Delhi High Court
Jai Devi vs State Of Delhi on 26 March, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: March 17, 2010
Judgment delivered on: March 26, 2010
+ CRIMINAL APPEAL NO. 228/1997
JAI DEVI ..... Appellant
Through: Mr.K.B.Andley,
Sr.Advocate alongwith Mr.
M.L.Yadav, Advocate.
Versus
STATE OF DELHI ..... Respondent
Through: Mr.Sunil Sharma, APP
CORAM:
HON'BLE MR. JUSTICE A.K.SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in Digest ? Yes
AJIT BHARIHOKE, J.
1. Shiv Kumar s/o Makhan Lal, Raj Kumar @ Kishore Kumar and
Ms. Jai Devi w/o Navneet were challaned in Sessions case
No.570/93 FIR No.120/93 Police Station Vivek Vihar. They were
charged under Section 498A IPC and Section 302 IPC both read
with Section 34 IPC for subjecting Ms.Archana w/o Shiv Kumar
to cruelty and committing her murder on 18th April 93 at
11:00am at their House No.7/308A, Jwala Nagar, Pandav Road,
Biswas Nagar, Delhi. On conclusion of trial, the learned
Additional Sessions Judge vide impugned judgment dated 23rd
May 1997 acquitted the accused Shiv Kumar and Raj Kumar @
Kishore on both counts. Appellant Jai Devi, however, was
convicted on the charge under Section 302 IPC, and acquitted
for the charge under Section 498A IPC. Feeling aggrieved of
her conviction and sentence for the offence under Section 302
IPC, Ms. Jai Devi has preferred this appeal.
2. Briefly stated case of the prosecution is that on 18th April, 93 at
around 11.20 am, Duty Officer, P.S. Vivek Vihar, on receipt of
the information from ASI Banarsi Das on wireless that a lady
has got burnt at House No.7/308, Patel Gali, Jwala Nagar, New
Delhi, recorded DD No. 4A (Ex.PW15/A).
3. It is further the case of the prosecution that on 19th April 93
Shri B.P.Singh, Executive Magistrate (PW6) on the directions of
the SDM Shahdara visited GTB Hospital at 12.00 in the
afternoon for recording the dying declaration of the deceased.
She was declared `fit for the statement‟ by the doctor. So PW6
Shri B.P.Singh recorded the dying declaration Ex.PW6/A
wherein she stated that on 18th April 93, her mother-in-law,
quarrelled with her and gave her beating. Thereafter, she
poured kerosene oil on her and set her on fire. She also stated
that her younger devar (brother-in-law) wanted to have
physical relations with her and her husband Shiv Kumar and
brother-in-law Raj Kumar as also her mother-in-law used to
taunt and harass her for bringing insufficient dowry. She
stated that her mother-in-law, husband and brother-in-law
were responsible for her burning. PW17 ASI Bachan Singh,
Investigating Officer had earlier recorded the dying declaration
Ex.PW17/A wherein she had stated that she was married about
3 years back and she never had any quarrel with her husband.
She further stated that while she was putting kerosene oil in
the stove for heating the water, by accident, the oil fell down
which resulted in sudden fire. When she raised an alarm, the
neighbours came there and put off the fire by putting a blanket
on her. Her said statement is Ex.PW17/A (/Ex.PW14/DA). ASI
Bachan Singh appended his endorsement Ex.PW5/A on the
aforesaid dying declaration Ex.PW6/A and sent it to the police
station for the registration of the case.
4. ASI Bachan Singh returned back to the spot of occurrence after
recording the statement of the deceased. On inspection of the
spot, he found an oil stove Ex.P1, a plastic can slightly burnt
having some kerosene oil Ex.P2, a half burnt matchbox and
some burnt matchsticks Ex.P3, some burnt pieces of saree
Ex.P4 and a half burnt blanket which he seized vide seizure
memos Exhibits PW12/A to Ex.PW12/E respectively. On 19th
April 93, after recording of dying declaration of the deceased
by the SDM, he arrested the appellant Jai Devi as well as her
co-accused persons Raj Kumar and Shiv Kumar. On 20th April
93, information of death of the deceased Archana was received
through Duty Constable at the hospital which was recorded as
DD No.10A. ASI Bachan Singh, on receipt of said information
went to the hospital and conveyed the information to the area
SDM with the request to hold the inquest proceedings. The
SDM conducted the inquest proceedings and, thereafter, the
FIR was converted into a case of murder. The dead body was
sent for post mortem and after the post mortem, the dead
body was entrusted to the father of the deceased against the
receipt Ex.PW17/C. On completion of formalities of
investigation, a challan under Section 498A/302 IPC read with
Section 34 IPC was submitted against the appellant as well as
her two sons Shiv Kumar and Raj Kumar.
