$~R-3&4 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 4th August, 2016 Date of decision : 24th August, 2016 + CRL.A.No.352/2000 RANBIR SINGH TYAGI ..... Appellant Through : Mr. Jayant K. Sud, Mr. Honey Khanna and Ms. Viashali Soni, Advs. versus STATE NCT OF DELHI ..... Respondent Through : Ms. Aashaa Tiwari, APP along with Insp. Neera Singh, P.S. Krishna Nagar. + CRL.A.No.370/2000 SANDEEP TYAGI & ANR. ..... Appellants Through : Mr. Jayant K. Sud, Mr. Honey Khanna and Ms. Viashali Soni, Advs. versus STATE NCT OF DELHI ..... Respondent Through : Ms. Aashaa Tiwari, APP along with Insp. Neera Singh, P.S. Krishna Nagar. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE R.K. GAUBA JUDGMENT
GITA MITTAL, J
1. By a judgment dated 30th May, 2000, Ranbir Singh Tyagi (appellant in Crl.Appeal No. 352/2000) as well as his wife Kusum Lata Tyagi and their son Sandeep Tyagi (appellants in Crl.Appeal No. 370/2003) have been convicted for commission of offences under Section 498A and by an order on sentece dated 31st May, 2000, they have been sentenced to undergo rigorous imprisonment of three years and fine of `5,000/- each and in default of fine, they are required to undergo rigorous imprisonment of six months each.
2. By the same judgment dated 30th May, 2000 as well as order on sentence dated 31st May, 2000, the appellants Sandeep Tyagi and Smt. Kusum Lata Tyagi stand convicted for commission of offences under Section 304B and sentenced to undergo imprisonment for life and fine of `5,000/- each and in default of payment of fine, to undergo six months rigorous imprisonment each.
3. Ranbir Singh has filed Crl.Appeal No. 352/2000 assailing this conviction and sentence, whereas Sandeep Tyagi and Kusum Lata have assailed their conviction and sentence by way of Crl.Appeal No. 370/2000.
4. As the appellants were subjected to a joint trial and convicted on the same evidence, identical issues arise for consideration in these appeals and consequently we are deciding these appeals by a common judgment.
5. Before we discuss the case of the prosecution, we notice certain essential established and undisputed facts. From the marriage of the appellants Ranbir Singh Tyagi and Kusum Lata, they were blessed with two children – a son, Sandeep Tyagi and a daughter, Archana Tyagi. Sandeep Tyagi was married to thedeceased Anju Tyagi on the 15th of December, 1991.
6. While the family of the deceased Anju Tyagi was residing within the jurisdiction of Police Station Krishna Nagar, Delhi, Ranbir Singh Tyagi with his family was a resident of Village Ghukana, Meerut Road, Ghaziabad (U.P.).
7. The prosecution has set up a case that though the parents of Anju Tyagi had given sufficient dowry in marriage, however, after two months of marriage, the jewellery articles were taken by Anju’s mother-in-law (Kusum Lata) on the pretext that the same were to be kept in a locker on account of dacoities being committed. Secondly, the mother-in-law demanded a sum of `30,000/- from her parents for construction of their home which was to be returnable after one year. The third allegation against the husband and in-laws was that on 20th February, 1992, Anju with her mother-in-law and sister-in-law attended the wedding of her maternal cousin. In that marriage, Anju’s uncle had given a Maruti Car in dowry. Motivated by such gift in her cousin’s marriage, on 21st February, 1992, Anju’s father-in-law, mother-in-law and husband demanded that a Maruti Car also be given to them claiming that they had even widened the door of their house to enable the entry of such vehicle.
So far as infliction of cruelty is concerned, it was alleged that on realising that the Maruti car could not be so obtained, Anju was brutally beaten up, kept in her room, kerosene was sprinkled on her and an attempt to burn her was made.
8. It was also the case of the prosecution that on 9 th of January 1993, Anju’s mother-in-law had ruthlessly beaten her up leading to swelling on her hand, face and feet. On 10th January, 1993, it was alleged that Anju’s brother Rajiv Kumar (PW-3) brought “kothli” (customary presents from the parents of the girl). However, Anju was not allowed to meet her brother because of the events of the preceding day ie. 9th January, 1993; that the demand for the Maruti car was repeated by her husband and parents-in-laws to her brother; that thereafter, in the night of 11th of January 1993, the mother-in- law – Kusum Lata and husband – Sandeep Tyagi beat up the deceased till she lost consciousness. Upon gaining consciousness, on the 12th of January 1993, as per the deceased Anju Tyagi, her husband gave her a cupful of medicine and a glass of water to drink which resulted in the loss of her voice. Anju was allegedly also told by her husband and parents-in-law that she would not need any medicine thereafter and that she would recover. As per the prosecution, Anju has recollection only of gaining consciousness one month thereafter in the Irwin Hospital when her mother, father, brother and paternal uncle (chacha) were by her side.
9. The above allegations are contained in a writing dated 4th March, 1994 (Ex.PW3/A) attributed to Anju which is stated to have been handed over by her uncle Shri Madan Lal Tyagi (PW-5) to the SHO of Police Station Krishna Nagar, Delhi. Based thereon, on the 6th of March 1994, Police Station Krishna Nagar registered FIR No.84/94 (Ex.PW12/A) under Sections 498A and 406 of the IPC.
10. The prosecution has further claimed that on the 11 th of March 1994, Shri Amit Yadav (PW-13), then posted as Sub-
Divisional Magistrate, Shahadara, went to the hospital when deceased Anju handed him over a two page hand written statement dated 11th March, 1994 (Ex.PW13/A) allegedly scribed by her.
11. The prosecution has relied on a certificate annexed thereto purportedly issued by Dr. Ciba Annie Paul, Junior Resident in Department of ENT, All India Institute of Medical Sciences (AIIMS) to the effect that a patient Anju Tyagi was not able to speak but was fit enough to write (Ex. PW 13/A).
12. It is in evidence that Anju Tyagi passed away in AIIMS on 8th April, 1994. The viscera, blood samples and nails of the deceased, sealed with the seal of AIIMS, were taken custody of by Head Constable Bhawar Singh (PW-9) on 9th April, 1994 vide seizure memo Ex.PW9/A. An application dated 9 th April, 1994 was submitted by S.I. Vinita Tyagi, Police Station Krishna Nagar, Delhi (PW-14) for conducting the post-mortem on the body of Anju Tyagi (Ex.PW14/B). In the brief facts of the case (Ex.PW14/C), S.I. Vineeta Tyagi referred to a statement by Anju that some unknown poison was given to her by her in-laws on 12th of January 1993 as a result of which, she remained unconscious for one month in LNJP Hospital.
