh Kumar & Another vs State Of Himachal Pradesh on 8 April, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.103 of 2009 Reserved on : 30.3.2015 .
Date of Decision : April 8, 2015 Rakesh Kumar & another ...Appellants.
Versus State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting? Yes. 1 For the Appellants : Mr. N.S. Chandel, Advocate.
For the Respondent : Mr. Ashok Chaudhary and Mr. V.S. Chauhan, Additional Advocates General.
Sanjay Karol, Judge Appellants-convicts Rakesh Kumar and Ram Piari, hereinafter referred to as the accused, have assailed the judgment dated 7.5.2009, passed by Additional Sessions Judge (2), Kangra at Dharamshala, Himachal Pradesh, in Sessions Trial No.23-P/VII/2008, titled as State of Himachal Pradesh v. Rakesh Kumar and others, whereby they stand convicted of the offence punishable under the provisions of Sections 109, 302 & 498A of the Indian Penal Code, and sentenced as under:
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 17:58:14 :::HCHP
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Accused Rakesh Kumar
Section Sentence Imposed
302 read with Imprisonment for life (rigorous) and
.
Section 109 of fine of `30,000/-, and in default of Indian Penal payment thereof, to further undergo Code imprisonment for a period of two years./ 498A of the Imprisonment for a period of three Indian Penal years and fine of `5,000/-, and in Code default of payment thereof, to further undergo imprisonment for a period of six months.
Accused Ram Piari Section 302 read with Section 109 of Indian Penal Code to Sentence Imposed Imprisonment for life (rigorous) and fine of `30,000/-, and in default of payment thereof, to further undergo imprisonment for a period of two years.
498A of the Imprisonment for a period of three Indian Penal years and fine of `5,000/-, and in Code default of payment thereof, to further undergo imprisonment for a period of six months.
2. It is the case of prosecution that on 22.3.2008, against the wishes of the parents, accused Rakesh Kumar married Reena (deceased). On account of caste factor, such marriage was not acceptable to the parents of Rakesh Kumar. On 4.7.2008, deceased lodged report against her husband and parents-in-law, alleging cruelty, maltreatment and atrocities. On 6.7.2008, parties met at the Police Station for an amicable resolution of the dispute. Since no conclusion could be arrived at, parties agreed to meet ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...3...
again, at the Police Station on 11.7.2008. However, same day (6.7.2008), deceased was brought, in an emergency to .
the Community Health Centre, Palampur, for having suffered serious burn injuries. Dr. Vinay Mahajan (PW-6), who first attended to her sent Ruka (Ex.PW-6/A) to Police Station, Palampur. ASI Nardev Singh (PW-14) immediately rushed to the hospital and in the presence of Naib Tehsildar Manoj Kumar (PW-4) and Dr. Vinay Mahajan, got recorded statement of Reena Devi (Ex.PW-4/A). Finding Reena Devi to have sustained severe and serious burn injuries, Dr. Mahajan, who issued MLC (Ex.PW-6/B), referred her for treatment at the Medical College, Tanda. Eventually, Reena succumbed to her injuries on 14.7.2008. Postmortem of the dead body was got conducted and report (Ex.PW-14/J) taken on record.
3. Investigation revealed that accused Rakesh Kumar, on the instigation and abetment of his parents, had set the deceased on fire by pouring the kerosene oil.
During investigation, a can containing kerosene oil, match stick, match box and other incriminating material were taken into possession by the Investigating Officer, in the presence of independent witness Punnu Ram (PW-3) and police official Ramesh Kumar (PW-9). Report of the Forensic ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...4...
Science Laboratory (Ex. PW-10/B) was obtained by the police. With the completion of investigation, which prima .
facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
4. Accused Rajesh Kumar, Prem Chand and Ram Piari were charged for having committed offences punishable under the provisions of Sections 109, 302/34 & 498A/34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.
5. In order to establish its case, prosecution examined as many as 14 witnesses and statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which all the accused took defence of innocence and false implication.