5. The appellant Jai Devi and her co-accused Shiv Kumar and Raj
Kumar were charged for the offences punishable under Section
498A IPC read with Section 34 IPC and Section 302 IPC read
with Section 34 IPC. All the three accused pleaded innocence
and claimed to be tried.
6. In order to bring home the guilt of the appellant, prosecution
has examined 17 witnesses in all. PW1 Om Prakash and PW2
Sanjay Kumar are father and brother of the deceased
respectively. They have not supported the case of the
prosecution in respect of any dowry demand or harassment or
torture meted out to the deceased by the appellant or her
other two co-accused persons.
7. PW3 Navneet is the husband of the appellant. According to
him, on 18th April 93 at around 11:00 am, he was present on
the terrace of his floor. On hearing the shrieks, he went
upstairs and saw the deceased aflame. He covered her with a
blanket to extinguish the fire and raised alarm. His neighbour
Hari Om came on hearing the alarm whom he sent to call his
son from the Kerosene Depot. Shiv Kumar came along with
Hari Om and took the deceased to GTB Hospital. He has
deposed that at the relevant time, neither Shiv Kumar nor Raj
Kumar were present at the house. PW4 Hari Om has also
deposed to the similar effect.
8. PW6 Shri B.P.Singh is a material witness. He was working as
Executive Magistrate at the relevant time. He has stated that
on 19th April 93, on the instructions of the SDM, Shahdara
conveyed through ASI Bachan Singh, he visited GTB Hospital at
around 12:00 in the afternoon. The doctor declared the
deceased fit for making the statement, so he recorded her
dying declaration in question-answer form. He has proved the
dying declaration Ex.PW6/A.
9. PW8 Dr.N.K.Aggarwal is the Autopsy Surgeon. He conducted
post mortem examination on the body of the deceased. He has
deposed that on examination, he found superficial to deep
burns covering 100% of the body surface area with blisters
with serous fluid present at places. He has proved his report
as Ex.PW8/A. He opined that in the absence of any chemical
analysis report of viscera, the cause of death was toxaemia as
a result of ante mortem superficial to deep burns covering
100% body surface area.
10. PW9 Dr. T.Gupta, CMO, GTB Hospital claims to have attended
to the deceased at the Casualty of GTB Hospital. He has
proved the MLC of the deceased prepared by him as Ex.PW9/A.
As per the MLC, the deceased was brought to the hospital by
her husband Shiv Kumar Goswami on 18th April, 93 at about
11:15 am and it is recorded in the MLC that the deceased was
brought with the history of "burn by falling kerosene from
stove". Dr. T.Gupta, in his cross-examination, admitted that
the history recorded in the MLC Ex.PW9/A was given by the
patient herself.
11. PW-17 ASI Bachan Singh is the Investigating Officer. He has
deposed that on the receipt of DD No. 4A, he went to the spot
where he found that the deceased had been taken to the GTB
Hospital. Thus, he went to the GTB Hospital and collected the
MLC of the deceased who was declared fit for statement and
recorded her statement Ex.PW17/A, wherein the deceased had
given the cause of her burns as accidental fire. He also stated
that from the hospital, he came back to the spot where he
found one oil stove, half burnt oil woollen blanket, some burnt
pieces of saree, a slightly burnt plastic can containing some
kerosene oil and a half burnt matchbox and some burnt
matchsticks which he seized vide separate memos Ex.PW12/A
to Ex.PW12/E. He also deposed that he informed his senior
officers and SDM about the incident. The SDM concerned
visited the hospital at 5:00 pm but the patient was declared
unfit for making the statement at that time. On 19th April 1993
at around 12:00 noon, patient was fit for statement so the SDM
was called. In place of area SDM, Shri B.P.Singh, Executive
Magistrate reached hospital at around 12.00 noon and he
recorded the statement Ex.PW6/A. He appended his
endorsement Ex.PW5/A on the said statement and sent it to
the police station for the registration of the case. He also
deposed about sequence of the investigation conducted by
him.
