IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 411 of 2008 Reserved on: February 27, 2015. . Decided on: February 28, 2015. State of Himachal Pradesh ......Appellant. Versus Dharam Singh .......Respondent. Coram The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? Yes. For the appellant: Mr. Ramesh Thakur, Asstt. AG. For the respondent: Mr. Deepak Kaushal, Advocate. ---------------------------------------------------------------------------------------------- Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 17.3.2008, rendered by the learned Addl. Sessions Judge, Sirmour at Nahan, H.P. in Sessions Trial No. 14-N/7 of 2006, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 452, 376 read with Sections 511, 302 and 506-II of the IPC, has been acquitted.
2. The case of the prosecution, in a nut shell, is that on 4.4.2006 at about 11:00 PM at Rampur Banjaran, deceased Anuradha wife of PW-1 Rajinder Kumar and mother of Mrinal Gupta (PW-11) along with her son and daughter were present in her house. She was sleeping in her house along with children when the accused went there and knocked at the door of the house of the deceased. When the deceased opened the door of her house, the accused entered into the house and bolted the room from inside. The accused tried to commit rape and also gave beatings to her. Thereafter, the accused poured kerosene oil upon the deceased from kerosene bottle which he was carrying and lit the match stick setting the deceased on fire.
In the meantime, Mrinal Gupta (PW-11) daughter of the deceased woke up and saw the deceased on fire. The accused ran away from the spot. The fire was extinguished by Mrinal Gupta (PW-11) by pouring water on the deceased and the clothes of the deceased were changed and kept on a gunny bag. One gent’s underwear and belt were also found lying in the room by Mrinal Gupta (PW-11). There was smell of kerosene oil from the clothes of the deceased. The deceased alongwith Mrinal Gupta (PW-11) went to the house of Kusum Devi (PW-6), the mother of the deceased. They alongwith Sanjeev Kumar (PW-9), the brother of the deceased took the deceased to Pawar Clinic at Paonta Sahib where the deceased was examined by Dr. Inderjeet Singh (PW-2) who advised to take the deceased to better hospital having good facilities. Kusum Devi (PW-6) deputed her son Sanjeev Kumar (PW-9) to inform Rajinder Kumar (PW-1), the husband of the deceased, who was on duty at Mineral Water Factory, Dhaula Kuan. On receipt of such information, Rajinder Kumar (PW-1) went to Dhaula Kuan and saw the deceased to be badly burnt and lying in the vehicle. The deceased was accompanied by Kusum Devi (PW-6). The deceased was taken to hospital at Nahan at about 6:30 AM where she was examined by Dr. A.K.Gupta (PW-3). She was found to have suffered superficial burns grade one and two approximately 80% to 90% regarding which MLC Ext.
PW-3/A was issued by him and the deceased was referred to PGI, Chandigarh.
3. ASI Shiv Ram (PW-15) the then Investigating Officer, Police Post, Gunnughat, Nahan went to Zonal Hospital, Nahan and obtained MLC of Anuradha and found that the deceased was not fit to make statement. The deceased was thereafter taken to PGI, Chandigarh by Rajinder Kumar (PW-1), Kusum Devi (PW-6) and Sanjeev Kumar (PW-9), where the deceased was examined by Dr. Ajay Kumar (PW-10), Senior Registrar on 6.4.2006. She was found to have sustained thermal burns on 75% of body surface area regarding which, case summary Ext. PW-
10/A, was issued by him. On 9.4.2006, when the deceased regained some consciousness, she told her husband Rajinder Singh (PW-1) that the accused had tried to commit rape with her and when she resisted then she was set on fire by the accused by pouring kerosene oil. This fact was disclosed by Rajinder Singh to Kusum Devi (PW-6), his mother-in-law.
The deceased in the evening of 9.4.2006 also disclosed the same fact to Kusum Devi (PW-6). She also disclosed that the accused has threatened the deceased not to disclose the incident to anyone otherwise the children of the deceased will meet the same fate. The accused was also admitted in the hospital at Paonta Sahib and was examined by Dr. Amitabh Jain (PW-5). He was found to have sustained burn injuries on both the hands 4% to 5%. He was discharged from the hospital on 20.4.2006, regarding which admission chart Ext. PW-5/A and OPD slip Ext. PW-5/B were issued. The statement of Rajinder Kumar (PW-1) under Section 154 Cr.P.C. Ext. PW-1/A was recorded on 9.4.2006 by ASI Krishan Kumar .
(PW-18). FIR Ext. PW-14/A was registered at Police Station Paonta Sahib.
Insp. Khazana Ram (PW-14) submitted an application before Sh.
R.K.Mehta (PW-19) the then JMIC, Chandigarh for recording the statement of deceased. After the deceased was declared fit to make statement by the Medical Officer, he recorded the statement of deceased Ext. PW-19/A, which is also signed by the doctor. The deceased died at PGI Chandigarh on 14.4.2006 due to burn injuries sustained by her. The post mortem examination of the body of the deceased was conducted by Sanjeev Sehgal (PW-4). The investigation was completed and challan was put up after completing all the codal formalities.
4. The prosecution, in order to prove its case, has examined as many as 20 witnesses. The accused was also examined under Section 313 Cr.P.C. He has denied the prosecution case and his involvement in the incident. The learned trial Court acquitted the accused, as noticed hereinabove.
5. Mr. Ramesh Thakur, learned Asstt. Advocate General, appearing on behalf of the State, has vehemently argued that the prosecution has proved its case against the accused beyond reasonable doubt. On the other hand, Mr. Deepak Kaushal, Advocate for the accused has supported the judgment of the learned trial Court dated 17.3.2008.
6. We have heard learned counsel for both the sides and gone through the records of the case carefully.
7. PW-1 Rajinder Kumar, testified that on 5.4.2006, his brother-in-law Babu came to him while he was on duty in the Mineral Factory.