Accused Rakesh Kumar also took the following defence:
"On 3/7/08 Reena went to Hospital and did not return. I on telephone went to Police Station where there were relatives of Reena."
6. Based on the testimonies of the witnesses and other evidence on record, trial Court found the prosecution to have proved its case, beyond reasonable doubt, only against accused Rakesh Kumar and Ram Piari, hence convicted and sentenced them as aforesaid. However, accused Prem Chand was acquitted on all counts. Hence, ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...5...
the present appeal by accused Rakesh Kumar and Ram Piari.
.
7. Court found the prosecution to have proved complaints (Ex. PW-10/E & PW-10/F) made by the deceased as also the dying declaration (Ex.PW-4/A). Significantly, Court found that there was no direct evidence against accused Prem Chand, in relation to any of the charged offences.
8. Having heard learned counsel for the parties as also perused the record, we are of the considered view that appeal needs to be allowed partly. We are of the considered view that insofar as charge of murder is concerned, there is no direct evidence against accused Ram Piari. We may also record that State has preferred not to file any appeal against the judgment of acquittal of Prem Chand.
9. In relation to an offence, punishable under the provisions of Section 498A of the Indian Penal Code, prosecution case primarily rests upon the testimonies of Ajudhiya Devi (PW-1), Prem Kumar (PW-2), Dy.S.P. Badri Singh (PW-10) and ASI Shyam Lal (PW-13). Conjoint reading of testimonies of these witnesses clearly reveals that accused Rakesh Kumar married the deceased in a temple on 22.3.2008. Evidently, parties had eloped and marriage ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...6...
was performed against the wishes of the parents. The matter was also reported to the police. However, they took .
a decision of living their own life.
10. Ajudhya Devi states that on 3.7.2008, Reena Devi (deceased) called her from the Police Station, disclosing that she had been beaten up by her husband and her parents-in-law. Her only fault being that she belonged to a lower caste. She states that the accused or his parents did not turn up at the Police Station either on 4th or 5th of July, 2008. However, on 6.7.2008, when they visited the Police Station alongwith the Pradhan of Gram Panchayat, Latwala, Rakesh and his parents came, when it was agreed that endeavour shall be made to have the matter resolved amicably. It has come in her version that on 4.7.2008 and 5.7.2008, that Reena stayed with her parents but on 6.7.2008, accused Rakesh Kumar took her and made her stay with him in his rented accommodation. From the version of this witness, it is evident that marriage was not acceptable to the parents of accused Rakesh Kumar and as such they had expressed their desire of divesting him of all rights in the property. Apparently parents of Rakesh Kumar were not willing to take Reena to their house.
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11. Dy. S.P. Badri Singh (PW-10) is the Police Officer before whom Reena Devi had lodged a written report, .
venting out her grievances against her husband and in-
laws. He categorically states that on 4.7.2008, Reena Devi met him at Police Station, Palampur and by filing written applications (Ex. PW-10/E and Ex. PW-10/F) sought intervention for settlement of the issues with her in-laws.
Accused did not come to the police station on 5.7.2008, but he came only the next day. He is clear that with the intervention of certain persons, though he tried to resolve the controversy, but the matter could not be settled. Reena wanted to go to her in-laws' place, which was categorically refused and resisted by her father-in-law and mother-in-law, who were of the view that the couple could reside anywhere, separately. The parties were bound down and asked to return on 11.7.2008. Document to such effect was also drawn.
12. Version of Badri Singh is corroborated by ASI Shyam Lal. He also clarifies that deceased had written two applications, which were marked to him by the SHO.
Despite his calling, accused Rakesh Kumar did not come to the Police Station on 4.7.2008 and 5.7.2008 and it was only on 6.7.2008 that the parties came to the police station ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...8...
alongwith the Pradhan, when certain terms were reduced into writing (Ex.PW-13/A). Even he states that despite .
Reena desiring to go to the house of her in-laws, she was not allowed. However, her in-laws were of the view that the couple could reside anywhere else.