13. S.I. Vinita Tyagi submitted that she had requested SDM Amit Yadav to conduct inquest proceedings but he ordered that the same be conducted by her. The dead body was identified by her father – Shri Mohan Singh Tyagi and uncle – Shri Madan Lal Tyagi (PW-5). The viscera of the deceased was handed over to Head Constable Bhanwar Singh (PW-9) for depositing into the malkhana. The report of CFSL on viscera was obtained and filed which was proved on record as Ex.PW14/K.
14. On 9th of April 1994, S.I. Vinita Tyagi, Police Station Krishna Nagar requested for a post-mortem on the dead body (Ex.PW14/B) enclosing brief facts (Ex.PW14/C). On 9th of April 1994, a post-mortem was conducted on her dead body at 2:30 pm in the AIIMS hospital (Ex.PW16/A).
As per the report of the post-mortem, the cause of death of Anju Tyagi was opined to be “Hypovolamic and anaemic shock” .
15. On 10th of June 1994 (Ex.PW14/K), a reference of the viscera sample of the deceased was made for forensic examination to the Central Forensic Science Laboratory. As per the report dated 5th of July 1996 (Ex.PW14/K), no form of poison was detected on the samples which were sent to the forensic science laboratory.
16. The appellant Ranbir Singh was arrested first and a charge sheet filed against him. The appellant Sandeep Tyagi surrendered in court on 23rd June, 1994 and he was formally arrested. On his disclosure (Ex.PW14/H), a raid was conducted in the house at Ghaziabad to recover the articles of stridhan but entry into the house was denied. On 25th June, 1994, one relative – Shri Rajdeep Tyagi of the appellants produced a scooter UP-14A-6969 (old) which was taken into possession. Smt. Archana Tyagi, daughter of Ranbir Singh Tyagi was admitted to anticipatory bail whereafter she was formally arrested. On 13th January, 1995, Kusum Lata Tyagi was formally arrested. The challan against Ranbir Singh Tyagi had already been filed. A supplementary challan was filed in the court.
17. By orders on charge dated 19th August, 1997 passed by the trial judge, the appellants as well as Archana Tyagi (sister-in-law of the deceased) were charged with having subjected the deceased, Anju Tyagi to cruelty and harassment for coercing her and her parents to give Maruti car and other articles between 15th February, 1991 and 8th April, 1994, and thereby having committed offences punishable under Sections 498A of the IPC. A second charge was laid against the appellants as well as Archana Tyagi that they had subjected the deceased, Anju Tyagi to cruelty and harassed her in connection with demand of dowry during the said period and on 8 th of April 1994, her death was caused by some poisonous substance under abnormal circumstances within seven years of marriage and thereby they had been charged with commission of an offence punishable under Section 304B of the IPC.
The appellants as well as Archana Tyagi had pleaded not guilty and claimed trial.
18. The prosecution examined 16 witnesses in support of its case including close relatives of the deceased namely Shri Rajiv Kumar
– brother of the deceased as PW-3; Smt. Satyawati – mother of the deceased as PW-4; and Shri Madan Lal Tyagi – paternal uncle (chacha) of the deceased as PW-5. The evidence recorded by the prosecution was put to the four accused persons giving them opportunity to explain the same under Section 313 of the Cr.P.C. After a consideration of the matter in entirety, by the judgment dated 30th May, 2000, the learned Trial Judge found that so far as commission of offence under Section 498A was concerned, all three appellants were guilty of commission of that offence. However, for commission of offence under Section 304B, only Kusum Lata and Sandeep Tyagi were convicted. Thereafter, as aforenoted, an order on sentence dated 31st May, 2000 was passed against the three appellants.
19. On the same evidence, Archana Tyagi was acquitted of all charges by the same judgment.
20. We have heard Mr. Jayant K. Sud, learned counsel on behalf of the appellants as well as Ms. Aashaa Tiwari, learned APP for the State at length and given our considered thought to the matter.
21. We find that the entire thrust of the prosecution really rests on the two written statements, one dated 4th of March 1994 (Ex.PW3/A) and the second, being a document allegedly penned by the deceased on 11th of March 1994 (Ex.PW13/A). Significantly, these documents are also the first ever complaints made by the deceased against her husband and in-laws. The first of these writings was made more than one year and four months after the alleged incident of 12th January, 1993 while the second is about a week thereafter.
22. Before examining the submissions of counsel for the parties on the authenticity and veracity of these alleged statements in writing, it would be useful to consider firstly the submissions of the parties with regard to the medical status of the deceased after the 12th of January 1993.
Medical status and treatment administered to the deceased after the occurrence on 12th January, 1993
23. It is the case of the prosecution that on the 12 th of January 1993, the deceased Anju Tyagi was admitted to the Narinder Mohan Hospital, Mohan Nagar, Ghaziabad (U.P.). According to Dr. Vinod Bhatt – PW-11 of Narender Mohan Hospital, the deceased was brought to the hospital by her husband with an alleged history of having taken some “unknown quanity of finit” at around 8:00 am on 12th January, 1993 whereafter she had vomited many times. It is stated that she was treated at some nursing home prior to being brought at the hospital. At that time, Anju was “conscious but was drowsy” with a pulse rate of 86 per minute and blood pressure at 146/100.
24. The patient was given a stomach wash and as per the medical record, the sample was preserved for medico legal formalities. Dr. Bhatt has clearly mentioned that the police was also informed about her admission.
25. The injury report no.18715 recorded by the Narinder Mohan Hospital on 12th January, 1993 (Ex.PW11/A) and Anju Tyagi’s treatment sheet of the Narinder Mohan Hospital (Ex.PW11/B) reflect that the doctors were concerned about the respiration of the patient and she was on ambu bag assistance for it. The doctors recommended that she may be shifted to a better medical facility in Delhi.
26. On the 13th of January 1993, Anju Tyagi was admitted into the LNJP Hospital, New Delhi (Ex.PW7/A) when she stayed in the hospital for about 32 days till her discharge on 16th of February 1993. It is noteworthy that the provisional diagnosis at the time of this admission recorded by the doctor was “organophosphorous poisoning”. As per admission and discharge summary No.750152
– Ex.PW7/A of Anju Tyagi, Anju’s condition at the time of her discharge is reflected as “recovered”.
27. The deceased was admitted for second time to the LNJP Hospital on the 18th of March 1993 (Ex.PW8/A). This time she remained admitted for 12 days, to be discharged on 30 th March, 1993 with her medical condition having “improved”. The patient was admitted for second time with the complaint that she was having “organophosphorous poisoning with tracheal stenosis”. However, Doctor A.K. Aggarwal (PW-8), the treating doctor who proved the said record testified that Anju Tyagi was admitted on 18th March, 1993 with complaint of breathlessness w.e.f. 13th January, 1993. The witness stated that in order to relieve the respiratory problems, Anju Tyagi underwent surgery of tracheostomy on 26th January, 1993.
