IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 26.09.2014
+ CRL.A. 664/1999
RAJ KUMAR ..... Appellant
Through: Ms. Anita Abraham, Advocate
Amicus Curiae and Mr. Ajeet Kumar, Advocate
Versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Richa Kapoor, Additional
Public Prosecutor for the State.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
KAILASH GAMBHIR, J
1. By this appeal filed under Section 374 of the Code of Criminal Procedure 1873 (hereinafter referred to as Cr.PC) the appellant seeks to challenge the judgment and order on sentence dated 16.11.1999 and 17.11.1999 respectively passed by the Court of Ld. Additional Sessions Judge, Tis Hazari Courts, New Delhi, thereby convicting the appellant for committing an offence under Section 302 of The Indian Penal Code, 1860 (hereinafter referred to as IPC) and sentenced him to undergo imprisonment for life and also be liable to fine of Rs. 2000/- and in Crl A: 664/ 1999 Page 1 default thereof to undergo Rigorous imprisonment for 6 months in terms of section 302 IPC and the Appellant was also convicted under Section 498A read with Section 34 IPC and was sentenced to undergo RI for two years and to pay fine of Rs. 500/- and in default to undergo rigorous imprisonment for three months.
2. Dowry death and bride burning are social evils which have marred the very concept of marriage being a sacramental and revered union. It is like an albatross around the neck. Ours is a country which is on the verge of development and it is heart wrenching to see that with the nation's development what is also rising is the increasing no. of cases relating to dowry deaths and bride burning, and if the National Crime Records Bureau's statistics are something to go by, then one woman dies every hour in the country. It is a crime that is so rampant in our country, where newlywed brides are often harassed for getting more dowry. However, perhaps the primary reason for the spread of this cancer has been the serious dearth of any public campaign or sensitization against it for the past 25 years. As a result, girls are considered a burden on their parents, families go bankrupt trying to get their daughters married off, choice in forming relations is frowned upon and thousands -- may be lakhs -- of Crl A: 664/ 1999 Page 2 young women suffer brutality quietly behind closed doors, because of an ancient tradition that is still prevalent in most Indian families. The material needs of the society like lust for money or sex etc. ravishes the very basis of this sacramental union called 'Marriage'. No doubt that there are many social & economic factors, governing the standard of living of various households, yet we feel that it is the righteous and moral duty of a husband that he fully discharges his matrimonial obligations for the sustenance of the family and does not aim to lead a laid-back life at the mercy of his wife's family, by making unwarranted demands or seeking financial backing.
3. In today's times when women walk shoulder to shoulder with men, pestering newly wedded females for dowry is still spreading like wild fire in every nook and corner and ruining a number of marriages, disbanding our faith in the social and cultural values. It's a curse which the society is facing. Crimes like suicide, bride burning have become common in poor and middle echelons of the society. In most of the cases, such acts are committed to satisfy one's unquenchable and insatiable greed for money and other material needs. In fact, these types of social crimes interfere with the entire societal fabric. The present case involves one such Crl A: 664/ 1999 Page 3 woman, for whom marriage became manacles of depraved windfall which ultimately took away her life.
4. The case of the prosecution in brief is that on the intervening night of 25/26 September, 1997 an information was given to the police at 12.10 a.m. by the Fufa of the deceased to the effect that in Street no. 38, B- Block, Aggarwal Building Material, Sant Nagar, Delhi, Rambir's daughter set herself on fire and the police immediately reached at the scene of crime and the PCR van moved the deceased Puspa in an injured and burnt condition to the hospital, where she was admitted and at the request of the IO, the SDM of the area i.e. PW-4 recorded the dying declaration of Smt. Puspa at 5.40 a.m. after getting the fitness certificate from Dr. Akash Kumar and consequently FIR no. 427/1997 was registered at P.S. Timarpur, Delhi u/s 498A/ 304B/ 302/ 34 IPC against the appellant herein and the co accused Shanti devi (Mother in law), Ms. Meena (sister in law), Mrs. Rajkumari & Mrs. Manju(both jethanis). That the investigating agency after the completion of its investigation submitted the challan and the case was committed for trial before the Sessions Court. Charges were framed by the Ld. Sessions Court, whereby the Appellant was charged under section 302 IPC and a separate charge Crl A: 664/ 1999 Page 4 under section 498 A/ 34 IPC was framed against the appellant and the other 4 co-accused namely; Shanti Devi (mother in law), Meena (sister in law), Rajkumari and Manju (both jethanis).