13. It is true that police did not register any FIR on the basis of complaints (Ex. PW-10/E and 10/F). But then, it stands explained by these police officials that they were kept in the complaint register. It is equally true that the register has not been produced in Court, but however, factum of the deceased and the accused having met in the Police Station where certain terms were reduced into writing (Ex.PW-13/A) cannot be disputed. The document is signed by all the accused persons, Pradhan, the deceased and her parents. All of the relevant prosecution witnesses have unrebuttedly disclosed and proved such fact. This document categorically records that (i) on 25.3.2008, accused Rakesh Kumar married the deceased; (ii) a dispute emerged between Rakesh Kumar and his parents; (iii) as a result of which deceased has lodged a complaint at the Police Station, Palampur; (iv) time was sought for getting the dispute amicably resolved; (v) both the parties ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...9...
undertook to remain present at the Police Station on 11.7.2008.
.
14. By comparing the signatures on Ex. PW-10/E and PW-10/F with that of compromise (Ex.PW-13/A), learned counsel for the appellant wants the Court to believe that the complaints placed on record by the police are not the ones, which were actually filed by the deceased. We are not inclined to except such submission. Reena Devi was a teacher. Documents (Ex. PW-10/E & PW-10/F) are written in Hindi, and at the place of her signatures, in English she has only put her initials. There are no signatures of hers in document (Ex. PW-13/A). She has simply written her full name in English. We see no reason to disbelieve the testimony of the police officials, more so in the light of the testimony of Ajudhya Devi, that the complainant was maltreated by her husband and more particularly by her mother-in-law.
15. Reena Devi who belonged to a lower caste was not acceptable as daughter-in-law in the house of accused Rakesh Kumar. In complaint (Ex. PW-10/F), she has highlighted the atrocities, cruelties and the maltreatment meted out by her husband. She is categorical that accused Rakesh Kumar not only subjected her to cruelty but also ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...10...
physical assaults. Accused Ram Piari (mother-in-law) asked the deceased to get `5 lacs from her parents, only .
whereafter would have been allowed to enter their house.
Trial Court has also extracted a portion of complaint (Ex.PW-10/E), in his own words, which reads as "accused Rakesh had been beating her and had threatened to set her to fire and one day her foot was burnt. His mother visited their rental quarter everyday and she and Rakesh beat her and threated that she would be killed and her body would be hanged with a fan. They also coerced her to bring 5 lakhs from her parents otherwise they would say that she had committed suicide. His mother also takes Rakesh to her house and he has threatened that he would take students from Mainjha and Dharamshala Colelges and would get her brothers and family members killed. She apprehended that if anything occurred to her family members, Rakesh and his family members would be responsible". Grievance made out in the second complaint is against accused Rakesh Kumar, who calls her by her caste (Chamaar), to which she belonged to.
16. Certainly, accused Rakesh Kumar and Ram Piari, by their willful conduct have caused cruelty to the deceased, who was young and newly married and wanted ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...11...
to live her life with her husband, in the house of her in-laws, where her husband was residing prior to their marriage.
.
Illegal demands and cruelty were persistent. She was beaten up, abused, assaulted and subjected to harassment and cruelty, in every aspect of the form. Coming from the lowest strata of the society, she wanted to live a happily married life with dignity. But however, her dreams got shattered with the cruel behaviour on the part of her husband and his family. Though she was educated and worked as a teacher, yet was unacceptable only on account of the curse, for which she cannot be held responsible, for having been born in the family of her parents. Only under compulsion, deceased reported the matter to the police.
Initially, she never involved her parents. Only under extreme compulsion, on 4.7.2008 did she report the matter to the police and her parents.
17. Conduct of the accused evidently reflects their culpable mental state. On 4.7.2008 and 5.7.2008, they did not respond even to the calls of the police. On 6.7.2008, after admitting the factum of the deceased having lodged complaints with the police, under assurance, Rakesh Kumar took her and made her stay in the accommodation so taken on rent by him.