He told him that his wife has sustained burn injuries. He asked him to reach at Dhaula Kuan. He immediately rushed to Dhaula Kuan alongwith his brother-in-law. He saw his wife was badly burnt and was lying in the vehicle alongwith his mother-in-law. At about 6:30, he took her to Nahan hospital. The doctor at Nahan hospital referred her to PGI, Chandigarh and he took her to PGI, Chandigarh where she was admitted. On way to PGI, she told him that she has sustained injuries by felling of kerosene lamp and also stated that the fire was caught by candle. On 9.4.2006 at about 12 noon when she became conscious, she told her mother-in-law that Dharam Singh on 4.4.2006 at about 11:00 PM came to her house and forcibly attempted to commit rape with her. She also told that she refused his request for having sex due to which he sprinkled kerosene oil from a bottle and set her on fire by lighting match stick. The accused also threatened the deceased that if she would tell anybody about this incident he will also do the same thing with her children.
In his cross-examination, he deposed that on 5.4.2006 when he went to Dhaula Kuan, his wife was conscious and talking. On his asking at Dhaula Kuan, his wife had told him that she had received injuries on account of felling of a kerosene lamp. He also stated that at Nahan Hospital also, the doctor has inquired that how she was burnt, on which she told that she had received injuries by accident. His wife has not told him that the accused .had tried to commit rape with her or that he sprinkled kerosene oil on her. He had gone to purchase medicines and when he came back his mother-in-law told him as such.
8. PW-2 Dr. Inder Jeet Singh testified that on 5.4.2006 at about 4:30 AM, a lady was brought to his clinic having burn injuries over her body. Three-four persons were accompanying her. Her condition was very serious. He advised her to go to better hospital.
9. PW-3 Dr. A.K.Gupta, deposed that on 5.4.2006 at about 7:15 AM, he examined Anuradha wife of Rajinder Kumar and observed alleged history of accidental fire. She was having superficial injuries, grade one and two approximately 80-90%. The probable duration of burns was within 12 hours of examination. After first-aid and symptomatic treatment, she was referred to PGI, Chandigarh. He issued MLC Ext. PW-
10. PW-4 Dr. Sanjeev Sehgal, deposed that on 14.4.2006 at about 4:30 PM, he conducted the post mortem on the body of deceased Anuradha. According to his opinion, the deceased died due to heat injuries leading to infection, hypo-proteinemia and cardio respiratory arrest. The duration between the injury and the death was approximately 7 to 10 days and the death and the post mortem within 18 hours. He issued post mortem report Ext. PW-4/A.
11. PW-5 Dr. Amitabh Jain stated that he was posted as M.O.
Civil Hospital, Paonta Sahib since November, 2004. On 5.4.2006, .
Dharam Singh was admitted in hospital Paonta at 10:55 AM with the alleged history of sustained burn injuries. OPD slip Ext. PW-5/B was prepared by him. He was having burn injuries on his both hands 4% to 5%.
12. PW-6 Kusum Devi is the mother of the deceased. She testified that on 4.4.2006, at about 1:30 in the night, she came to her house alongwith her children. She was badly burnt and frightened. They managed a vehicle and took her to Pawar Clinic, Poanta Sahib where doctor advised to take her to better hospital. At about 5:30 AM on 5.4.2006, they came to Dhaula Kuan. Thereafter, they left for Nahan hospital. After treatment at Nahan, Anuradha was referred to PGI Chandigarh. At about 12:00 noon, they reached at PGI. She died in PGI on 13.4.2006 in the night. On 9.4.2006, she regained some consciousness. She told his son-in-law that accused had tried to rape her and set her on fire when she resisted against his act. In the evening, his son-in-law told her about what Anuradha had told her. In the evening, Anuradha told her about the above incident. On 11.4.2006, her statement was recorded in the presence of Judicial Magistrate. In her cross-examination, she stated that Anuradha had not told her on 4.4.2006 when she came to Dhaula Kuan at about 1:30 that she got the burn injuries because of fire due to the candle stick. (Confronted with portion A to A wherein it is so recorded). She has also inquired from her the cause of the burn injuries. (Confronted with portion B to B wherein it .
is so recorded). She remained throughout at PGI to look after her daughter. She again reiterated in her cross-examination that her son-in-
law had informed her that Anuradha had told him that the accused tried to rape her and when she resisted he set her on fire by sprinkling kerosene oil at about 5:00 PM on 9.4.2006. He informed her that Anuradha had informed him as such at about 12:00 noon on 9.4.2006.
Anuradha had not made any statement to her husband in her presence.
She has told the police in her statement recorded under Section 161 Cr.P.C. that Anuradha had told her that the accused tried to rape her and when she resisted, he poured kerosene oil and set her on fire.
(Confronted with statement Ext. PW-6/A wherein it is not so recorded).
13. PW-7 Ashok Kumar deposed that on 9.4.2006 when they went to PGI, Anuradha told her husband that accused had set her on fire when she resisted while trying to rape her. On 10.4.2006, police visited the spot at Rampur Banjaran. The police got the photographs of the room and took into possession one lady shirt, one Chuni, one sweater and bra which were lying on the bed. The police wrapped these articles in a cloth and sealed it with seal bearing impression “A”. The police also took into possession clothes lying on the floor. These were one Salwar of blue colour, one shirt, another Salwar and one white cloth lying on the gunny bag. The police also wrapped these articles in a parcel and sealed it withseal impression “A”. From the spot, the police took into possession one plastic bottle and one match box. These articles were also sealed in a .
packet with seal bearing impression “A”. Underwear is Ext. P-12 and Belt is Ext. P-13. Scissor Ext. P-14, pieces of bangles Ext. P-15 and medicine tube Ext. P-16 were also taken onto possession. In his cross-
examination, he deposed that on 9.4.2006, Anuradha had told her husband that accused on 4.4.2006 attempted to rape her and when she resisted, the accused poured kerosene oil on her and set her on fire. This statement was given by Anuradha at about 10:00 AM. Rajinder, husband of Anuradha is his real brother. The police had met him at PGI on 9.4.2006. He had told the police that on 9.4.2006, he was in PGI and Anuradha had told her husband all about it in his presence. (Confronted with statement Ext. PW-7/E wherein it is not so recorded).