5. Prosecution tendered 15 witnesses in support of their case. Prosecution evidence was concluded and the statement of the accused persons under section 313 Cr.P.C was recorded wherein they admitted the factum of marriage but controverted the other incriminating evidence. They got examined three witnesses in their defense.
6. The Additional Sessions Judge, Tis hazari, New Delhi by judgment dated 16.11.1999 convicted the accused Raj Kumar, appellant herein for the offence under section 302 and also convicted the appellant and the other 4 co-accused namely; Shanti Devi, Meena, Rajkumari and Manju under section 498A/34 IPC. Hence the present appeal.
7. On behalf of the appellant, arguments were advanced by Ms. Anita Abraham, Advocate while on behalf of the respondent, submissions were made by Ms. Richa Kapoor, learned Additional Public Prosecutor for the State, Advocate. Short synopsis has also been placed on record by both the counsel.
Crl A: 664/ 1999 Page 5
8. Addressing arguments on behalf of the appellant, Ms. Anita Abraham, Advocate, vehemently contended that the appellant has been falsely implicated in the present case based on an uncorroborated and unreliable dying declaration of the deceased. Learned counsel for the appellant further substantiated her arguments under various heads which are as follows:
DISCREPANCIES REGARDING THE DYING DECLARATION:
9. Counsel submitted that PW-3 stated in her cross examination that two officials were present at the time of recording of the statement of the deceased by the SDM, whereas PW-4 (the SDM) stated that no official was present except himself, even no other family member was present. PW-3 stated that the SDM reached at around 6.00 a.m. whereas PW-4 deposed that he had finished recording the statement at around 5.40 a.m., hence it does not appear that the PW-3 had identified her daughter before the IO or SDM and hence the recording of the dying declaration is susceptible. Counsel further submitted that Doctor Akash Kumar who declared the patient fit for statement was not made a prosecution witness. Even Dr. Akash Kumar stated that he had declared the patient unfit and stated that it was difficult for her to make a statement when she has durmapetermal burns over her head and face.
Crl A: 664/ 1999 Page 6 Thus the prosecution has failed to establish this substantive piece of evidence and the same cannot be relied upon. It is further the trepidation of the counsel that the dying declaration was never recorded by the SDM, the testimony of PW-4 is highly doubtful, as he stated that the IO informed him at 4.30 a.m. about the incident however PW-9, the IO deposed that he had given the information at around 1.30 a.m. and the testimony of these witnesses, when seen together make the entire prosecution story seem doubtful. PW-4 also denied to have visited the place of crime, which on the other hand was contradicted by PW-2 who stated that the SDM came to the site of crime at 6.a.m. Counsel thus submitted that these discrepancies undoubtedly cast a shadow of doubt on the story of the prosecution and it looks to have been concocted. WHETHER DEMAND OF DOWRY IS SUBSTANTIATED AND IF AN OFFENCE UNDER SECTION 498A IS MADE OUT:
10. Counsel submitted that in his cross examination, PW-2 had himself stated that no complaint was lodged to the police regarding the harassment of the deceased or the demand for dowry. Learned counsel also submitted that there is a huge improvement in the testimonies of PW-2 and PW-3, as in their Court depositions they have levelled various allegations on the family of the accused, they deposed that they Crl A: 664/ 1999 Page 7 were told by their daughter about her being harassed by the mother in law, nanad and two jethanis and also stated that there was a frequent demand of dowry by the in laws, for which she was even beaten. It was also stated, that to sort out the matter, PW-2 and PW-3 were called to their son-in- laws house in Ashok Nagar , near Noida, but Pushpa , the deceased herein was thrown out of the house and PW-2, father of the deceased brought her back home, however the learned counsel further submitted that these vital facts were never stated by PW3 at the time of recording of her evidence with the police under 161 Cr.P.C which was recorded much after the recording of the dying declarationof the deceased. Further the Learned counsel pointed out that PW-2 and PW-3 even differ on the day when the accused came with the deceased to their house, wherein PW-3 states it to be on the same day whereas, PW2 states that it was 3-4 days after his daughter came back home. The Learned counsel further ardently pointed out that the charge sheet drawn is also not specific with regard to the offence committed under section 498A IPC. Thus, the learned counsel submitted that the witnesses PW-2 and PW-3 have made material improvements in their testimonies which make the prosecution story unpersuasive.