12. Since Shiv Kumar and Raj Kumar have been acquitted on both
the counts, there is no need to discuss their defence. The
appellant Jai Devi when examined under Section 313 Cr.P.C.
denied the prosecution evidence. She claimed that she has
been falsely implicated by the police and the deceased actually
died because of accident as she caught fire while working on
the oil stove. No witness in defence was examined by her.
13. On appreciation of evidence, the learned trial Judge acquitted
accused Shiv Kumar and Raj Kumar on both the counts. He,
however, convicted the appellant Jai Devi for the offence of
murder under Section 302 IPC but she was acquitted of charge
under Section 498-A IPC for lack of evidence.
14. Learned counsel for the appellant has challenged the
impugned judgment on several counts. His first criticism to the
impugned judgment is that the learned Trial Court has erred in
relying upon the dying declaration Ex.PW6/A purported to have
been recorded by the Executive Magistrate Shri B.P.
Singh(PW6) in the afternoon of 19th April 93 ignoring the fact
that prior to the said dying declaration the deceased had also
made two dying declarations, one in presence of Dr. T. Gupta
(PW9) in the form of history of the cause of burns suffered by
her on the MLC Ex.PW9/A and the other made in presence of
the Investigating Officer in the form of her complaint statement
Ex.PW17/A wherein she claimed to have sustained the burn
injuries because of accidental fire while heating water on the
stove. Learned counsel submitted that in absence of any other
evidence on record, with there being two dying declarations,
one implicating the appellant and other exonerating him, the
learned Trial Court ought to have extended the benefit of
doubt to the appellant. In support of this contention, learned
counsel for the appellant has relied upon the judgment in the
matter of Chinnamma Vs. State of Kerala, 2004(1) JCC 527.
15. The second submission of learned counsel for the appellant is
that the learned Trial Court has erred in treating the dying
declaration purportedly made in the presence of Shri B.P. Singh
(PW6) as proved on record. In support of this contention, he
has pointed out that Ex.PW6/A is not the original statement
and there is no explanation forthcoming as to where the
original dying declaration has gone.
16. Learned counsel also challenged the veracity and credibility of
the dying declaration Ex.PW6/A on the ground that admittedly
the deceased had sustained 100% superficial to deep burns in
the morning of 18th April 93 and the statement Ex.PW6/A was
purportedly recorded by the SDM on 19th April 93 in the
afternoon at around 12:00. During said period, the deceased
must have been given some treatment including the antibiotics
and pain relieving injections. He submitted that from the MLC
Ex.PW9/A, it is apparent that the deceased was advised
injection Pathadine 100ml and injection Phenargan 50mg,
which injections do have sedative effect and sometimes, as an
after effect of such injections, the patient becomes dazed and
sleepy and goes into stupor. Therefore, before acting upon the
dying declaration Ex.PW6/A, it was obligatory for the learned
trial Judge to have satisfied himself whether the patient was fit
for making statement at the time when Shri B.P. Singh, PW6
recorded her statement. Learned counsel drew our attention
to the dying declaration Ex.PW6/A and submitted that from this
dying declaration, it is not clear if the Executive Magistrate
before recording the statement of the patient sought a
clearance from the treating doctor that the deceased was fit
for making statement. He also submitted that the dying
declaration Ex.PW6/A is not even attested by the attending
doctor or the attending nurse, which makes the dying
declaration suspect, particularly when this purported dying
declaration Ex.PW6/A is inconsistent, rather contradictory to
the earlier dying declarations made by the deceased. Thus, he
has urged us to hold that the dying declaration Ex.PW6/A is not
reliable and accept the appeal.
17. Learned counsel for the State, on the other hand, has
canvassed in favour of the impugned judgment. He has
submitted that the purported dying declaration Ex.PW17/A of
the deceased is a fabricated document, which is apparent from
the evidence on record. In support of this contention, he has
submitted that perusal of the testimony of PW17 ASI Bachan
Singh as also the testimony of PW6 Shri B.P. Singh, Executive
Magistrate makes it clear that when the Executive Magistrate
reached at the hospital to record the statement of the
deceased, PW17 ASI Bachan Singh was present but he did not
tell the Executive Magistrate about purported dying declaration
Ex.PW17/A of the patient recorded by him. This conduct of
PW17 ASI Bachan Singh is highly unnatural because, under the
natural course of circumstances, he being the Investigating
Officer of the case, was expected to apprise the Executive
Magistrate about the earlier statement made by the deceased
in his presence. Secondly, he has submitted that if the dying
declaration Ex.PW17/A or the history recorded on the MLC
Ex.PW9/A is to be believed, then the deceased had suffered
burn injuries due to accidental fire because of spilling of
kerosene oil from the stove while heating water on the stove.