14. PW-8 Surinder Kumar has only taken the photographs Ext.
PW-8/A1 to Ext. PW-8/A9.
15. PW-9 Sanjeev Kumar deposed that the deceased was his sister. On the night of 4.4.2006 at about 1:30 AM, Anuradha came to their house. She was frightened and badly burnt. He took her to Paonta Sahib to a private Clinic. The doctor advised them to take her to some better hospital. They took her to Nahan hospital. She was referred to PGI, Chandigarh from Nahan hospital. On 9.4.2006, Rajinder told her that she had narrated the incident to him that she was burnt by accused Dharam Singh while she resisted against his will when he was trying to commit rape on her. He also told him that she was burnt by pouring kerosene oil by Dharam Singh accused. In his cross-examination, he .
denied that Anuradha had also told him that she caught fire due to felling of candle stick. (Confronted with portion A to A of her statement Ext. PW-
9/A wherein it is so recorded).
16. PW-10 Dr. Ajay Kumar deposed that he was posted as Senior Registrar at PGI. On 6.4.2006 Anuradha wife of Rajinder Kumar was brought by her mother Kusum Devi. She was having thermal burn on 75% body surface area. She died on 14.4.2006 as per record. She was conscious at the time of admission. On 11.4.2006, she was also in fit state of mind. MLC summary Ext. PW-10/A was prepared and signed by him.
17. PW-11 Mrinal Gupta was 12 years old. According to her, on 4.4.2006 at about 11:00 PM, she was sleeping and her mother told her that she had caught fire. When she woke up, she saw her mother ablazed and one Dharam Singh was also present in the room. She extinguished the fire by pouring water on her mother. Dharam Singh ran away from the room. She changed the clothes of her mother. They kept the clothes on a gunny bag. There were one gent’s underwear and belt present in the room. There was smell of kerosene oil from the clothes of her mother.
Her brother was also present at that time and he was studying in the K.G.
class. Thereafter, they all went to the house of her maternal grand mother at Dhaula Kuan on foot. Her mother told her maternal grand mother that she had sustained injuries by candle. In her cross-
examination, she deposed that there was electricity break down on that .
day and they had burnt kerosene lamp for light. She woke up after hearing the cries of her mother. When she woke up, the accused ran away. Adjoining to their house at Rampur Banjaran, the elder and younger brother of her father resides in separate houses. They had not taken their help and also not informed them about the incident. She had not seen the accused after the date of the incident. Her mother told her maternal grand mother as to how she caught fire.
r After she woke up, they remained only for about 15 minutes in the house and thereafter left for Dhaula Kuan.
18. Statements of PW-12, PW-13, PW-16 and PW-17 are formal in nature.
19. PW-14 Insp. Khazana Ram deposed that he recorded FIR Ext. PW-14/A on the basis of rukka Ext. PW-1/A. He submitted an application to JMIC Chandigarh for recording the statement of Anuradha wife of Rajinder Kumar, who was admitted at PGI Chandigarh. In his cross-examination, he deposed that he has sent ASI Krishan Kumar to record the statement of Anuradha. ASI Krishan Kumar came back to Nahan on the night of 10.4.2006, since Anuradha was not fit to make the statement as per the version of ASI Krishan Kumar, her statement could not be recorded on 9.4.2006 and 10.4.2006. On 11.4.2006, he received a telephonic message from some person alleging to be attending to Smt.Anuradha requesting him to come to PGI, Chandigarh. He did not remember whether the telephonic message was received from the mother .
of Anuradha or her husband. On 11.4.2006, he straight away went to the ward in which Anuradha was admitted. On reaching there he found the mother of Anuradha sitting at her bed side. Thereafter, he inquired from the doctor whether she was fit to make the statement and the doctor replied in the positive. The Magistrate recorded the statement of Anuradha in the ward where she was admitted. When the statement was recorded, he was not present there. He did not remember if her mother was present at that time or not when her statement was recorded. He also admitted that the first version of the mother and brother of Anuradha and other witnesses was that they were told by Smt. Anuradha that she caught fire by fall of candle stick.
20. PW-15 ASI Shiv Ram deposed that he was posted as I.O at Police Post Gunnu Ghat, Nahan. On 5.4.2006, he received an information from Zonal Hospital Nahan that one lady has been brought in burnt condition. He went to the hospital and obtained MLC of Anuradha Ext.
PW-3/A. The doctor on duty opined that she was not fit to make statement due to this her statement could not be recorded.
21. PW-18 ASI Krishan Kumar deposed that he alongwith Const.
Krishan Nand went to PGI and recorded the statement of Rajinder Kumar u/s 154 Cr.P.C. Ext. PW-1/A. He recorded the statement as per the version of Rajinder Kumar. The statement of Anuradha could not be recorded on the same day as she was not fit to make statement as per the opinion of SMO, PGI.
22. PW-19 R.K.Mehta, JMIC, deposed that on 11.4.2006, Insp.
Khazana Ram moved an application for recording the statement of Anuradha, wife of Rajinder. He recorded the statement of Anuradha Ext.
PW-19/A. He also enquired from the doctor as to whether she was fit to make her statement and after declaring her to be fit to give statement, he recorded her statement. On her statement, her right toe impression was taken as her both hand thumbs were burnt. The doctor had also signed the statement.