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18. In the teeth of this evidence, in our considered view, prosecution has been able to establish, beyond .
reasonable doubt, the factum of both the appellants of having committed an offence, punishable under the provisions of Section 498A of the Indian Penal Code.
19. The question, which still needs to be considered, is as to whether prosecution has been able to establish, beyond reasonable doubt, the charge of murder against accused Ram Piari and Rakesh Kumar. To establish the same, prosecution seeks reliance upon dying declaration (Ex. PW-4/A) and corroborative evidence in the shape of recovery of tin containing kerosene oil, match box, etc.
20. Dying declaration (Ex. PW-4/A) was recorded by ASI Nardev Singh, in the presence of Dr. Vinay Mahajan, Naib Tehsildar Manoj Kumar and Prem Kumar (PW-2).
According to the learned counsel, the dying declaration is shrouded by the following suspicious circumstances: (i) it was made in the presence of relatives; (ii) there is contradiction in the oral testimonies of the witnesses; (iii) deceased could not have signed the dying declaration, as even according to the doctor, she was unable to do so, on account of burn injuries; (iv) even though at 8.20 p.m., ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...13...
deceased was referred for special treatment to Tanda Hospital, but her statement was recorded at 9.05 p.m. .
21. Law with regard to dying declaration is now well settled. In Jaishree Anant Khandekar vs. State of Maharashtra, (2009) 11 SCC 647, a comparative study of 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 r one of the soliloquies in Shakespeare's King John, when fatally wounded Melun wails:
'Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away 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.::: Downloaded on - 15/04/2017 17:58:14 :::HCHP
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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 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 r 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 brought out a 'Digest of the Law of Evidence' and its introduction is of considerable interest even today. The author wrote that English Code of Evidence is modelled on the Indian Evidence Act 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, ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...15...
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."
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 r 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, 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.
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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...16...
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:-
(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 r 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 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 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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...17...
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 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 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, (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."
22. 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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...18...
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. 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 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 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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...19...
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 .
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 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 veracity 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) ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...20...
23. 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 earlier decision in Ram Nath vs. State of Madhya Pradesh, AIR 1953 SC 420, affirmed the aforesaid view.
24. 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. 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."
"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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...21...
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 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).
(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 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).
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(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).
(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 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 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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...23...
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."
25. However, where the prosecution version differs from the statement of deceased, dying declaration cannot be used for convicting the accused [Paniben (supra)].
26. 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.
27. The Constitutional Bench of the Apex Court in Laxman vs. State of Maharashtra, (2002) 6 SCC 710, 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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...24...
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.
28. 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 witnesses were not cross-examined on the point of fitness of the deceased to give dying declaration plea taken by the accused that the deceased was not fit to make the statement, under the circumstances of that case, was untenable.
29. In Maiben D/o Danabhai Tulshibai Maheria vs. State of Gujarat, (2007) 10 SCC 362, the Court was dealing with a case where death had taken place 25 days after recording of the statement of the deceased and the same was taken to be a dying declaration.
30. Further in Sohan Lal alias Sohan Singh and others vs. State of Punjab, (2003) 11 SCC 534, State of Karnataka vs. Shariff, (2003) 2 SCC 473, Dayal Singh vs. ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...25...
State of Maharashtra, (2007) 12 SCC 452 and Kanti Lal vs. 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.
31. 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 on record to prove dowry demands prior to the incident.
32. In Java Beans vs. Union Territory of Pondicherry, (2010) 1 SCC 199, the Apex Court was dealing with the case of an accused who was charged of having poured kerosene oil on his wife and then set her on fire.
The accused husband was charged for having committed an offence punishable under Section 302, IPC. The accused assailed the findings of conviction on the ground that prosecution had examined only interested witnesses and also dying declaration was tutored, promoted and product ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...26...
of the 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)
33. In Sukanti Moharana vs. State of Orissa, (2009) 9 SCC 163, 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 ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...27...
courts to find that the deceased was in a fit state 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."