Crl A: 664/ 1999 Page 8
11. Counsel further submitted that PW-2 stated in his cross examination that Ganga Singh, brother-in-law of PW-2 had given the information to police by dialing 100 but contradicting his own statement, he has further deposed that Ganga Singh came at the spot after he got to know about the incident from him and this could be further supported by the deposition of PW-12 who stated that he had received a call at about 12.05 a.m. about the said incident and the same gets confirmed by the endorsement on the Rukka/ Dying declaration recorded by the I.O., PW- 9 vide D.D. entry no. 39. The learned counsel further emphasized that no mention of the presence of the accused at the spot was made by the complainant. The D.D. entry no. 39 was not even exhibited by the prosecution, therefore, making the entire version of the prosecution not credible.
WHETHER THE TESTIMONIES OF PW-2 AND PW-3 ARE RELIABLE:
12. Counsel submitted that there are ample discrepancies in the testimonies of PW-2(father) and PW-3(mother). Highlighting a few, the counsel submitted that the statement of PW-2 in his examination in chief appears to have been concocted, as in his cross examination he stated that when he came after an hour, he saw his neighbours, accused Raj Kumar and police officials present at the spot of the crime however Crl A: 664/ 1999 Page 9 in his examination in chief he stated that he came after he heard his daughter scream and saw that she was set ablaze. The learned counsel further submitted that even PW-3 in her examination in chief deposed that she had heard her daughter screaming and also that the son in law always taunted her daughter, because he wished to marry a modern girl, but the same was never stated in her first deposition while making her statement to the police under section 161 Cr.P.C. She in her cross examination denied to have stated to the police that her daughter was set on fire with a matchstick after kerosene oil was poured on her person. She also denied in her cross examination that she and her husband doused fire from the body of her daughter which is entirely different from what she deposed in her earlier statement. The learned counsel further submitted that PW-3 further denied stating to the police that the accused had set her daughter on fire with an intention to kill her. However, in her cross examination she stated that when it was asked from her daughter, she held that her husband had thrown kerosene oil on her, but the said fact is denied by PW-12, the Head Constable who took the deceased in the PCR vehicle to the Hospital. The Head Constable further stated that the deceased did not say anything about Crl A: 664/ 1999 Page 10 how she suffered such burns which clearly shifts the burden on the prosecution. Counsel also submitted that PW-3 time and again went to meet the accused in jail which shows that there were doubts in her mind and even in her examination in chief she never supported the case of the prosecution but it was during her cross examination on 30.9.08 that she supported the case of the prosecution, it is also pertinent to mention that during that gap , the petitioner had gone to meet the accused in jail a number of times, which clearly casts a doubt on the stand taken by PW- 3 as no person if he/she is sure of the other person being a perpetrator of the crime would go and repeatedly meet him in jail. DISCREPANCIES REGARDING THE DATE AND PLACE OF ARREST OF THE APPELLANT:
13. Counsel submitted that PW-2 in his examination in chief stated that the accused was apprehended at the door of the house when he tried to escape however in his cross examination he stated that the accused was arrested by the police after 12.30 a.m. at night which are two contradicting versions. PW-9, IO in his examination in chief stated that the accused was arrested on 28.09.97 in his presence, it appears highly incongruous as PW-14 , who was the I.O. of the case on 28.9.07 stated in his deposition that the accused was arrested from Sant Nagar on Crl A: 664/ 1999 Page 11 being pointed out by the father of the deceased. The learned Counsel submitted that it appears quite antithetical that the accused if even assumedly had thrown kerosene oil on the deceased would still be there in the premises, thus making the testimony of the witnesses look suspicious in this regard. Thus the discrepancies between the prosecution witnesses PW-2, PW-3, PW-9 and PW-14 stands unexplained by the prosecution and puts the entire case of the prosecution under suspicion.