23. PW-20 SI Manish Chauhan deposed that initially the investigation of the case has been conducted by ASI Kishan, who was Incharge P.P. Majra. He visited the spot and prepared site plan Ext. PW-
20/A. He clicked the photographs of the spot. He also took into possession the burnt clothes including lady shirt, Chuni, Sweater, Bra, Salwar, Kamij, another Salwar, white cloth, Gunny bag, Plastic bottle, Match Box etc. vide memo Ext. PW-7/A. These were sealed with seal impression “A” in the parcel. He also took into possession the underwear Ext. P-12 and belt Ext. P-13 vide memo Ext. PW-17/B. He also took into possession scissors Ext. P-14 and pieces of bangles Ext. P-15 from the spot vide memo Ext. PW-17/C. He also took into possession bed sheet vide memo Ext. PW-7/D.
24. The case of the prosecution, precisely, is that on 4.4.2006 at about 11:00 PM, accused has trespassed into the house of the deceased.
He tried to rape her. She resisted and thereafter, she was put on fire by the accused. She was taken to private Clinic and after that to Nahan Hospital. She was referred to PGI, Chandigarh and she died there on 14.4.2006.
25. Anuradha was sleeping with her children at the time of the incident at 11:00 PM at Rampur Banjaran, Tehsil Paonta Sahib. PW-11 Mrinal Gupta, her daughter was sleeping with her. PW-1 Rajinder Kumar was not present in his house at the time of the incident. He was on night duty at Mineral Factory. He was informed about the incident by his brother-in-law. In his cross-examination, he deposed specifically that on way to PGI, his wife told him that she has sustained injuries by felling of kerosene lamp and also stated that the fire was caught by candle. On 9.4.2006 at about 12 noon when she became conscious, she told her mother-in-law that Dharam Singh on 4.4.2006 at about 11:00 PM came to her house and forcibly attempted to commit rape with her. She also told that she refused his request for having sex due to which he sprinkled kerosene oil from a bottle and set her on fire by lighting match stick. In his cross-examination also he deposed that on 5.4.2006 when he went to Dhaula Kuan, his wife was conscious and talking. On his asking at Dhaula Kuan his wife had told him that she had received injuries on account of felling of a kerosene lamp. PW-6 Kusum Devi in herexamination-in-chief deposed that at about 12:00 noon, they reached at PGI. On 9.4.2006, she regained some consciousness. She told his son-
in-law that accused had tried to rape her and set her on fire when she resisted against his act. In the evening, Anuradha told her about the incidence. PW-9 Sanjeev Kumar, brother of the deceased deposed that on 9.4.2006, Rajinder told her that she had narrated the incident to him that she was burnt by accused Dharam Singh while she resisted against his will when he was trying to commit rape on her. We have already noticed that PW-1 Rajinder Kumar has deposed that it was his mother-in-law to whom Anuradha had narrated the incident and not to him. PW-7 Ashok Kumar has deposed in his examination-in-chief that on 9.4.2006, when he went to PGI Chandigarh, Anuradha told her husband that accused had set her on fire when she resisted while he was trying to rape her. PW-9 has also deposed that on 4.4.2006, Anuradha came to their house. Her mother told him that at that time, Anuradha caught fire due to felling of candle. He denied the suggestion that Anuradha has told him that she caught fire due to felling of candle stick. (Confronted with portion A to A of his statement Ext. PW-9/A wherein it is so recorded). There is variance in the statement of PW-1 Rajinder Kumar and PW-6 Kusum Devi. As per PW-1 Rajinder Kumar, as noticed above, it was his mother-in-law to whom Anuradha had told that on 9.4.2006, at about 12 noon, when she became conscious, that Dharam Singh on 4.4.2006 at 11:00 PM came to her house forcibly and attempted to commit rape with her. However, PW-
6 Kusum Devi has deposed that it was Rajinder Kumar to whom Anuradha had told the manner in which the incident had happened.
26. PW-18 ASI Krishan Kumar categorically deposed that he reached PGI at 9:00 PM on 9.4.2006 and the statement of Anuradha could not be recorded on the same day as she was not fit to make statement as per the opinion of SMO, PGI. PW-14 Khajana Ram has also deposed that he had deputed ASI Krishan Kumar to record statement of Anuradha. ASI Krishan Kumar came back to Nahan on the night of 10.4.2006. Since Anuradha was not fit to make statement as per the version of ASI Krishan Kumar, her statement could not be recorded on 9.4.2006 and 10.4.2006. It belies the statements of PW-1 Rajinder Kumar and PW-6 Kusum Devi that Anuradha had made oral dying declaration before them.
27. PW-3 Dr. A.K.Gupta, has also deposed that he has observed that it was alleged history of accidental fire when he examined Anuradha, wife of Rajinder Kumar. He issued MLC Ext. PW-3/A. In Ext. PW-3/A, it is specifically noted by Dr. A.K.Gupta, that it was a case of accidental fire.
It is further stated in Ext. PW-3/A that the husband of Anuradha was on night duty in some factory and only in the morning when he came, found her burnt. According to PW-4 Dr. Sanjeev Sehgal, the deceased died due to heat injuries leading to infection, hypo-proteinemia and cardio respiratory arrest. The duration between the injury and the death was approximately 7 to 10 days and the death and the post mortem within 18 hours. He issued post mortem report Ext. PW-4/A.
28. Now, we will advert to dying declaration Ext. PW-19/A recorded by PW-19 R.K. Mehta, JMIC at the instance of ASI PW-14 Insp.