In that eventuality, it is highly improbable, rather impossible,
that the kerosene oil could have reached the hair of the
deceased. Learned counsel has pointed out that as per the
testimony of PW12 Constable Prem Chand and PW17 ASI
Bachan Singh, the Autopsy Surgeon handed over a wooden
box sealed with the seal of CMO containing viscera of the
deceased along with a parcel containing hair of the deceased,
which were sent for analysis to CFSL and as per the report of
CFSL Ex.PX, the sample hair of the deceased on analysis
showed the presence of kerosene, which rules out any
possibility of the deceased having sustained burn injuries
accidently as stated in Ex.PW17/A and the MLC. Thus, he has
submitted that dying declaration Ex.PW17/A is a fabricated
document and is not the true declaration of the deceased.
18. As regards the reliability of the dying declaration Ex.PW6/A,
learned counsel for the State submitted, that it was recorded
by Shri B.P. Singh PW6, the then Executive Magistrate, who is
an independent witness having no reason or motive to falsely
implicate the appellant. He has submitted that it is not always,
that the patient suffering from 100% superficial to deep burns
of the body surface area cannot speak or make a coherent
declaration about the reason for the injuries sustained by
them. He also submitted that perusal of the MLC Ex.PW9/A
would show that in the MLC, there is an endorsement by Dr.
Gyanesh Gupta declaring the patient `fit for statement‟ on 19th
April 93 at 12:00 noon, which is a clear indication that on the
relevant day, the patient was fit for making statement at least
at 12:00 noon when, as per the version of PW6 Shri B.P. Singh,
he reached the hospital. He has pointed out that even in the
dying declaration Ex.PW6/A the Executive Magistrate is
categoric that on the report of doctor that "the patient is fit for
statement" he recorded the statement in question-answer
form. Thus, learned counsel for the State has submitted that
there is no reason to suspect the credibility of the dying
declaration relied upon by the learned trial Judge. As regards
the argument that the original dying declaration has not been
placed on record, learned counsel for the State submitted that
it could not be placed on record as the same was not traceable.
However, he pointed out that Ex.PW6/A is a carbon copy of the
dying declaration, which has been prepared in the same
process and it even bears the thumb impression of the
deceased at point „A‟. Therefore, it is as good as the original
dying declaration, which fact also gets confirmed from the
endorsement Ex.PW5/A recorded by the Investigating Officer at
the back of this dying declaration before sending it to the
police station for the registration of the case. Learned counsel
for the State has thus summed up his contention that the
learned trial Judge has rightly convicted the appellant on the
strength of the dying declarations Ex.PW6/A of the deceased,
which cannot be suspected.
19. We have considered the rival contentions and perused the
material on record. As per the learned counsel for the State,
there are only two dying declarations on the record namely
Ex.PW17/A, purported to have been made in presence of the
Investigating Officer and Ex.PW6/A, purported to have been
made in presence of the Executive Magistrate Sh. B.P.Singh,
whereas learned counsel for the appellant has submitted that
there is a third dying declaration also which was made in
presence of PW9 Dr. T.Gupta in the form of history given by the
patient at the time of preparation of the MLC. Perusal of the
MLC Ex.PW9/A reveals that as per the MLC, the patient was
brought to GTB Hospital on 18th April 93 at around 11:50 am
by her husband Shiv Kumar Goswami. Although the MLC
records "H/o of burns by falling kerosene from stove", there is
no mention in the MLC as to who gave the above history to Dr.
T.Gupta. Learned counsel for the appellant has drawn our
attention to the cross-examination of Dr. T.Gupta wherein he
stated "It is correct that the patient gave the history of burn by
falling kerosene from stove". In view of the said admission by
PW9, learned counsel for the appellant has urged us to
conclude that the said history was given by the deceased
herself and therefore, it falls within the definition of a dying
declaration given by the deceased.
20. We are not convinced with the contention of learned counsel
for the appellant. The MLC of the deceased was prepared on
18th April 93 and Dr. T. Gupta was examined about 2½ years
later on 12th October 95. The record of the MLC does not
indicate as to who gave the history at the time of admission of
the deceased in GTB Hospital. It is highly improbable, rather
impossible that Dr. T. Gupta, who must have attended to
hundreds of patients in the casualty of GTB Hospital during the
intervening period of 2½ years, could have remembered that in
the instant case who gave the history of the injuries sustained
by the deceased. Thus, his aforesaid version is totally
unreliable and the history detailed in Ex.PW9/A cannot be
treated as dying declaration given by the deceased.