28. So far as the complaint of tracheal stenosis is concerned, Dr. Aggarwal (PW-8) deposed that the ideal treatment was not available in the LNJP Hospital and therefore she was discharged on 29th March, 1993 to undergo further treatment at the All India Institute of Medical Sciences (AIIMS) after her condition had improved.
29. The deceased was thereafter admitted to the AIIMS on 30 th of March 1993 where she unfortunately expired on the 8 th of April 1994. The medical records in relation thereto were produced by Shri Phool Chand – PW-15, Medical Record Clerk, AIIMS, New Delhi. Unfortunately, these records were not proved before the court.
30. The prosecution has relied on an alleged statement dated 4 th of March 1994 scribed by Anju Tyagi handed over by her to her uncle Shri Madan Lal Tyagi (PW-5) which he allegedly handed over to S.I. V.K. Joshi (PW-12), duty officer in the Police Station Krishna Nagar on 6th March, 1994. On this a rukka (Ex.PW3/A) was endorsed by ASI Ombir Singh and FIR No.84/94 (Ex.PW12/A) was registered under Sections 498A and 406 IPC. After registration of the case, the investigation was entrusted to S.I. Vinita Tyagi (PW-14). She submitted that she informed the SDM, Shri Amit Yadav (PW-13) for recording her statement.
31. PW-13 Shri Amit Yadav has submitted that the patient was unable to speak and that he had obtained a certificate of the doctor that she was not able to speak but fit to write (Ex.PW13/A). On 15th March, 1994, S.I. Vinita Tyagi (PW-14) conducted a raid on the house of the appellants in Village Ghukana with the assistance of local police of P.S. Sehani Gate for recovery of stridhan along with Satyawati Devi (PW-4). The articles of stridhan were pointed out by Smt. Satyawati Devi and were taken into possession vide recovery memo (Ex.PW1/A). Ranbir Singh Tyagi was arrested in the case and his personal search was undertaken vide Ex.PW14/A.
32. The only critical piece of evidence placed before us are two handwritten statements dated 4th March, 1994 (Exh.PW3/A) and 11th March, 1994 (Exh.PW13/A) to deceased Anju Tyagi. Would these be legally admissible in evidence? Let us briefly examine the legal position on this aspect.
Admissibility of a statement attributed to a deceased person
33. Section 32 of the Indian Evidence Act, 1872 contains a vital exception to the general rule of exclusion of hearsay evidence. It, inter alia, renders admissible the statement, written or verbal, of relevant facts made by a person who is dead, when the statement is made by him as to the cause of death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of death comes into question.
34. In the case reported at (2006) 6 SCC 671, Sudhakar & Anr. v. State of Maharashtra, the Supreme Court had occasion to examine the admissibility of a statement made by the deceased 11 days after the occurrence alleging rape by the appellants for considering the culpability of the appellants in her act of committing suicide 5½ months thereafter. The Supreme Court considered the celebrated pronouncement reported at 1959 CriLJ 108, Pakala Narayana Swami v. Emperor wherein it was held that the evidence, which would be admissible, must be one of the circumstances of the transaction. General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. There is no necessity for there to be a direct nexus between the circumstances and death and even distant circumstances could become admissible if it has nexus with the transaction which resulted in death (Ref.: 1997 CriLJ 833, Ratan Singh v. State of Himachal Pradesh as well as 1984 Cr.LJ 1738, Sharad Birdichand Sarda v. State of Maharashtra) This is the well settled legal position so far as contents of such statement are concerned. But the person who made it, is not available to prove it. Several well established tests and standard stand laid down by rules and judicial precedent. We note the important one hereafter.
Manner and standards of proof of a statement under Section 32 of the Indian Evidence Act
35. A statement attributed to a dead person has to satisfy certain well recognized conditions before it can be admissible in evidence as a dying declaration under Section 32 of Evidence Act. Such conditions are laid down in the landmark judgment of the Supreme Court in AIR 1958 SC 22 Khushal Rao v. State of Bombay which holds the field. In this binding judicial pronouncement, the Supreme Court conducted a review of the relevant provisions of the Evidence Act as well as judicial precedents of the Supreme Court and High Courts in India and laid down the principles thus:-
“16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that 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; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that 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; (5) that 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 far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying 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.”
(Underlining by us)
36. On the aspect of the scrutiny which the court has to conduct and the conclusion which could be drawn, based on a dying declaration is concerned, in para 17, the court had observed as follows:-
“17. Hence, 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 that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.”
(Underlining by us) These principles shall guide our consideration.
37. It cannot be disputed that the circumstances of the transaction which resulted in the death of Anju Tyagi are relevant in the present case where her husband Sandeep Tyagi and mother- in-law Kusum Lata were tried for having caused her homicidal death and convicted. Let us therefore, first and foremost examine the statements from the perspective of their contents as well as in the context of the other evidence on record.
Whether the deceased made any complaint(s) of demands for dowry and/or harassment against the husband and in-laws?
38. Given the prosecution case and the charges against the appellants under Sections 498A as well as 304B of the IPC, it is necessary for us to examine what is the material on record regarding dowry demands upon Anju Tyagi or her relatives and harassment caused to her by the appellants. For this purpose, the prosecution has mainly relied on accounts allegedly given by Anju Tyagi in two written complaints, one dated 4th March, 1994 (Ex.PW3/4) and the second dated 11th March, 1994 (Ex.PW13/A) as complaints against her husband and in-laws and pressed as admissible under Section 32 of the Indian Evidence Act, 1872.
39. It is noteworthy that it was the case of the prosecution that Anju Tyagi had made complaints about the above ill treatment and demands for dowry from her husband and in-laws through her upon her father; mother PW-4; brother PW-3; and paternal uncle (chacha) PW-5. Out of these close relatives, the prosecution has examined, Rajiv Kumar (PW-3), brother of the deceased was examined, her mother Smt. Satyawati (PW-4) and her uncle Shri Madan Lal Tyagi (PW-5).
40. The evidence on record establishes that PW-3 Rajiv Kumar reached his deceased sister on the 12th of January 1994 itself, shortly after her admission in the Narinder Mohan Hospital. He has also referred to prior visits to his sister during her stay in the matrimonial home. In the witness box, the witness categorically testified that his sister never complained of any maltreatment or harassment by the accused persons i.e. husband and in-laws and that she was all right in the house of her in-laws. He categorically stated that the accused persons had not made any demand of money, Maruti car or any other item.