Khazana Ram. According to PW-19/A, Anuradha was married in the year 1994 with Rajinder Kumar. At 11:00 PM, there was ‘Jagran’ in their house. They were dressed up. Her nephew Vijay Kumar was supposed to come to take them to “Jagran”. However, he did not come. Then she went up to sleep. The children also went up to sleep. Somebody knocked the door. She thought her nephew had come. There was no electricity.
She opened the door. Dharam Singh forcibly came inside. He bolted the door from inside. He tried to rape her. She was also beaten up. Her bangles were broken. The accused had brought the kerosene oil with him. He sprinkled oil on her. He put her on fire by match stick. She tried to hold Dharam Singh to save her. He did not do so. Perhaps, his hands were also burnt. She extinguished the fire with the help of gunny bag. She removed her clothes. Thereafter, she went to kitchen and put water on her. She was threatened by Dharam Singh. PW-11 Mrinal Gupta, has testified that on 4.4.2006, at 11:00 PM, she was sleeping and her mother told her that she had caught fire. When she woke up, she saw her mother ablaze and one Dharam Singh was also present in the room.
She extinguished the fire by pouring water on her mother. Dharam Singh ran away from the room. She changed the clothes of her mother. She also admitted in her cross-examination that there was electricity break down on that day. She woke up after hearing cries of her mother. When .
she woke up, accused ran away. She also stated in her cross-
examination that adjoining to their house at Rampur Banjaran, the elder and younger brother of her father resides in separate houses. They had not taken the help of them and not informed them about the incident.
She had not seen the accused after the date of the incident. Her mother told her maternal grand mother as to how she caught fire from candle stick on inquiry made by her grand mother. In case the deceased was beaten up by the accused and her bangles were also broken and she was crying, it would have attracted the attention of the family members, who were residing in the adjoining house. It is also intriguing to note that the children, who were sleeping in the same room, did not woke up after hearing commotion in the room.
29. According to the deceased, as per her statement Ext. PW-
19/A, she extinguished the fire with the help of gunny bag and thereafter poured water. However, PW-11 Mrinal Gupta, stated that she extinguished the fire by pouring water on her mother and changed her clothes. There are contradictions and embellishments in the statements, as noticed by us hereinabove, of PW-1 Rajinder Kumar, PW-6 Kusum Devi and PW-9 Sanjeev Kumar, the manner in which the incident was narrated by Anuradha to them.
30. The matter is required to be considered from yet another angle. FIR was registered on the basis of statement of PW-1 Rajinder .
Kumar vide Ext. PW-1/A. According to the contents of PW-1/A, on 9.4.2006 at about 12 noon, when he was looking after his wife at PGI, his wife regained some consciousness. He inquired about the burn injuries then she told him that accused Dharam Singh son of Ram Prasad had entered the house on 4.4.2006 at about 11:00 PM and tried to rape her.
She told him that she was on fast due to Navratras. She refused her advances and thereafter he poured kerosene oil on her and lit the match stick. This version is in contradiction to the statement made by him while deposing in the Court as PW-1. In his statement before the Court as PW-
1 Rajinder Kumar has stated that his wife told his mother-in-law the manner in which the incident had happened. However, when PW-6 Kusum Devi appeared before the Court she stated that it was her son-in-
law to whom the incident was narrated by her daughter. Thus, oral dying declaration made vide Ext. PW-19/A cannot be believed in view of the appraisal of the facts made hereinabove.
31. PW-18 has categorically stated that the deceased was not fit to make statement on 9.4.2006 and thus, it cannot be believed that the deceased made statement either before her husband i.e. PW-1 Rajinder Kumar or PW-6 Kusum Devi, her mother. Similarly, PW-14 Insp.
Khazana Ram has also admitted in his cross-examination that the first version of mother and brother of Anuradha and other witness was that they were told by Anuradha that she caught fire by candle stick. It is also unbelievable that the accused would have carried the kerosene oil with .
him while entering into the house of the deceased in order to commit rape.
32. In the case of Smt. Kamla vrs. State of Punjab, reported in AIR 1993 SC 374, their lordships of the Hon’ble Supreme Court have held that the dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars.
It has been held as follows:
“8. If we examine all these dying declarations one by one we notice glaring inconsistencies as to who exactly poured kerosene oil ad set fire or whether she caught fire accidentally. Suicide however is ruled out. In Ex. PB/2 recorded by P.W. 2 the deceased stated that her mother-in-law sprinkled kerosene oil from behind and burnt her. In the next statement Ex. DA recorded by Dr. Jaison Chopra, C.W. 1, she is alleged to have stated that her clothes got burnt catching fire from the stove, thereby indicating that it was an accident. In the third statement Ex. PJ recorded by C.W. 2 she was rather vague as to who exactly poured kerosene oil and set fire on her and she only stated that it could be possible that her mother-in-law and father-in- law might have set the fire after pouring kerosene oil. On 30.9.79 Ex.PD was recorded in the presence of three doctors, P.W. 7, P.W. 3 and C.W.I wherein she stated that she turned to the store and she heard her mother-in-law and father-in-law talking behind her and suddenly they poured kerosene oil and they set her on fire. The trial court and the High Court discarded the other statements and relied only on Ex.PB/2 recorded by P.W. 2 wherein she implicated only her mother-in-law. So far Ex. DA recorded by C.W.I is concerned, the High Court pointed out that C.W. 1 was also present when Ex.PD .