RECOVERIES:
14. In the seizure memo, there is no recovery of the match box however PW-9 categorically stated to have seized a match box. The second witness to the seizure memo was never examined. Counsel submitted that there is a possibility that the issue of having recovered burnt hair from the spot was planted. Counsel further alleged that there is no independent evidence brought on record to establish the presence of the accused on the spot. No chance prints were available. The prosecution has also nowhere explained why all the recovered items were not sent for chemical analysis. Even the photographs of the spot of the crime were not taken.
Crl A: 664/ 1999 Page 12 INTENTION:
15. It was submitted by the learned counsel that the intention of the accused to kill the deceased cannot be imputed from the entire set of circumstances. Considering the ocular as well as the other evidences placed on record, the prosecution story seems uncertain and imprecise.
16. At last the counsel submitted that the appellant is a daily wager, remarried and has three children and being the sole bread earner of the family his case should be sympathetically dealt with. Based on the above submissions, counsel for the appellant prayed for acquittal of the appellant.
17. In order to support her arguments, learned counsel for the Appellant placed reliance on the following judgments:
a. Mohan Lal & Ors. V. State of Haryana, (2007)9SCC151 b. Nallapati Sivaiah V. Sub Divisional Officer, (2007) 11 SCALE 477 c. Shanmugam @ Kulandaivelu V. State of Tamil Nadu, (2002) 10 SRJ 489(SC) d. Uday Singh V State , 155 (2008) DLT 275(D.B)
18. Ms. Richa Kapoor, learned APP for the State, on the other hand fully supported the reasoning given by the learned Trial Court in Crl A: 664/ 1999 Page 13 convicting the appellant under Section 302 IPC and according to her; the same does not warrant any interference by this Court in exercise of its appellate powers. Learned APP for the State submitted that the dying declaration in the present case was recorded by the Sub Divisional Magistrate and there is no reason to challenge the credibility and independence of the Magistrate, in truthfully and correctly recording the last statement of the deceased. Learned APP for the State also submitted that the dying declaration of the deceased was recorded by the Magistrate after she was declared medically fit by the Doctor. Learned APP for the State also argued that the deceased has affixed her thumb mark on the dying declaration proved on record as Ex. PW-4/A which clearly reveals that the deceased was conscious enough to have conveyed her statement and then affirmed the same with her thumb impression. Learned APP for the State also argued that even the appellant had received burn injuries on his hand and fingers as per the MLC marked as PW 1/A, and therefore, cannot concoct a frivolous story of police having burnt his fingers when the entire chain of circumstances confirm to prove him guilty. Learned APP for the State has drawn the attention of this Court to the MLC of the deceased proved Crl A: 664/ 1999 Page 14 on record as Ex. PW-13/A wherein it has been stated that she had borne 55% burns and even in the Post mortem report marked as exhibit PW-5/ A the doctor conducting the same has opined that the scalp and hair of the deceased were reeking of kerosene oil. Learned Counsel further submitted that the death of Pushpa Devi took place within seven years of her marriage, based on the prosecution evidence and in the light of the facts of the case; there lies no possibility of suicidal or accidental death. Counsel also submitted that the deceased was harassed soon after her marriage and was called names and even in her dying declaration she has no where mentioned it to be an accident. Counsel further submitted that the accused is approbating and reprobating the entire piece of evidence and hence his false defense is only adding a link to the chain of circumstances. Learned counsel also submitted that no motive or ill will can be coined on the SDM to have falsely implicated the accused in the dying declaration thus this submission of the counsel of the appellant stating that the dying declaration is of no value is highly appalling. Based on the above submissions, learned APP for the State prayed for upholding the order of conviction and sentence passed by the learned Trial Court.
Crl A: 664/ 1999 Page 15
19. In order to support her arguments, learned counsel has placed reliance on the following judgments:
a. State of Madhya Pradesh V. Ram Prasad, 1968 Cr.L.J (SC) 1025 b. Wahid Ahmed V. State 2011 VII AD (Delhi) 276
20. We have heard learned counsel for the parties at a considerable length. We have also gone through the Trial Court record before taking a final view in the matter.