41. The above testimony stands staunchly corroborated by his mother Smt. Satyawati (PW-4) who also unequivocally declared that no demand of money or Maruti car or any other item was made by any of the accused persons from her daughter. She has also clearly deposed that her daughter had never complained to her about any ill treatment or harassment by the accused persons for any reason till her death.
42. According to the prosecution, these two witnesses were resiling from their previous statements made during investigation and consequently, the prosecutor was granted permission to cross- examine both the witnesses. In cross-examination also, both of them denied the specific allegations that they had ever stated that Anju Tyagi has taken `30,000/- from their father as the same was required by the accused persons for construction of their house. They also denied having given the statement with regard to Anju Tyagi’s jewellery having been taken away by her mother-in-law. On the contrary, it is in the evidence of Rajiv Kumar (PW-3) that on 10th January, 1993, he had visited Anju’s house for giving “kothli” (customary presents on some occasions from the parents of the girl) but the same were not taken by Ranbir Singh Tyagi – appellant herein on account of a death of some relative.
43. The witnesses categorically denied the suggestion that the accused persons had demanded Maruti car or that she was given beatings by the accused persons on 9th January, 1993. Both witnesses also denied the suggestion that Anju Tyagi had given any written complaint while in AIIMS hospital that she had been physically or mentally tortured for failing to bring a Maruti car in dowry.
44. The prosecutor had specifically cross-examined the witnesses on the issue of some medicine having been administered to Anju resulting in her becoming unconscious. A further specific suggestion was put to PW-3 and PW-4 that under the pretext of a medicine, poison had been administered by all the four accused persons because Anju’s family had not fulfilled their desire of Maruti car. These suggestions were stoutly denied by them.
45. For the time being, we assume that Ex.PW3/A and Ex.PW13/A were actually penned by the deceased. Let us examine the contents of these two documents produced by the prosecution on record as the handwritings of Anju Tyagi. Mr. Jayant Sud, learned counsel for the appellants has painstakingly placed a comparison of the two statements relied upon by the prosecution.
He has pointed out not only the contradictions but also the extensive improvements in the second statement dated 11 th of March 1994. We briefly note some of the salient points mentioned in the two statements.
46. In Ex.PW3/A, the alleged statement dated 4th of March 1994, Anju Tyagi alleged that her mother-in-law had taken all her ornaments; father had given dowry more than his capacity; that 15 days after taking her ornaments, her in-laws told her to bring `30,000/- as they needed it for construction which money was given to her in-laws in March, 1992; that after returning from a marriage of her cousin (maternal uncle’s daughter) on 20 th February, 1992, her husband, mother-in-law and father-in-law told her to bring a Maruti car from her parents as it had been given to her cousin sister in her marriage.
47. In the document (Ex.PW3/A), it was also alleged that on denial of the demand, her husband, in-laws (father, mother and sister) started torturing her and her husband started beating her on the provocation of the mother-in-law. The deceased alleged being kept out of the room; once beaten by her mother-in-law with a stick because a tea cup was broken by her which resulted in bruising of her feet; and an attempt to kill her by pouring kerosene oil.
48. It was finally alleged in Ex.PW3/A that on 10 th January, 1993, when Anju’s brother came with customary gifts, he was not allowed to meet her as her face and feet were swollen. When Anju attempted to call her brother inside, her sister-in-law throttled her and did not allow her brother to meet her. The deceased is alleged to have penned that her in-laws demanded the Maruti car from her brother as well and when he showed incapacity, they insulted, abused him and threw him out of the house. The deceased alleged beating by her husband on 11th January, 1993 at night resulting in her getting unconscious and that on 12th January, 1993, when she regained consciousness, her husband gave her a cup of medicine and after that her mother-in-law gave her a glass of water. Her husband, mother-in-law and father-in-law then told her that thereafter she would not require medicines and she would be all right in a single dose after which all three of them went out of the room and shut the door. In Ex.PW3/A, it is written that Anju resumed consciousness one month thereafter in Irwin Hospital when she found her parents, brother and uncle by her side. Anju allegedly wrote that as she had lost her voice, she was sending the information in writing to the police station through this uncle.
49. So far as the second statement (Ex.PW13/A) dated 11 th March, 1994 i.e. the statement handed over to the SDM is concerned, it would also show that it is not a first person account given by a simple housewife. The statement uses expressions such as “prarthni” which suggests that it has not been penned by a simple housewife. The language therein is such as is used by the police in official correspondence.
50. This statement refers to a previous statement (ostensibly referring to Ex.PW3/A) and that Ex.PW13/A was in addition thereto. Ex.PW13/A is even more general than the previous document and non-specific and states that whenever her brother came to meet her, she was not allowed to meet; she was not permitted to make telephonic calls or send letters to her home; that if she ever wrote a letter, it was first censored by her in-laws and then posted; when she was sick, the accused persons did not provide medicines and still expected her to do entire household work, if she refused, she was beaten by her mother-in-law. Without specifying the date, month or year, it was alleged that she once said that she could not do the house work as she was suffering from fever and was giddy at which her mother-in-law pulled her hair and she was told that, if she did not want to work, then she should get a servant from her father’s home.
51. In the alleged statement dated 11th of March 1994 (Ex.PW13/A), reference to an alleged incident of 13th December is made (without specifying the year), complaining that when she went to see her mother in hospital, she had also taken her own treatment as well but was prevented by her mother-in-law from taking medicine from there on the pretext that they would get their treatment done, but it was not done.
52. Again reference is made to an alleged incident of May, 1992, (without specifying the date) when she was in her parent’s home. It is stated that Anju Tyagi’s husband and mother-in-law told her to give a phone call once her father agreed to give the maruti car and that, only then would they bring her back to the matrimonial home.
It is pointed out on behalf of the appellants that in her statement on 4th of March, 1994, this very demand was stated to have been made after the marriage of Anju’s cousin on 20th February, 1992.
The deceased further complains in Ex.PW13/A that when none came to pick her for two months, her brother took her to the matrimonial home whereupon her mother-in-law asked her why she had not told them about the Maruti car? Upon being told that her father could not afford to comply with the demand, her mother- in-law and sister-in-law had beaten her and stopped providing her food.
None of these grievances was made in her prior statement of 4th of March 1994 (Ex.PW3/A), a written document of multiple pages.
53. An examination of the contents would show that allegations of dowry demands spread over the entire period of her marriage are contained in the statement.
54. The above discussion would show that the contents of the written documents (Ex.PW3/A and Ex.PW13/A) are belied by the testimony of the close relatives of the deceased. The mother and brother of the deceased have denied all allegations of demand, cruelty and ill treatment levelled against the husband and in-laws in their court deposition. In fact, there is a categorical denial of the specific instances alleged in Ex.PW3/A by both these witnesses.