was recorded and that at any rate there was no occasion for C.W. 1 to record such statement and that he must have done the same at the instance of the accused. After having carefully examined the, record and facts and circumstances, we do not think that a remark of this nature against C.W. 1, a responsible doctor is called for. The mere fact that C.W. 1 Dr. Jaison Chopra was present when Ex. PD was recorded on the next day does not necessarily mean that he could not have recorded Ex. DA-on the previous day. As a matter of fact, even in Ex. PD recorded by a team of doctors, she implicated both mother-in-law and father-in-law whereas in Ex.PB/2 she implicated only her mother-in-law. This itself shows that she was bent upon implicating both of them at a later stage. In this context it is also noteworthy that D.W. 2, the husband of the deceased supported the plea of the accused. He deposed that both the accused namely his mother and father were away to Dandi Swami Mandir on the day of occurrence and that at about 8.15 A.M. he heard the shrieks raised by the deceased from the kitchen. He picked up a blanket and went running into the kitchen apprehending that she might have caught fire due to busting of the gas cylinder. He covered her with the blanket and brought her out and his clothes also caught fire and he became unconscious and regained consciousness in the hospital. In the cross-examination by the prosecution he denied the suggestion that he made a false statement with a view to save his parents. The deceased in all her dying declarations has clearly stated that her husband namely D.W. 2 came and rescued her. Therefore, D.W. 2’s evidence cannot simply be brushed aside on the ground that he might have given such a version to save his parents and his evidence further shows that the occurrence could be due to accident. Viewed from this angle also the version given in the statement made before C.W. 1 in Ex. DA that it was due to accident, is not improbable. In Ex. PJ she only expressed a suspicion against both her mother-in-
law and father-in-law. The accused examined D.W. 1 Satpal an attesting witness of the statement Ex. PJ. He supported the defence version. Thus it can be seen that there are glaring inconsistencies in these dying declarations. Both the courts below, however, held that P.W. 2 Dr. Rupinder Singh is a reliable and independent witness, therefore the statement recorded by him has to be accepted and accordingly convicted the appellant. We must observe that P.W. 2 simply recorded the statement of the deceased but the contents of that statement have to be subjected to a close scrutiny in the light of many other circumstances since the conviction has to be based on the sole dying declaration Ex.PB/2. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars. Just like P.W. 2, P.W. 7, P.W. 3 and C.W.I are also respectable doctors and independent witnesses who spoke about the contents of Ex. PD in which she implicated both her father-in-law and mother-in-law specifically as having participated in the crime. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just cannot pick out one statement namely Ex.PB/2 and base the conviction of the appellant on the sole basis of such a dying declaration. The courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between Ex.PB/2 and Ex. PD is enough to manifest the same. That being so, we do not think that either Dr. Jaison Chopra, C.W. 1 or S.I. Vidya Sagar, C.W. 2 who claimed to have recorded Ex. DA and Ex. PJ should be blamed. Having given our earnestconsideration, we feel that under these circumstances it is highly unsafe to convict the appellant on the sole basis of the dying .
declaration Ex.PB/2 recorded by P.W. 2. In the result the conviction and sentence passed against the appellant are set aside and the appeal is allowed. If she is on bail, her bail bonds shall stand cancelled.”
33. Their lordships of the Hon’ble Supreme Court in the case of Smt. Laxmi vrs. Om Prakash and others, reported in AIR 2001 SC 2383, have held that the Court should be satisfied that the deceased was in the fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. Their lordships have further held that it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent. It has been held as follows:
“1. Nemo moriturus praesumitur mentire __ No one at the point of death is presumed to lie. A man will not meet his Maker with a lie in his mouth __ is the philosophy in law underlying admittance in evidence of dying declaration. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement.
The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or .
circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration__is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684.
The Court added – such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34 IPC, seeks reversal of the impugned judgment and invites this court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled: dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction.
A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the .
maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.
30. The principal accused Om Prakash had himself informed the police of the incident. In fact, he was the first to give any information relating to the incident to the police. Unfortunately, none of the accused could have escorted the victim to the hospital nor could remain present by her side as the case diary revealed (as has been noticed by the trial court) that the accused persons were arrested on the same day. The house of the accused persons which is the site of the incident is situated in a thickly populated locality in a narrow lane where the houses are located like a cluster. The neighbours must have collected soon at the place of the incident. This is borne out from the statement of Shiv Charan, ASI who had made on the spot inquiries. None of the neighbours has been examined excepting Trishla Kumari, PW1 to whom the injured Janak Kumari has not made any statement implicating the accused persons although she had the opportunity of doing so. We have also dealt with each of the five dying declarations to find out their worth. We have found the .
second dying declaration to be no dying declaration, the first and third ones having been made to police officers associated with investigation and also not worthy of credence. We have disbelieved the fifth dying declaration said to have been made to PW3, Krishan Lal. We have found it not safe to act on the fourth dying declaration said to have been made to a Magistrate as we entertain grave doubts if the injured Janak Kumari was in a position to make any statement at the time at which this fourth, as also the third and the fifth dying declarations are alleged to have been made. We have found some inconsistency between the statements said to have been made by the injured Janak Kumari and recorded as third and fourth dying declaration. We have also found that from the beginning there was an effort to develop a story of Janak Kumari having been attempted to be stragulated which story finds a mention in the record as prepared by Dr. Khanijau but which story has been found to be false.
None of the five statements attributed to Janak Kumari and coming from the mouth of different witnesses has been held worthy of being accepted and acted upon as dying declaration so as to form a safe basis to base conviction of the accused thereon. We find ourselves not persuaded to reverse the well-reasoned finding of not guilty recorded by the trial court and convert the same into a finding of guilty simply because the statements alleged to be dying declarations are five in number. Needless to say there is no other shred of evidence connecting the accused with the crime.”
34. Their lordships of the Hon’ble Supreme Court in the case of Uka Ram vrs. State of Rajasthan, reported in (2001) 5 SCC 254, have held that the Court should be satisfied about its trustworthiness and voluntary nature and fitness of mind of the deceased. It has been held as follows:
“6. 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 under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a mans mind the same feeling as that of a conscientious and virtuous man under oath – Nemo moriturus praesumuntur mentiri. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker 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 induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim Nemo moriturus praesumitur mentire i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that dying declaration should be of such nature as .
to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.