21. In the present case the deceased Pushpa was married to Raj Kumar, resident of village Eglass on 18.06.1997 at Delhi. Unfortunately, just within one month of her wedding, the demands of dowry were allegedly raised by her in laws, due to which she was harassed by her husband's family members including her Jethanis and nanand and was often beaten by them. When deceased's parents had gone to meet her in-laws in this regard after about three months of marriage, she was thrown out of the house on the grounds that demand for dowry is not being fulfilled, as the deceased's parents were poor. The deceased Pushpa Devi was brought back to her matrimonial home and her husband also came to stay with her after a few days. After 3 / 4 Crl A: 664/ 1999 Page 16 days of their stay together, she was allegedly burnt by him after some quarrel had ensued between them. The deceased was rushed to JPN hospital in a burnt condition where her dying declarationwas recorded by the Sub Divisional Magistrate and on 26.9.97, she succumbed to burn injuries. The text of the said dying declaration which was in question and answers form is reproduced as under for better appreciation:-
"q. What is your name? what is your husband's name?
a. My name is Pushpa devi and My husband's name is Raj Kumar.
Q. when did you get married and if you have any children?
A. I got married three months ago , I have no kids.
Q. How did u get burnt?
A. After having dinner yesterday night, I had a fight with husband. There were differences since sometime and as a consequence my husband poured kerosene oil on me and set me ablaze with the match stick. I shouted "Bachao bachao" then my husband even tried to extinguish the fire. Hearing my voice my parents came running.
Q. Did your husband trouble you before aswell?
A. My husband used to taunt me on my looks, that I do not look pretty, I was black and he wanted to marry someone stylish. He also said that he would get married Crl A: 664/ 1999 Page 17 again and when I was at my in laws house, my sister in law and both my brother in law's wives also used to call me black. The said dying declaration was recorded by the Sub Divisional Magistrate at about 05:40 p.m. in the JPN hospital."
22. As per the MLC report marked as Ex PW-13/ A, the deceased was admitted in the JPN hospital at 1.00 a.m. on 26th September, 1997. The history of assault as is recorded in the MLC would also be relevant and the same is reproduced as under:-
"Alleged history of sustaining burn injury by kerosene oil, Petitioner stated that my husband had put kerosene oil on me and then set me ablaze with the match stick."
23. The MLC also records that the patient was fully conscious and oriented. It further records that the burn injuries suffered by the victim were over 55% and also that the general condition of the victim was critical and the smell of kerosene oil was coming from her body.(The MLC was proved on record as Ex. PW-13/A).
In the present case, the counsel for the appellant at first challenged the credibility and truthfulness of the said dying declaration made by the deceased. The Counsel for the appellant contended that the dying declaration made by the deceased is uncorroborated and unreliable and therefore the conviction of the accused cannot be made solely on the Crl A: 664/ 1999 Page 18 basis of the said dying declaration. Apparently, the deceased was admitted in the hospital at 01.00 a.m. on 26th September 1997. At around 5.00 a.m. the police officer made an application to the Doctor, requesting him to allow the victim's statement to be recorded. On the application made by the police officer, Dr. Akash Kumar made an endorsement at Mark 'A' Ex PW13/A stating that the victim is "fit to make the statement". Thereafter, the SDM recorded the statement of the victim, which concluded at 05:45 a.m., HPS Saral, SDM in his court deposition fully supported the said facts and deposed that before recording the statement of Pushpa, police had obtained the opinion of the doctor as to whether the deceased was fit to make the statement or not and on which the doctor opined her to be fit to make the statement at about 3.20, 5.20 and 5.40 a.m.. The victim had endorsed the said dying declarationby putting her thumb impression marked as A on Ex. PW4/B. From the above factual matrix, it is clear that the dying declaration was recorded after a few hours since the victim was admitted in the hospital and after the fitness certificate was obtained from the concerned doctor. Thus the chances of it being embellished or tutored do not arise. Further a dying declaration made by a person on Crl A: 664/ 1999 Page 19 the verge of his death has a special sanctity as at that somber moment a person is most unlikely to make any fallacious statement. Dying declaration is based on the maxim "Nemo moriturus praesumitur mentire" i.e. a man will not meet his maker with a lie in his mouth; this maxim has been imbibed in the cases of:
a) Muthu Kutty Vs. State (2005)9SCC113
b) Vikas & Ors vs State Of Maharashtra, (2008)2SCC516
c) Manoj Kumar Verma Vs. State Crl.A. 3/2000.