56. So far as the alleged incident on 12th of January 1993 is concerned, in both the statements i.e. Ex.PW3/A and Ex.PW13/A, it is stated that Anju Tyagi’s husband gave her a cup of medicine which she had drunk. This statement by itself is indicative of the material fact that the deceased had full confidence in her husband so as to voluntarily drink a cup of medicine given by her husband. This also illustrates that on the 12th of January 1993, there was no dispute between them. It is impossible to believe that any person could voluntarily drink a cup of poison without any protest or struggle that too when handed down by persons inimical to her.
57. In the above circumstances, Ex.PW3/A and Ex.PW13/A do not show either the cause of death or the circumstances of the transaction which resulted in the death of Anju Tyagi. We also note that there is not a remotest suggestion by the deceased that her husband offered her any poisonous substance to drink or that she took any poisonous substance at his instance or because of him in the writing or otherwise.
58. The claim of the deceased that she fell unconscious after drinking the medicine in Ex.PW3/A is also not supported by the independent medical records at the time of her admission in the Narinder Mohan Hospital which shows that though she was drowsy, she was conscious.
59. In (2014) 7 SCC 405, Umakant & Anr. v. State of Chhattisgarh, the Supreme Court doubted the genuineness of a dying declaration for the reason that the deceased had stayed in the hospital for 11 days when she would have many occasions to meet the doctors and other staff but had chosen not to give any complaint not tried to share her agony with them. The court also noted that in any case her parents would have informed the police about the incident because it was nobody’s case that they were prohibited in any manner from doing so.
60. We find that in the statement Ex.PW3/A as well as FIR No.84/94, Anju’s address has been referred to as 39, Silver Park, Shiv Puri, Delhi-110051 which is the residence of her parents who lived in Delhi while the accused persons even as per the prosecution were all residents of Ghaziabad (U.P.). The same address is reflected on the hospital records. Clearly the deceased was residing with her parents and relatives after the 12 th of January 1993 and in their care while in hospital. There is no evidence at all that this document, if written by Anju, was scribed uninfluenced by her relatives in a fit state of mind.
61. Anju Tyagi expired at the AIIMS. Hospitals in India are crowded places. Apart from doctors, nurses and staff, they are teeming with patients, attendants and visitors. Anju Tyagi was therefore, constantly surrounded by doctors, nurses, hospital staff, patients etc. She was in the company of and had full access to her close family members right from 12th January, 1993, during her stay in hospitals and outside. She would have been exclusively in the company of her family and relatives after her discharge from the hospital from 16th February, 1993 to 18th March, 1993 and thereafter.
62. The deceased had full opportunity to make a complaint not only to her relatives but to her treating doctors, nurses, police etc. of ill treatment, if any, which had been received at the hands of the appellants. Yet Ms. Aashaa Tiwari, ld. APP is not able to point out a single complaint ever having been made to any person against the husband and the in-laws from the date when she was married on 15th December, 1991 or from 12th January, 1993 when she was taken unwell by or on behalf of Anju Tyagi till she is alleged to have written the statement on 4th March, 1994, more than two years after the marriage and almost one year and two months after being taken to the hospital. There are also gross improvements in the statement dated 11th March, 1994 (Ex.PW13/A). All these circumstances lend considerable doubt to the genuineness of Exh.PW-3/A and Exh.PW-13/A.
63. In our view, the general complaints which are not specified by date and time, made more than one year after the deceased was completely with her close relatives, without any evidence of prior grievance cannot be relied upon to base a conviction for the offences with which the appellants were charged.
Whether the prosecution proved that Ex.PW3/A (dated 4 th March, 1994) and Ex.PW13/A (dated 11th March, 1994) were in the handwriting of the deceased?
64. Ms. Aashaa Tiwari, learned APP for the State points out that both PW-3 – Shri Rajiv Kumar and PW-4 – Smt. Satyawati Devi, brother and mother of the deceased have identified the writing of Anju Tyagi and confirmed that the writing on the complaint dated 4th March, 1994 was in the handwriting of Anju (Ex.PW3/A) which bore her signatures at point ‘A’. It is noteworthy that though the witnesses do say so, but they expressly clarified that the documents were not written by Anju Tyagi in their presence.
65. As per the prosecution, the deceased Anju Tyagi, daughter of Mohan Singh Tyagi, was unable to speak and consequently had detailed the ill treatment and dowry demands received by her at the hands of her father, mother, sister-in-law and husband in the writing dated 4th of March 1994 which she had allegedly handed over on the 6th of March 1994 at 11:20 am to her uncle Madan Lal Tyagi who had submitted the same to the Police Station Krishna Nagar as per DD No.7A. S.I. Vinita Tyagi has stated that this complaint was treated as a rukka based wherein FIR No.84/94 (Ex.PW12/A) was registered by the Police Station Krishna Nagar under Sections 498A/406 IPC.
66. The most important person, so far as Ex.PW3/A is concerned was the uncle of the deceased, who was stated to be present at the time of scribing the statement and to whom she handed over the statement. This uncle, namely Shri Madan Lal Tyagi, who appeared as PW-5, does not even remotely suggest that Anju made any complaint to him or ever wrote any statement or complaint; or handed such document to him or that he handed over the same to the police. Though the rukka contains his reference and Madan Lal Tyagi’s signatures are to be found on Ex.PW12/A, there is no reference to Ex.PW3/A in his testimony.
67. We also find that the signatures at the end of the statement; the description of the complainant as well as the particulars of the husband in Ex.PW3/A do not match the writing in the body of the complaint. The date below the signatures on the statement does not match the handwriting in which figures have been written in the body of the statement and is a clear and obvious interpolation. The evidence does not disclose us who made the same. There is no explanation at all for the different writings on the document.
Again the appellants had doubted that this statement is in the writing of the deceased. These writings has not been matched with any contemporaneous writing of the deceased or subjected to any examination by a handwriting expert as well. No writing of the deceased stands proved on record to enable the court to take a considered view thereon.
68. Interestingly, S.I. V.K. Joshi (PW-12) has stated that on 6th March, 1994 at 11:20 am, ASI Ombir Singh gave him a rukka which was a written complaint based thereon he recorded FIR No.84/94 under Sections 498A/406 IPC (Ex.PW12/A) and that it was handed over to S.I. Vinita Tyagi (PW-14) for further investigation.
S.I. Ombir Singh has not been examined.
69. We find one more distressing aspect of this case. Shri Mohan Singh Tyagi, father of the deceased was one critical witness so far as the payment of dowry amount; arranging the amount of `30,000/- or meeting the other demands of the husband and in-laws as well as the scribing of both the statements were concerned. The SDM (PW-13) has stated that the parents of the deceased were present when Anju wrote Ex.PW13/A. Both the documents refer to Shri Mohan Singh Tyagi having complied with demands made by the appellants. This material witness was not examined by the prosecution, clearly casting doubt on the truth of the contents of these documents.