10. After going through the whole of the evidence, perusing the record and hearing the submissions of the learned counsel for the parties, we are of the opinion that the prosecution had not proved, beyond doubt, that the dying declaration was true, voluntary and not influenced by any extraneous consideration. Despite knowing the fact that the deceased was a mental patient, the investigating agency did not take any precaution to ensure that the incident was suicidal or homicidal. The probability of the deceased committing suicide has not been eliminated. There also exist a doubt about the mental condition of the deceased at the time she made dying declaration (Exhibit P- 27). Exhibit P-26, the medical certificate only states to her physical condition to make a statement but does not refer to her mental condition even at that time. The trial as well as the High Court appear to have ignored this aspect of the matter while convicting and sentencing the appellant. We are satisfied that it is a fit case in which the appellant is entitled to the benefit of doubt.
11. As the dying declaration, the sole evidence upon which the conviction is based, is not reliable beyond all reasonable doubts, the conviction and sentence of the appellant is not justified. Accordingly, the appeal is allowed by setting aside the impugned judgment. The .
appellant is acquitted of all the charges and is directed to be set at liberty forthwith unless required in some other case.”
35. In the case of Arvind Singh vrs. State of Bihar, reported in (2001) 6 SCC 407, their lordships of the Hon’ble Supreme Court have held that care and caution must be exercised in accepting a dying declaration as trustworthy evidence. It has been held as follows:
“Dying declarations shall have to be dealt with care and caution and corroboration thereof though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In our view question of the dying declaration to the mother is not worth acceptance and the High Court thus clearly fell into an error in such an acceptance. Significantly, the High Court has set aside the conviction and sentence under Section 304 B read with Section 34 and 120 B of the Indian Penal Code so far as the father-in-law, the mother-in-law and the brother-in-law are concerned though maintained the conviction under 498A. So far as the husband is concerned the High Court converted the charge from 304 B to 302 on the ground that the only motive of the murder could be attributed to the husband who must be interested in committing such offence so that he can perform another marriage This is rather a far-fetched assumption without any cogent evidence available on record. Needless to record here that excepting one of the very keenly interested witness, the episode of the applicant being married again does not come from any other witness and the factum of marriage also though stated but devoid of any particulars even as regards the name, the date of marriage etc. It is on record that on arrival of the .
mother and the brother of the deceased, they found an assembly of large number of mahalla people but none of them were called to even have a corroboration to this part of the evidence of the accused marrying after the death of the deceased: No independent witness was thought of, though the factum of marriage could have been corroborated by an outside agency. The FIR and the other oral evidence available if read together and full credence is attributed to the same but that itself does not and cannot permit the High Court to come to such an assumption. The assumption is faulty and is wholly devoid of any substance. As a matter of fact no special role was even ascribed to the appellant herein for apart leading any evidence thereon. Presumptions and assumptions are not available in criminal jurisprudence and on the wake of the aforesaid we are unable to lend concurrence to the assumptions of the High Court as recorded herein before in this judgment. Significantly, even the dying declaration whatever it is worth, has implicated all the four accused in the manner similar. There is no additional piece of evidence implicating the husband which would permit the High Court to convert the charge of 304 B to 302 True punishment of life imprisonment is available under 304 B but that is the maximum available under the Section and for Section 302 the same is the minimum available under the Section. Though discretion to a further award minimum cannot be taken away from the Court. Section 302is a much more heinous offence and unfortunately there is no evidence of such heinous activities attributable to the husband. The factum of the husband, if interested in committing such offence so that he can perform another marriage has not been put to the witnesses and in the absence of which, assumption to that effect, cannot be said to be an acceptable assumption since without any evidentiary support. The assumption by itself in our view is untenable.”
36. In the case of State vrs. Vazir Hakki, reported in 2005 Cri.L.J. 2719, the Division Bench of the Bombay High Court has laid down the cardinal rules required to be followed in appeal against acquittal. It has been held as follows:
“6. In an appeal against acquittal, we are required to see whether the view taken by the learned Additional Sessions Judge is plausible and in fact, we find that from the evidence produced by the prosecution and the defence the view held by the Additional Sessions Judge was a probable view. It is now well settled with a catena of decisions of the Supreme Court that in an appeal against acquittal certain cardinal rules are required to be kept in mind, namely, (a) that there is a presumption of innocence in favour of the accused which has been strengthened by the acquittal of the accused by the trial Court,
(b) if two views are possible, a view favourable to the accused should be taken, (c) that the trial Judge had the advantage of looking at the demeanour of the witnesses and (d) the accused is entitled to a reasonable benefit of doubt, a doubt which a thinking man will reasonably, honestly and consciously entertain.”
37. In the case of Nallapati Sivaiah vrs. Sub Divisional Officer, Guntur, Andhra Pradesh reported in (2007) 15 SCC 465, their lordships of the Hon’ble Supreme Court have traced out and explained the principles for accepting dying declaration. It has been held as follows:
“20. There is a historical and a literary basis for recognition of dying declaration as an exception to the Hearsay Rule. Some authorities suggest the rule is of Shakespearian origin. In “The Life and Death of King John”, Shakespeare has Lord Melun utter what a “hideous death within my view, retaining but a quantity of life, which bleeds away,..lose the use of all deceit” and asked,”Why should I then be false, since it is true that I must die here and live hence by truth?”
William Shakespeare, The Life and Death of King John act. 5, scene.4, lines 22-29.
21. In passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including weapon which injured the victim, nature and extent of injuries, victim’s physical condition, his conduct, and what was said to and by him. This Court has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, Hearsay exception is a mixed question of fact and law.
22. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in asmuch as there could be any number of circumstances which may affect the truth. 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 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.