The 'Truth' said Mathew Arnold "sits upon the lips of a dying man". The shadow of impending death is by itself a guarantee of the truth of the statement of the deceased regarding circumstances leading to her death.
The Bard of Avon, William Shakespeare has elucidated this viewpoint by way of the following sonnet:
Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away, Even as a form of wax, Crl A: 664/ 1999 Page 20 Resolveth from his figure, Against the Fire?
What is the world should Make me now deceive, Since I must lose the use of all deceit? Why should I then be false, Since it is true That I must die here, Live hence by truths?
(King John, Act V, Sect. IV)
24. It shall also be noted that the SDM is an independent and an impartial witness. It will be useful here to refer to the judgment of the Hon'ble Apex Court in Harjit Kaur V. State of Punjab, 1999 (3) RCR (Cri) 700, wherein the Court took a view that Sub Divisional Magistrate, being an independent witness holding high position had no reason to do anything which was not proper and therefore genuineness of dying declaration recorded by him could not be easily doubted and conviction recorded on that basis could not be maneuvered with. The germane portion of the judgment is extracted below:
"Whatever impression could be taken was taken by the S.D.M. The medical evidence in this case does Crl A: 664/ 1999 Page 21 not disclose that she could not have put her thumb mark on the Dying Declaration. We fail to appreciate how this circumstance can create any doubt regarding the evidence of this witness or genuineness of the Dying Declaration. P.W. 7 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bare suggestion made to him that the Dying declaration was manufactured by him after her death, we do not find anything in his cross-examination as would create any doubt regarding truthfulness of what this witness has deposed. We fully agree with the finding recorded by the courts below that the Dying declaration was voluntarily made by Parminder Kaur and that it was correctly recorded by P.W.-7."
25. It was submitted by the learned counsel for the appellant that the SDM did not record the said dying declaration himself, and PW-3 had stated in her cross examination that two officials were present at the time of recording of the statement of the deceased by the SDM, whereas PW-4 stated that no official was present except himself, even no other family member was present. PW-3 however stated that the SDM had reached at around 6.00 a.m whereas PW-4 deposed that he had finished recording the statement at around 5.40 a.m., hence it does not seem probable that PW-3 identified her daughter before the IO or SDM and hence the recording of the dying declaration is doubtful. Counsel further submitted that Doctor Akash Kumar who declared the patient fit for statement was Crl A: 664/ 1999 Page 22 not made a prosecution witness. We do not find any substance in these contentions because the SDM has categorically stated in his Examination- in-Chief that when he was recording her statement, nobody was present in the room. He deposed in the cross examination that only he and the deceased were present at the time of recording of the said dying declaration. Therefore, it is not suitable to hold that the dying declaration was recorded in the presence of other relatives. The other circumstances stated by the counsel for the appellant hold no relevance to the entire chain of circumstances. As regards the condition of Pushpa Devi, the SDM had stated that he had first ascertained from the doctor whether she was in a fit condition to make the statement and obtained an endorsement to that effect. Merely because the endorsement was made on the MLC itself but not on the application, would not render the dying declaration suspicious in any manner. The said endorsement made by the Doctor was produced by him and it has become evidence in the case.
26. It was further submitted by the learned counsel that the statement of Pushpa Devi was recorded by the witness in question and answers form. The deceased had narrated the incident and therefore the veracity of the said dying declaration cannot be questioned. The S.D.M. had obtained Crl A: 664/ 1999 Page 23 her thumb impression on it as well and thus we do not doubt the evidence of the SDM or the genuineness of the dying declaration. P.W. 4 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bald suggestion made to him that the dying declaration was manoeuvred by him after her death, we do not find anything in his cross-examination that would create any doubt on the veracity of what this witness has deposed. We fully agree with the finding recorded by the Courts below that the dying declaration was voluntarily made by Pushpa Devi and that it was correctly recorded by P.W.-4.
27. It is also a fairly well settled legal position that once the Court is satisfied that a dying declaration made by the victim was true and voluntary without there being any tutoring or prompting by any interested person, the conviction of the accused can be undoubtedly based on such a dying declaration without the need for any further corroboration. The rule requiring corroboration is merely a rule of prudence. In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, the Apex Court held as under:
Crl A: 664/ 1999 Page 24 "11. 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 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 Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]
(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 Uttar Pradesh v. Ram Sagar Yadav and Ors.
(AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]."
Crl A: 664/ 1999 Page 25
28. In Bapu vs. State of Maharashtra (2007) 2 SCC (Crl.) 545 = (2006) 12 SCC 73, the Supreme Court observed as under:-
"In Ravi & Anr. vs. State of T.N. 2004(10) SCC 776 the Supreme Court observed that "if the truthfulness of the dying declaration cannot be doubted, the same alone can form the basis of conviction of the accused and the same does not require any corroboration whatsoever, in law."
29. The principles governing the dying declaration were eloquently summed up long back by the Hon'ble Supreme Court in Smt. Paniben V. State of Gujarat AIR 1992 SC 1817. The same are reproduced as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the court is satisfied that dying declaration is true and voluntary it can base conviction on it, without corroboration.
(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 opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv)Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
Crl A: 664/ 1999 Page 26
(vi)A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(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.
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where the eye-witness has said that the deceased was in a fit conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(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.
30. In the background of the aforesaid legal position, we do not find any force in the contention raised by the counsel for the appellant that the dying declaration made by the deceased is untrustworthy and does not inspire confidence and therefore the conviction cannot be based on the same.
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31. Even otherwise, impartiality and independence of the Sub Divisional Magistrate in recording the statement of the victim cannot be questioned unless the defence is able to place on record such material evidence clearly showcasing some personal interest of the Sub Divisional Magistrate or that for some other extraneous reasons he would go to the extent of fabricating such an important piece of evidence. Therefore, we do not find any force in the said argument raised by learned counsel for the appellant that the deceased was not in a position to record such a lengthy statement and affix her thumb mark at the end of the dying declaration.
32. It will also be significant to refer to the decision of the Constitution Bench of the Apex Court in the case of Laxman V. State of Maharashtra, 2002 Crl.L.J. 4095 wherein also the Hon'ble Apex Court had an occasion to consider the similar aspects regarding the authenticity of dying declaration, where doctor's certification regarding the fitness of a victim had not been taken and the Court took a view that if a person recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned. The Court further held that the dying declaration can be oral or in writing and any adequate Crl A: 664/ 1999 Page 28 method of communication whether by words, gestures or otherwise will suffice provided the indication is positive and definite. The Court also took a view that there is no requirement of law that the dying declaration must necessarily be made to a Magistrate and when the statement is recorded by the Magistrate there is no specified statutory form for such recording. The Court also held that a certification by the doctor is essentially a rule of caution and, therefore, voluntary and truthful nature of the declaration can be established. The relevant para of the said judgment is reproduced as under:-
"The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-
examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The Court, however has to always 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 Crl A: 664/ 1999 Page 29 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 look 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 in 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 is 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."
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33. Reiterating the same principles the Apex Court in Sher Singh and Anr. Vs. State of Punjab 2008 AIR 2008 SC 1426 also took a view that 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. Relevant para of this judgment is reproduced as under:-
"Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness.
The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 without there Crl A: 664/ 1999 Page 31 being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise."
34. Thus in the view of the above legal position and the factual matrix of this case, we are not persuaded by the contention of the counsel for the appellant, and we do not find any infirmity in the dying declaration, made by the deceased, which is fully supported by the medical evidence and the evidence of PW-4, SDM.
35. Next contention raised by the counsel for the appellant was that at the time of the incident even the appellant was not present at the house and therefore, the appellant could not have committed the said crime. It is a settled legal position that the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place. The plea therefore succeeds only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. Apparently, the accused has not placed anything on record to show that at the time of the alleged incident he was not present at the place of the incident or that he was present at some other place so far away from the Crl A: 664/ 1999 Page 32 place of the incident that he could not be present at the place of incident at the same time. Apart from this, the evidence placed on record clearly shows the presence of the accused at the place of incident, at the alleged time, as history of assault as recorded in the MLC of the accused is "all five fingers showing burn marks, blobs and serious watery discharge from the right hand". We therefore, do not find any merit in the argument of the Ld. Counsel for the appellant that at the time of the incident even the appellant was not present at the house.