70. So far as the second piece of writing dated 11th March, 1994 (Ex.PW13/A) attributed to Anju Tyagi was concerned, it was the prosecution’s case that it was handed over to the SDM, Mr. Amit Yadav (PW-13). We find that S.I. Vinita Tyagi (PW-14) has stated that on 11th March, 1994, she had gone to meet Anju Tyagi in the ward at the AIIMS hospital. It was stated that she was unable to speak as a pipe stood inserted into her throat. She claims to have informed Shri Amit Yadav, SDM telephonically about the recording of Anju Tyagi’s statement.
71. So far as her presence at the time of writing the statement is concerned, S.I. Vinita Tyagi has stated that she remained outside Anju’s ward at the time that she had penned the statement. This witness could give no details or particulars as to the time at which Anju commenced writing the statement or when it was concluded. No memo even was prepared by the police showing the seizure of the document.
72. The SDM Shri Amit Yadav was examined as PW-13 who went to AIIMS pursuant to information received by the police. Mr. Jayant Sud, learned counsel for the appellants would point out that there is a contradiction in the testimony of this witness vis-a-vis that of S.I. Vinita Tyagi, inasmuch as while the SDM had stated that the police had physically come to call him to the hospital, the police witnesses do not state so. Unfortunately, this witness had no recollection of whether he was escorted to the hospital; the time at which he reached the hospital or of who was present at the relevant time.
73. As per Shri Yadav (PW-13), the deceased was pointed out by some unidentified nursing staff in the ENT ward and that Anju Tyagi’s parents who were present, had told him that Anju wanted to give a statement. He also discloses that though police officers were present there but they were not by the side of the deceased when she gave the statement. According to PW-13, Anju Tyagi had taken only 15-20 minutes to pen the two page closely written statement. The witness was categorical that other than collecting the written statement, he did not conduct any other enquiry and that on her statement, the doctor had written a certificate that the patient was not able to speak but was fit enough to write.
74. The SDM does not disclose that he has made any effort even to verify the identity of the person who he claims to have scribed the statement and handed over to him. The statement is signed only at the end of the second page. He has not taken the precaution of obtaining any fingerprints on the document running into two pages. PW-13 Shri Amit Yadav has not cared to initial or append his signatures on either of the two pages of Ex.PW13/A.
75. Shockingly Ex.PW13/A is not even attested by the SDM (PW-13) on either page. He has not even cared to initial the pages so as to identify the document. The first page of Ex.PW13/A is not signed by the deceased. The writing of date below the signatures on the second page as well as the page numbering does not match the writing of the figures in the body of the document. These are certainly the unexplained interpolations.
76. The prosecution therefore, led no credible evidence at all as to where, when and how Ex.PW13/A and Ex.PW13/A was scribed. In the facts and circumstances of the case, we find that the bald statements of PW-3 brother and PW-4 mother of the deceased that Ex.PW3/A was in her handwriting by themselves cannot be relied upon. Their testimony to this effect required corroboration, especially, given the fact that there is no evidence at all of the date, time and place when the statements were scribed. The prosecution has thus miserably failed to establish that Ex.PW3/A and Ex.PW13/A are in the handwriting of and were actually scribed by the deceased Anju Tyagi or the circumstances in which the same was written down.
Fitness of the person making the dying declaration
77. The question of reliability of a dying declaration from one critical aspect arose for consideration before the Supreme Court in AIR 2007 SC 2020 State of Rajasthan v. Wakteng. In para 15 of this pronouncement, the Supreme Court emphasises that the court must be satisfied about the fitness of its maker to do so and observed thus:
“though 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 however it cannot be sufficiently emphasized that 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 a statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancor. Once, the court is satisfied that the dying declaration is true and voluntary, it is sufficient for the purpose of conviction”.
(Underlining by us)
78. As aforenoted, upon being satisfied with regard to the admissibility of a statement attributed to a deceased, the court must be satisfied that the person making the declaration was conscious and fit to make the statement. It is well settled that upon being so satisfied, even an uncorroborated dying declaration can be the basis for finding a conviction for murder. This proposition is unassailable.
79. The Supreme Court had occasion to consider the entire gamut of law relating to dying declarations; their admissibility and relevance in the pronouncement reported at (2001) 6 SCC 118 Smt. Laxmi v. Om Prakash & Ors. In this case, the prosecution was relying upon five dying declarations which included, firstly, a statement alleged to have been made by the deceased to the ASI on way from the residence of accused persons to the hospital; secondly, a statement of the deceased to the attending doctor; a third dying declaration alleged to have been made to the magistrate; a fourth dying declaration made to the investigating officer and the fifth declaration, alleged to have been made to her brother. These five statements attributed to the deceased coming from the mouths of different witnesses were not found worthy of being accepted or acted upon as such dying declarations to base a conviction thereon. It was held by the Supreme Court that none of these statements could form the basis for conviction of the accused persons, inter alia, for the reason that there was nothing to show that the deceased was in a fit state of mind and physical condition to have made the statement at the relevant time when it was recorded.
80. In Laxmi v. Om Prakash, the Supreme Court has pointed out that the admissibility of the dying declaration rests on the principle of necessity. The principles thereof have been culled out in the following terms in paras 28 and 29 of the pronouncement which shed valuable light on the issue under examination in the present case and read as follows:-
“28. A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of heresay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances. [see Tapinder Singh v. State of Punjab 1970 CriLJ 1415. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a 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. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das v. State of Rajasthan –  1 SCR 854 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a (SIC) con charge of murder. In Kako Singh @ Surendra Singh v. State of M.P. 1982 CriLJ 986: 1982 CriLJ 986 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh v. State of Punjab: 1983 CriLJ 985 this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh v. State of Punjab: 1981 CriLJ 998 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present”.
81. In the pronouncement of the Supreme Court reported at (2007) 11 SCALE 477 Nallapati Sivaiah v. Sub Divisional Officer, Guntur, Andhra Pradesh the court ruled thus:-
“28. In K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618: 1976 SCC (Cri) 473: AIR 1976 SC 1994] the Court having noticed the evidence of PW 20 therein who conducted the post- mortem that there were as many as 48 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries, came to the conclusion that in view of those serious injuries it was difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. It was also a case where the Magistrate did not put a direct question to the injured whether he was capable mentally to make any statement. In the circumstances this Court came to the conclusion that the Magistrate committed a serious irregularity in “not putting a direct question to the injured whether he was capable mentally to make any statement”. It has been observed that even though the deceased might have been conscious in the strict sense of the term, “there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence”.
