Raj Kumar vs State
2001 Latest Caselaw 375 Del

ORDER

Arijit Pasayat, C.J.

1. Allegations of patricide were levelled against Raj Kumar (hereinafter referred to as the accused). It was alleged that he along with his mother Smt Chandra Wati were responsible for homicidal death of Ramesh Kumar, (hereinafter referred to as the deceased). The accused faced trial for commission of offence punishable under Section 302/34 of Indian Penal Code, 1860 (in short IPC). Learned Additional Sessions Judge found accused guilty of offence punishable under Section 302 IPC and sentenced him to undergo life imprisonment.

2. On 5.4.1991 at about 11.45 p.m. a message was received at Ashok Vihar Police Station from Police Control Room about information having been received from one Surinder Kumar of JJ Colony, Wazirpur, about some quarrel in house No. 251. On getting such information DD entry No. 24A was registered and a copy was given to ASI Raghbir Singh who reached at the spot. There he learnt that deceased Ramesh Kumar had been taken to hospital in injured condition; Accordingly, he went to Hindu Rao Hospital he obtained MLC. The attending doctor had recorded a dying declaration of the injured in the MLC. The injured was declared to be in a fit condition to make a statement. Accordingly, his statement was recorded by the Police officer. As per the statement recorded, the deceased was a tailor by profession and was married to Smt. Chandra Wati. His brother-in-law's wife Prem Wati used to visit their house sometimes. Chandra Wati and the accused suspected illicit relation betweens the deceased and the said Prem Wati. On the fateful day, he was present at his house. The accused alleged that he (deceased) was spending his entire earning on Prem Wati, but his family members were being harassed, and additionally he returned home daily consuming liquor. This resulted in a quarrel. Accused brought a knife from inside the house and told the deceased that he would teach him a lesson and attacked the deceased. Chandra Wati and his daughter Seema tried to intervene, but the accused gave blows on various parts of the body of the deceased. In the meantime PCR van came and the deceased was admitted in Hindu Rao Hospital. FIR No. 122/91 was registered under Section 307 IPC and an another statement in the nature of dying declaration was recorded by the SDM at about 12 noon. However, after the death of the deceased on 15.4.1991 the case was converted into under Section 302 IPC.

3. Prosecution examined 23 witnesses to further its case. Urmila (PW3) and Seema (PW6) were two daughters of the deceased, who claimed to be eye witnesses. One Surinder Kumar (PW11) also claimed to be an eye witness. As noted above, three dying declarations were pressed into service. One is MLC recorded by the doctor (Ex.PW21/A). Out of the other two, one (Ex.PW16/B) was recorded by ASI Raghbir Singh (PW16), and the other (Ex.PW10/A) recorded by the SDM (PW10). Two witnesses were examined by the accused persons to prove their innocence. During trial Urmila (PW3), Seema (PW6) and Constable Surender Kumar (PW11) resoled from the version recorded during investigation but learned Trial Judge leaving out evidence of these witnesses, considered the three dying declarations. The declaration made before the doctor (PW21) and that before SDM (PW10) were disbelieved. However, reliance was placed on the evidence of PW16 and placing reliance on the dying declaration (Ex.PW16/B) the accused was found guilty. Reference was made to the quarrel that took place and assault made by the accused with the knife brought from the house after the quarrel started. As indicated above he was convicted for commission of offence punishable under Section 302 and was sentenced to undergo imprisonment for life. However, it was held that the prosecution has not been able to make out a case against Chandra Wati and she was given the benefit of doubt.

4. In support of the appeal learned counsel for the accused submitted that the trial court should not have believed any one of the three dying declarations more particularly when entirely different versions have been indicated in the so-called dying declarations. Additionally, it is submitted that alleged occurrence took place during the course of sudden quarrel and therefore section 302 has no application. It is submitted that exception 4 to Section 300 would apply to the facts of the case. Learned counsel for the State, on the other hand, submitted that even if some portion of the evidence of PWs 3, 6 and 11 were kept out of consideration yet in material particulars they support the prosecution stand and merely because some doubt has been entertained about the correctness of the dying declarations made before the doctor and the SDM, reliance on dying declaration made before the police cannot be faulted. According to him, the case was one where Section 302 has been rightly applied.