34. This view stands reiterated in Ongole Ravikanth vs. State of Andhra Pradesh, (2009) 13 SCC 647.
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. Prosecution evidence has to be appreciated in the backdrop of the above stated legal position.
37. It has nowhere come in the testimony of the witnesses, before whom or who recorded the dying declaration, that the deceased was either under any fear, threat or was in any manner tutored. There was no pre determination or due deliberation of mind.
38. It has come on record that at the time when statement was recorded, Ajudhya Devi and Punnu Ram were present, but then there is no evidence of tutoring. We ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...28...
find dying declaration to have been scribed by ASI Nardev.
However, there is a minor contradiction with regard to the .
person who spoke with the deceased. The variation is in the statement of Prem Kumar, Naib Tehsildar Manoj Kumar and Dr. Vinay Mahajan. We find that insofar as involvement of accused Rakesh Kumar is concerned, there is no contradiction at all in the content of the statement.
Accused Rakesh Kumar specifically named in the dying declaration. He set the deceased on fire, at the time when none else was present in the house, as is so stated by the victim herself.
39. We are not inclined to accept the version of Ajudhya Devi and Prem Kumar that accused Rakesh Kumar and his parents had set the deceased on fire, in view of the categorical statement of Manoj Kumar, according to whom deceased had disclosed that "she was set ablaze by her husband and asking that she be rescued and that she did not want to die". Only after refreshing memory, the doctor could state the deceased to have disclosed that her in-laws had poured kerosene and she was set ablaze by her husband with a match stick. But, in the dying declaration, deceased clarified that at the time when she was burnt, her husband was alone at home. Dying declaration simply ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...29...
states that her in-laws had poured kerosene, but then was it the father-in-law or the mother-in-law. There is no certainty .
about the same. She qualified and clarified her previous statement. She stated that at the time when she was set ablaze, only her husband was in the house.
40. In this view of the matter, we express our doubt about the culpable state of accused Ram Piari, in relation to the charge of murder, in furtherance of her common intention.
41. It is true that dying declaration contains signatures of the deceased. The doctor opined, when he first examined the deceased, that she was suffering from 80% superficial deep burns. MLC (Ex.PW-6/B) itself records that the deceased could not sign as her hands were burnt.
We notice that the doctor has categorically deposed the deceased to have signed document (Ex. PW-4/A) in his presence. Initially there was no complaint of burning/ murder against anyone. Only when ruka was sent from the hospital and statement, under the provisions of Section 154 of the Code of Criminal Procedure (Ex. PW-14/A), was recorded, the Investigating Officer, after taking all precautions by associating a gazetted officer, got statement of the deceased recorded. Apparently, deceased appended ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...30...
her signatures in a broken form. She appears to have only written her name as 'Reena'. Prior to recording of the .
statement, doctor had certified her to be fit. Even Naib Tehsildar Manoj Kumar has clarified that statement was signed by the deceased. It has come on record that after 7.7.2008, deceased was not fit to make any statement.
42. It is true that document (Ex. PW-6/A), whereby deceased was referred for treatment to the hospital at Tanda, records the timing to be 8.20 p.m., but then one cannot ignore the fact that it takes time for the formalities to be completed before the patient is discharged from the hospital for being transported to the referral hospital. It has come on record that the Investigating Officer moved an application (Ex.PW-6/C) for getting the statement of the deceased recorded and only after the doctor certified the deceased to be fit, her statement was recorded at the earliest opportune time. Record reveals that the deceased was admitted to the hospital at 8.15 p.m. All formalities had to be completed, which took less than an hour. It is not even suggested to the doctor that the statement was not recorded in the hospital or that at the time of recording of said statement, deceased stood discharged from the ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...31...
hospital. Thus, time cannot be said to be a relevant factor for discarding the document.
.