The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured.
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35. In Laxman v. State of Maharashtra [(2002) 6 SCC 710: 2002 SCC (Cri) 1491] a Constitution Bench of this Court held: (SCC pp. 713-14, para 3) “3. … The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”
82. In the pronouncement of the Supreme Court reported at 2001 (3) SCALE 549 Arvind Singh v. State of Bihar, wherein also the prosecution case rested on a dying declaration made to the mother of the deceased, the court observed as follows:-
“20. 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.
(Emphasis by us) The courts have given a special scrutiny and have been cautious in accepting the statements attributed to the deceased as admissible under Section 32 of the Evidence Act for the reason that the accused has no opportunity of cross-examining the maker of the statement.
83. In a judgment reported at (2013) 197 DLT 608 (DB) State v. Kumari Mubin Fatima & Ors. authored by one of us (Gita Mittal J.). after considering the above precedents it was concluded thus:
“44. It is therefore, well settled that it is not the satisfaction of the person recording the dying declaration alone with regard to the fitness of the persons to whom the same is attributed but the court has to be satisfied that the person to whom the statement is attributed, was actually in a fit state of mind and actually made the statement which has been attributed to her.”
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153. It is well settled that dying declaration is a substantive piece of evidence which can be relied on, provided it is established that the same was made voluntarily and truthfully by a person who was in a fit state of mind. If so made, conviction can be based on the dying declaration. Medical evidence and surrounding circumstances cannot be ignored and kept out of consideration by the court placing exclusive reliance upon the testimony of a person recording the dying declaration.”
(Underlining by us)
84. We also find that PW-3 and PW-4, brother and mother of the deceased have claimed that Anju Tyagi was unconscious while in the Narinder Mohan Hospital; that she never regained consciousness and that, therefore, she had no occasion to tell them the cause of her going into “coma”. In other words, these relatives state that the deceased never gave them any information after she was hospitalized.
85. Even if it could be held that Ex.PW3/A is the writing of Anju Tyagi, we find that the prosecution has failed to establish the date, time or place when it was written, who was present and the other circumstances in which she penned such document. There is not a whit of an explanation as to why Anju waited till 4 th of March 1994 to make a grievance, though. The prosecution has completely failed to lead any evidence as whether the deceased was in a fit state of mind when this document was written. This reason by itself would be sufficient to make it wholly unsafe to rely upon such document.
86. We may also note that the SDM Shri Amit Yadav (PW-13) was required to have satisfied himself about the fitness of the deceased before he recorded the statement. He does not appear to have made any effort by himself to ascertain as to whether the deceased was in a fit state of mind to consciously make a voluntary statement.
87. In fact, a hand written certificate is appended to Ex.PW13/A which states that Anju Tyagi is admitted in ENT ward in AIIMS for the past one year and that she was “not able to speak but is fit ….(illegible portion)…. to write”. This certificate is signed by Dr. Ciba Annie Paul, Junior/ENT AIIMS, New Delhi. No date or time of issuance of this certification is mentioned thereon.
88. No medical fitness is endorsed at the beginning of Ex.PW13/A. A separate medical certificate is attached which the doctor has not dated. This certificate contains the initials of the SDM who has put the date of 11th March, 1994 below his initials. In fact, the statement attributed to the deceased and the medical certificate of Dr. Ciba Annie Paul read as if they are two independent documents.
89. PW-13 Shri Amit Yadav also does not disclose the date and time on which certificate was issued. He does not mention the presence of Dr. Ciba Annie Paul or any other doctor when the deceased commenced writing the statement or when she concluded the same.
In our view therefore, there is no evidence of the fitness of the deceased at the time Ex.PW13/A was scribed. The evidence does not establish that she was fit when she commenced writing the same and remained so when she concluded.
90. So far as recording of a dying declaration by a Police Officer, Doctor & SDM are concerned, Chapter-13A of the Delhi High Court Rules were adverted to in State v. Kumari Mubin Fatima & Ors. and noted in the following terms:
“54. Ms. Ritu Gauba, learned APP for the State has drawn our attention to chapter 13A relating to Dying Declaration of Volume III of the Delhi High Court Rules. Rules 3, 4, 7 and 8 are relevant and read as follows:-
“3. Fitness of the declarant to make the statement should be got examined – Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting or the attendance of the Medical Officer, the Judicial magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considered it impracticable or inadvisable to wait for a doctor’s attendance.
4. The Statement of the declarant should be in the form of a simple narrative – The statement, whether made on oath or otherwise, shall be taken down by the Judicial Magistrate in the form of a simple narrative. This, however, will not prevent the Judicial Magistrate from clearing up any ambiguity, or asking the declarant to disclose the cause of his apprehended death or the circumstances of the transaction in which he sustained the injuries. If any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the question also the answers which he receives. The actual words of the declarant should be taken down and not merely their substance. As far as possible the statement should be recorded in the language of the declarant or the Court language.
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7. Recording of a Dying declaration by a Police Officer or Medical Officer – Where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall, so far as possible, be got attested by one or more of the persons who happen to be present at the time.
8. Fitness of the Declarant to make a statement to be certified by the Judicial Magistrate or other officer concerned – The Judicial Magistrate or other officer recording a dying declaration shall at the conclusion of the dying declaration certify that the declarant was fit to make a statement and it contained a correct and faithful record of the statement made by him as well as of the questions, if any, that were put to him by the justice recording the statement. If the accused or his counsel happens to be present at the time the dying declaration is recorded, his presence and objection, if any, raised by him shall be noted by the judicial Magistrate or the officer recording the dying declaration, but the accused of his counsel shall not be entitled to cross-examine the declarant.”
91. Given the charges against the appellants in the present case, a statement, oral or written, if actually made by Anju Tyagi, independently made in sound and fit state of mind, uninfluenced and without force, fear or pressure with regard to the circumstances of her death would be admissible in evidence.
92. The prosecution was therefore, bound to establish not only that such statement was actually and voluntarily made by a person in full consciousness and fit state of mind without any kind of pressure, force and undue influence. There has to be certification from a doctor to the effect that the deceased was in a fit condition, mentally and physically, to understand the import of the statement which she was making.
93. As a rule of caution and prudence, several judicial precedents mandated that the statement must be in question and answer form. Unfortunately, the prosecution has miserably failed to discharge this onerous burden.
The above discussion would show that clearly there is no evidence at all that the deceased was fit to make a statement either when Ex. PW3/A was recorded on 4th March, 1994 or when Exh. PW13/A was recorded on 11th March, 1994. There is no reliable evidence to support the actual date or place of writing the two documents. There is no evidence at all of the times at which they were written.