5. It is well settled principle of law and in fact there is no dispute to the position that dying declaration can form the sole basis of conviction provided it is free from infirmities and satisfies various tests as were laid down by the Apex Court in Khushal Rao v. The State of Bombay, . The ratio laid down in the said case was that the statement should be consistent throughout. If the deceased had several opportunities of making such dying declaration, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and in a fit mental condition, it can be relied upon without even any corroboration. This position was again reiterated by the Apex Court in Kamla v. State of Punjab, 1993 Crl.L.J. 68. The dying declaration is a statement of a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act, 1872 (for short the Evidence Act), in a case in which the cause of that person's death comes into question. A dying declaration is not a deposition in court and it is neither made on oath or in the presence of the accused. Resultantly it cannot be tested by cross-examination on behalf of the accused. A dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence on the principal of necessity. This position was highlighted by the Apex Court in Tapinder Singh v. State of Punjab, and Paparambaka Rosamma v. State of A.P. , .

6. Section 32 of the Evidence Act deals with a case in which statement of relevant fact by the person who is dead or cannot be found etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen, it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60 of the Evidence Act. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might defeat the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every notice to falsehood is silenced, and the mind is inducted by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. These aspects have been eloquently stated by Iyre LCR in (1789) 1 Leach 500.

7. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri- a man will not meet his maker with a lie in his mouth." This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a man is on the death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

8. 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 assailants. 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. The Apex 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, :

i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Mannu Raja v. State of M.P. ).

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 Ramavati Devi v. State of Bihar, AIR 1983 SC 154).

iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration,. (See Ram Chandra Reddy v. Public Prosecutor: )

iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence (See Rasheed Beg v. State of Madhay Pradesh: ).

v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kaka Singh v. State of M.P., AIR 1992 SC 1021).

vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (See Ram Manorath v,. State of U.P.: 1981 SCC (Crl) 561)

vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurthi Laxmipati Naidu : ).

viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdev Ors. v. State of Bihar, ).

ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Navaho Ram and Anr. V. State: ).

x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan : ).

xi) Where there are more than one statement in the nature of dying declarations, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be truth worth and reliable, it has to be accepted. (See Mohan Lal v. State of Maharashtra, ).

9. In the light of the above principles, we will consider the acceptability of alleged dying declarations in the instant case. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P, ; Goverdhan Raoji Chayare v. State of Maharashtra, ; Meesala Ramakrishnan v. State of A.P., , and State of Rajasthan v. Kishore, ).

10. Learned Trial Judge has dealt in detail as to why he has placed implicit reliance on the second dying declaration in point of time. The MLC was recorded on 6.4.1991 at 00.20 hours. Statement recorded by the police was at 12 noon and by the SDM it was recorded later. It is to be noted that in all the three declarations role played by the accused was highlighted. Learned Trial Judge, after analysing the factual position, has recorded that the statement contained in Ex PW 16/B to be spontaneous and unblemished. It is to be noted that the statement recorded MLC was disregarded on the ground that at that stage the deceased would not have been in a fit state of mind to give a statement. But, after treatment was given his condition had improved and it was certified that he was in a fit statement of mind to give a statement. As was observed by the Apex Court in Som Nath v. State of Haryana, , "to discredit such dying declaration for short fall here and there or even in many places, is unrealistic, unnatural and unconscionable if basically there is a credibility".

The analysis made by learned Trial Judge vis-a-vis the dying declaration recorded y the police suffers from no infirmity to warrant a different conclusion.

11. Further question is about applicability of Exception 4 to Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditations but while in the case of Exception I there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatsoever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blow on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame-be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place for which both parties are more or less to be blamed. It may be that one of them starts it but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a). without premeditation (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion required that there must be no time for the passion to cool down and the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provisions means 'unfair advantage'. Considering the background facts as indicated, inevitable conclusion is that the requisite ingredients are present, and, therefore, Exception 4 to Section 300 IPC has application to the facts of the case.

12. Accordingly, we alter the conviction to Section 304 Part II IPC. The custodial sentence of eight years would meet the ends of justice. Accused whose sentence has been suspended by order dated 9.2.1995 shall surrender to custody to serve the balance period of sentence after adjustment of sentence already undergone, if any, Appeal is allowed to the extent indicated.