36. The additional link in the chain of incriminatory circumstances against the accused is the statement given by him under Section 313 of Cr.PC wherein on being asked about his MLC report, in which the Doctor has recorded burn injuries in five fingers, blobs and serious watery discharge from the right hand, he deposed that the said burns were caused by the police to get a false MLC. This shows that the accused is lying through his teeth.
37. When the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, and rather gives a false answer with respect to the same, the said act may be counted as providing a missing Crl A: 664/ 1999 Page 33 link for completing the chain of circumstances (Ref: Sunil Clifford Daniel v. State of Punjab, reported in (2012) 11 SCC 205).
38. The judgment of the Supreme Court in the case of Harivardan Babubhai Patel v. State of Gujarat (2013) 7 SCC 45 speaks of this very aspect of a case wherein the accused has merely denied his guilt and failed to give any explanation under Section 313 of the CrPC of the incriminating circumstances against him. The relevant portion is extracted below, "Another facet is required to be addressed to.
Though all the incriminating circumstances which point to the guilt of the accused has been put to him, yet he chose not to give any explanation under S.313 of the Cr.PC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. In the case at hand, though a number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him."
Crl A: 664/ 1999 Page 34 39. The Apex Court in the case of S. Govindaraju vs. State of Karnataka 2013 (10) Scale 454 has held:
"It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v State of Haryana, AIR 2013 SC
912).
This Court in Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181 held as under:
Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which has come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances."
40. In Trimukh Maroti Kirkan Vs. State of Maharashtra 2006(10) SCC 681, the Supreme Court has held as under:-
"In a case based on circumstantial evidence where no eye- witness account is available, there is Crl A: 664/ 1999 Page 35 another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran 1999CriLJ4552 ; State of U.P. v. Dr. Ravindra Prakash Mittal 1992CriLJ3693 ; State of Maharashtra v. Suresh (2000)1SCC471 ; Ganesh Lal v. State of Rajasthan 2002CriLJ967 and Gulab Chand v. State of M.P. [1995]3SCR27 ]."
41. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of the Supreme Court as well as the High Courts. The locus classicus on this law is the decision of the Supreme Court rendered in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 in which the following dicta was laid down:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v.
Crl A: 664/ 1999 Page 36 State of Maharashtra (1973) 2 SCC 793: 1973 Cri LJ 1783 where the observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
42. Another contention raised by the learned counsel for the appellant was that that there was neither any eye witness of the alleged incident nor the two prime witnesses produced by the prosecution i.e. PW-2, 3 tendered their testimonies in corroboration. Undoubtedly, these witnesses did not stand firm in their Court depositions and spoke contrary to their initial statements made under Section 161 of Cr.P.C. However it is a matter of common knowledge that anything said or made by the husband Crl A: 664/ 1999 Page 37 to wife or vice-versa is treated as a privileged communication founded on law and ethic. Further it is pertinent to note that none of these witnesses were present at the spot of crime at the relevant time, thus they cannot state any fact as to what would have happened at the time when the accused burnt his own wife and the evidence of all these witnesses, at its best, could have supported the case of prosecution only to the extent that it could prove the embittered relations between the accused and the deceased. Thus, even if there are certain minor discrepancies, their evidence will in no way affect the prosecution version that, on the alleged day, the accused had burnt his wife.
43. In the light of the aforesaid discussions we find ourselves fully satisfied that the said dying declaration was made by the deceased voluntarily and honestly, free from any kind of tutoring or prompting, and it was duly recorded by the SDM.
44. There lies no merit in the present appeal. The learned Trial Court has rightly convicted the appellant for the offence committed by him under Section 302/498A IPC. Hence, the judgment and order on sentence dated 16.11.1999 and 17.11.1999 respectively passed by the learned Sessions Judge is upheld.
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45. The present appeal accordingly stands dismissed.
46. Sentence of the accused Raj Kumar, appellant herein was suspended vide order dated 28th October, 2003 and he was released on bail. His bail bond is cancelled and surety stands discharged. Accordingly, the Appellant - Raj Kumar is ordered to surrender forthwith, failing which the Trial Court is directed to take necessary steps to arrest the appellant - Raj Kumar to serve the remainder of sentence. A copy of this order be also sent to the concerned Jail Superintendent for information and necessary compliance.
KAILASH GAMBHIR, J.
SUNITA GUPTA, J.
SEPTEMBER 26, 2014
v
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