94. The statement was scribed in the presence of the parents of the deceased which is the breach of a very basic safeguard for recording a dying declaration and lends substance to the appellant’s contention that the statement, if made when the deceased was in a fit state of mind, was tutored and influenced and ought not to be accepted for this reason as well. The statements attributed to the deceased also do not meet the requirements of Chapter-13A of Vol.III.
95. We also find that on 15th March, 1994, stridhan of the deceased was recovered from her matrimonial home vide seizure memo Ex.PW1/A. The appellants point out that these items were never produced in the court record.
Cause of death
96. It has been vehemently contended by Mr. Jayant Sud, learned counsel for the appellants that the cause of death of the deceased has no relation at all to the allegations of poisoning levelled against the appellant husband. It is further submitted that in any case, there is not even an iota of evidence to support the prosecution case and charge of the death of Anju Tyagi by poisoning.
97. It stands established during trial that Anju Tyagi was admitted for treatment four times in three medical facilities w.e.f.
12th January, 1993 till her death on 8th April, 1994 i.e. for a period of one year and around 2 months. Firstly in the Narender Mohan Hospital; on the 12th January, 1993; then on 13th January, 1993 in the LNJP Hospital till her discharge on 16 th February, 1993 because she had recovered. As per the medical record, again with “complaint” of organo phosphorus poisoning with tracheal stenosis, Anju Tyagi was admitted on 18th March, 1993 and discharged from LNJP Hospital on 29th March, 1993 with her condition having improved. However, she needed treatment for tracheal stenosis for which reason, she was referred to AIIMS hospital. There is evidence which establishes that Anju Tyagi had undergone a surgical procedure at AIIMS in her last admission on 30th March, 1993 which resulted in bleeding and resulted in her death on 8th of April 1993.
98. The above circumstances raise pertinent questions so far as the prosecution case is concerned. When and how did Anju imbibe “organophosphorus poisoning”? If she did in the house of in- laws, it was not fatal and she was discharged from LNJP Hospital on 16th February, 1993 having recovered (Ex.PW7/A). Did she drink the poisonous substance again between 16th February, 1993 and 18th March, 1993 when she was at her parents house as per the hospital record – Ex.PW7/A and Ex.PW8/A? The further question that how was poison administered to her and who did it remains completely in the dark. There is no evidence of the specification of the poisonous substance.
99. Dr. L.C. Gupta (PW-16) also proved that the viscera samples of the deceased including those of stomach, intestines, liver, kidney and spleen, blood samples as well as scalp hair, nails, part of sternum bones were preserved by the doctor to rule out any poison from chemical analysis, sealed and were handed over to the investigating officer for forensic examination. Dr. Gupta confirmed that the report of the forensic science dated 5th July, 1996 did not give any positive report with regard to presence of any poison on the samples, in the chemical analysis undertaken by Dr. S.K. Shukla. This could be because of passage of time as well.
100. It is significant to note that PW-16 Dr. Gupta also pointed out that despite preservation of the sample of the stomach wash etc. by the casualty of the Narinder Mohan Hospital, Ghaziabad, no report detecting poison in those samples from any forensic science laboratory was available on court records. Thus significant evidence was lost by the failure to investigate this factor, especially given the noting by this hospital regarding the case history. It is also noted that it was the husband Sandep Tyagi, who had taken Anju Tyagi to hospital.
101. Dr. L.C. Gupta appeared in the witness box to establish cause of death of the deceased and explained that the cause of death of Anju Tyagi was shock because of “hypo volamic anaemic shock” resulting from bleeding from the “surgically made stitched wound extending from epigastrium to supra extral notch just at median plan of the body”. As per column 8 of the post-mortem report (Ex.PW16/A), the body of the deceased had the following wound :
“Surgically stitched wound placed at midline chest startade from supra sternal notch to epigastrium with tension suture at 3 site at epigastrium. These stitch marks shows pus and slough formation.”
102. The medical texts explain “hypovolemia” as a state of decreased blood volume, more specifically, decrease in the volume of blood plasma which in this case has been attributed to the surgical made stitch wound during a treatment. So far as “tracheal stenosis” is concerned, that is described as narrowing of the trachea which causes breathing problem and can develop when scar tissue forms in a person’s trachea due to prolonged intubation or from tracheotomy, which is a surgery to create an opening in the neck to access the trachea, or when a breathing tube is inserted into the trachea to maintain breathing during a medical procedure. The medical evidence on record establishes that Anju Tyagi had been intubated in hospital and had undergone tracheotomy on 26 th January, 1993. It is in the statement of PW-14 that she went to AIIMS on 11th March, 1994 where the complainant Anju Tyagi was admitted. The complainant was unable to speak and a pipe stood inserted into her throat through her mouth.
103. Looked at from any angle, the prosecution has miserably failed to establish that Anju Tyagi had imbibed poison, which had resulted in her death.
104. The prosecution has failed to prove beyond reasonable doubt that the document dated 4th March, 1994 (Ex.PW3/A) and 11th March, 1994 (Ex.PW13/A) were actually scribed by the deceased Anju Tyagi voluntarily in a fit state of mind without any kind of force, undue influence and pressure. The same therefore, cannot be admitted in evidence under Section 32 of the Indian Evidence Act, 1872.
105. Once the alleged statements Ex.PW3/A and Ex.PW13/A are rejected, there is no evidence at all to support the prosecution case against the appellants Sandeep Tyagi and Kusum Lata Tyagi, for the charge under Section 304B of the IPC.
106. So far as the charge under Section 498A IPC against Ranbir Singh Tyagi, Kusum Lata Tyagi and their son Sandeep Tyagi is concerned, the prosecution has miserably failed to establish any demands made by the appellants upon the deceased or her relatives. On the contrary, the close relatives of the deceased, namely, her brother – Rajiv Kumar as PW-3 and her mother – Smt. Satyawati as PW-4 have categorically testified that there were no demands. They denied the specific instances of alleged demands on the part of the appellants. It is also in their evidence that the deceased was not subjected to any cruelty or harassment by her husband or his relatives. As such, there is no evidence to support the charge either under Section 498A IPC against the appellants in both the appeals or under Section 304BIPC against Sandeep Tyagi and Kusum Lata Tyagi.
107. The prosecution has failed to establish that the deceased Anju Tyagi had been administered poison or that she died as a result thereof.
Result In view of the above, the judgments on conviction dated 30 th May, 2000 and orders on sentence dated 31st May, 2000, impugned by way of CRL.A.Nos.352/2000 and 370/2000, are hereby set aside and quashed.
The appeals are allowed in the above terms.
The bail bonds and surety bonds furnished by the appellants are discharged.
Let the LCR be returned.
GITA MITTAL, J R.K.GAUBA, J AUGUST 24, 2016 aj