23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is a thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be last to give .
untruth as he stands before his creator.
24. There is a legal maxim “Nemo Moriturous Praesumitur Mentire” meaning, that a man will not meet his maker with lie in his mouth.
Woodroffe and Amir Ali, in their treatise on Evidence Act state : “when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross- examination are dispensed with.”
25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.
26. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition – mentally and physically – to make such statement.
52. The Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording Dying Declaration be it even a Magistrate but also all the materialavailable on record and the circumstances including the medical evidence. The evidence and the material available on record must be .
properly weighed in each case to arrive at proper conclusion. The court must satisfy to itself that the person making the Dying Declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.
53. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence.”
38. Their lordships of the Hon’ble Supreme Court in the case of J.
Ramulu vrs. State of Andhra Pradesh & connected matter, reported in (2009) 16 SCC 432, have held that in a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. It has been held as follows:
“26. This Court in P. Mani v. State of T.N. [(2006) 3 SCC 161], while dealing with the question of dying declaration, held that conviction can be recorded on the basis of the dying declaration alone but the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece .
of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them.”
39. Their lordships of the Hon’ble Supreme Court in the case of Atbir vrs. Government of NCT of Delhi reported in (2010) 9 SCC 1, have reiterated the factors to be taken into account while recording dying declaration. It has been held as follows:
“14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account.
15) In Munnu Raja and Another vs. The State of Madhya Pradesh, (1976) 3 SCC 104, this Court held:-
“….It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated….”
It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged.
16) In Paras Yadav and Ors. vs. State of Bihar, (1999) 2 SCC 126, this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement.
17) The effect of dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh & Anr. Vs. State of Punjab, (2006) 12 SCC 283. Paragraph 23 of the said judgment is relevant which reads as under:
“23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473, this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517, wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra, (2002) 6 SCC 710).”
It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the .
whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in event of her death may also be treated as FIR.
18) In State of Rajasthan vs. Wakteng, (2007) 14 SCC 550, the view in Balbir Singh’s case(supra) has been reiterated. The following conclusions are relevant which read as under:
“14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.
15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.”
19) In Bijoy Das vs. State of West Bengal, (2008) 4 SCC 511, this Court after quoting various earlier decisions, reiterated the same .
20) In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113, the following discussion and the ultimate conclusion are relevant which read as under:
“14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the r requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that 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 the deceased was not as a result of either tutoring, or 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 assailant. 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.”
21) The same view has been reiterated by a three Judge Bench decision of this Court inPanneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474.
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 dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(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 eye-witness 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 basis of conviction, even if there is no corroboration.”
40. Their lordships in the case of Prempal vrs. State of Haryana, reported in (2014) 10 SCC 336, have held that the Court must be satisfied that dying declaration is true, voluntary and not as a result of either tutoring or prompting or a product of imagination and the Court must be further satisfied that deceased was in a fit state of mind. It has been held as follows:
“12. When reliance is placed upon dying declaration, the court must be satisfied that the dying declaration is true, voluntary and not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind. In State of Uttar Pradesh vs. Ram Sagar Yadav And Ors. AIR 1985 SC 416 = (1985) 1 SCC 552, this Court held that if the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. In this context, the observations made in para (13) of the judgment are relevant to be noted:-
“13. It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. (See Khushal Rao vs. State of Bombay, 1958 SCR 552; Harbans Singh vs. State of Punjab, 1962 Supp.1 SCR 104; Gopalsingh vs. State of M.P. (1972) 3 SCC 268). There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated.
The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration”
13. In Bapu vs. State of Maharashtra (2007) 2 SCC (Crl.) 545 = (2006) 12 SCC 73, this Court in paras (14) and (15) observed as under:-
“14. In Ravi v. State of T.N. [(2004) 10 SCC 776] the Supreme Court observed that : (SCC p.777, para 3) [I]f the truthfulnessâ€¦ of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law.
15. In Muthu Kutty v. State [ (2005) 9 SCC 113] vide para 15 the Supreme Court observed as under : (SCC p. 120-121) “15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that 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 the deceased was not as a result of either tutoring, or 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 assailant.
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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474]: (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P)[(1976) 3 SCC 104].
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552] and Ramawati Devi v. State of Bihar[(1983) 1 SCC 211].
(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618].)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P [(1974) 4 SCC 264]).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P [(1981) Supp. SCC 25]).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of .
U.P [(1981) 2 SCC 654]).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu[ (1980) Supp. SCC 455]).
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [(1980) Supp. SCC 769]).
(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 said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram V. State of M.P. [(1988) Supp. SCC 152]).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan[(1989) 3 SCC 390]).
(xi) 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 declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700]).”
41. In the instant case, the deceased has remained in the company of PW-6 Kusum Devi and her husband PW-1 Rajinder Kumar.
Their earlier version that the deceased has told them the manner in which the incident has taken place has not been found trustworthy by us. The deceased was not found fit to make any statement on 9.4.2006 or .
10.4.2006, as per the statement of PW-18 Krishan Kumar. According to the material placed on record, firstly she got burnt due to an accident, secondly she has told her husband and mother about the manner in which she was put on fire by the accused, which we have disbelieved.
Thus, in view of the facts and circumstances of the case, the dying declaration made on 11.4.2006 required corroboration, more particularly, when there is inherent contradiction in Ext. PW-19/A and statement of PW-11 Mrinal Gupta. The prosecution has thus failed to prove the case against the accused beyond reasonable doubt and there is no reason for us to interfere with the well reasoned judgment of the learned trial Court.
42. Consequently, there is no merit in this appeal, the same is dismissed. Bail bonds are discharged.
( Rajiv Sharma ), Judge.
February 28, 2015, ( Sureshwar Thakur ), Judge. (karan)