43. Law with regard to circumstantial evidence is now well settled. It is a settled proposition of law that when there is no direct evidence of crime, the guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which the conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with the crime. All the links in the chain of circumstances must be established beyond reasonable doubt, and the proved circumstances should be consistent, only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, the Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence. [See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus State of Kerala, (2012) 2 SCC 399;
Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622, Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; and Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116.].
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44. Also, apex Court in Padala Veera Reddy v.
State of Andhra Pradesh and others, 1989 Supp (2) SCC .
706, Court held that when a case rests upon circumstantial evidence, following tests must be satisfied:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(Also see: Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172; Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259; and Harishchandra Ladaku Thange v. State of Maharashtra, (2007) 11 SCC 436).
45. Each case has to be considered on its own merit. Court cannot presume suspicion to be a legal proof.
In the absence of an important link in the chain, or the chain of circumstances getting snapped, guilt of the accused cannot be assumed, based on mere conjectures.
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46. The apex Court in State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 286, while cautioning the Courts .
in evaluating circumstantial evidence, held that if the evidence adduced by the prosecution is reasonable, capable of two inferences, the one in favour of the accused must be accepted. This of course must precede the factum of prosecution having proved its case, leading to the guilty of the accused.
47. Both Punu Ram and ASI Ramesh Kumar, in their unrebutted testimonies, have corroborated the version of the Investigating Officer of having effected recoveries of steel glass (Ex.P-2), can (Ex. P-1), match box (Ex. P-3) and two match sticks (one live and one burnt)(Ex.P-4 and P-5, respectively) alongwith clothes of the deceased. It has come on record that the sealed articles were kept in the Malkhana by MHC Ranjit Singh (PW-8). Malkhana register (Ex.PW-8/B) is on record to this effect. Articles were sent for chemical analysis to the Forensic Science Laboratory, Junga, vide Road Certificate (Ex. PW-8/A) and deposited by there Karam Chand (PW-7). Report of the Chemical Analyst (Ex. PW-10/B) proves that kerosene oil was found in the plastic can (Ex.P-1) and packet containing burnt clothes of deceased (Ex.P-4).
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48. We are not inclined to accept the submission of the learned counsel. We are of the considered view that in .
the instant case no ground for interference is made out.
The dying declaration, corroborated by independent witnesses, proves the guilty intent of the accused in murdering his wife. This fact stands established on record, beyond reasonable doubt.
49. Thus, from the conjoint reading of testimonies of all the witnesses and the documentary evidence placed on record, it is evident that on 6.7.2008, accused Rakesh Kumar, with criminal intent, set his wife (deceased) on fire in his house. It has nowhere come that the deceased was deranged or had suicidal tendency. She was newly married and had no reason to set herself on fire. She wanted to live a dignified life in the house of her husband, but on account of social stigma and resistance from the parents of her husband, she was not allowed to do so. She had already approached the police, disclosing and expressing apprehension to her life. Accused himself had sought time from the police to resolve the issue. He took the deceased alongwith himself to his rented accommodation. He alone was at home at that point in time. Simply because he brought the deceased to the hospital, would not render the ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...35...
prosecution case to be false or doubtful. It would not negate his criminal intent.
.
50. In our considered view, prosecution has been able to establish guilt of accused Rakesh Kumar, in relation to offences, punishable under Sections 302 read with Section 109 and 498A of the Indian Penal Code, and that of accused Ram Piari, in relation to offence punishable under the provisions of Section 498A of the Indian Penal Code, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, not only ocular but also corroborative in the shape of recovery of weapon of offence.
51. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court, with regard to accused Rakesh Kumar. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. However, with regard to accused Ram Piari, in our considered view, the prosecution has been able to prove the charge only under the provisions of Section 498A of the Indian Penal Code ::: Downloaded on - 15/04/2017 17:58:14 :::HCHP ...36...
and not the charge of murder. Hence, the appeal qua accused Rakesh Kumar is dismissed and qua accused .
Ram Piari is partly allowed, as aforesaid. She is acquitted of the offence punishable under the provisions of Section 302 read with Section 109 of the Indian Penal Code.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
April 8, 2015(sd) Judge.
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