21. Now, we are left with two dying declarations of the deceased
namely Ex.PW17/A made in presence of the Investigating
Officer and Ex.PW6/A made in presence of the Executive
Magistrate. These dying declarations are contradictory to each
other. As per dying declaration Ex.PW17/A, which is prior in
time, the deceased had stated that she had suffered
accidental burns because of spilling of oil while heating water
on the stove whereas as per the dying declaration Ex.PW6/A,
the deceased had squarely blamed the appellant for setting
her on fire after pouring kerosene on her. Learned counsel for
the appellant has submitted that since there are two
inconsistent dying declarations and the first one i.e. Ex.PW17/A
speaks of accidental burns, the Trial Court ought not to have
relied upon dying declaration Ex.PW6/A and the benefit of
doubt ought to have been extended to the appellant. On the
other hand, learned counsel for the State has submitted that
dying declaration Ex.PW17/A is not the correct version of the
deceased and it appears to have been fabricated by the
Investigating Officer in connivance with the accused person.
Expanding on the argument, learned counsel for the State
contended that in this case, hair sample of the deceased were
preserved and sent for analysis to CFSL and on physico-
chemical examination, traces of kerosene oil were found in the
hair, which could not have been possible if the deceased had
accidentally suffered fire burns while heating water on the
stove, as narrated in the statement Ex.PW17/A. Thus, he has
urged us to reject the purported dying declaration Ex.PW17/A.
22. In order to appreciate the above contention of the parties, it is
necessary to have a look at the dying declaration Ex.PW17/A.
The relevant part of the dying declaration records "aaj mein
stove par chadar dhone ke liye pani garam kar rahi thi, stove
par tael dal rahi thi ki tael stove se bahar gir gaya, jisse aag lag
gayi thi, jab mein chillayee toh padosiyon ne aa kar mujhe
kambal dal kar aag bhujayee hai, isme kisi ka koi dosh nahi
hai". If the aforesaid version in the dying declaration is to be
believed, then the deceased had died accidental death due to
fire burns as a result of spilling of the oil while filling the oil
tank of the stove. In that eventuality, there could have been
no possibility of the kerosene oil being found on the hair of the
deceased whereas as per the CFSL report, the hair sample of
the deceased, on analysis, gave positive test for presence of
kerosene residue. Thus, the cause of the fire burns resulting in
death as narrated in the purported dying declaration
Ex.PW17/A is an impossibility. Further, perusal of the record
reveals that the FIR in this case was recorded on the basis of
the dying declaration of the deceased Ex.PW6/A, which was
sent to the police station alongwith the endorsement of the
Investigating Officer ASI Bachan Singh Ex.PW5/A. A perusal of
Ex.PW5/A reveals that in this endorsement, the Investigating
Officer, while detailing brief facts has not made any mention of
the dying declaration Ex.PW17/A made in his presence by the
deceased. This circumstance also leads to an inference that
when Ex.PW6/A was recorded, by that time Ex.PW17/A was not
in existence and there is a possibility of fabrication of aforesaid
dying declaration. Further, PW6 B.P.Singh, the then Executive
Magistrate, who recorded dying declaration Ex.PW6/A when
asked in his cross-examination stated that he does not know
whether any other statement of the deceased was recorded
prior to recording of dying declaration of Ms. Archana by him.
He also admitted in the cross-examination that Investigating
Officer ASI Bachan Singh remained present with him during the
period in which he remained in the hospital. In latter part of
the cross-examination, the witness further stated that the
Investigating Officer did not tell him regarding any earlier
statement given by the deceased to him. From this version of
the Executive Magistrate, it is apparent that no dying
declaration was made by the deceased in presence of ASI
Bachan Singh. Had she made the statement Ex.PW17/A in
presence of ASI Bachan Singh, under the natural course of
circumstances, he definitely would have informed the
Executive Magistrate that the deceased in her earlier
statement had claimed that she suffered accidental fire burns.
One could argue that perhaps the subsequent statement
Ex.PW6/A was the result of pressure or tutoring by someone
but this is not a possibility because PW1 Om Prakash, father of
the deceased and PW2 Sanjay Kumar, brother of the deceased
have not supported the prosecution case, which imply that
they were not nursing any grudge against the appellant, as
such, any possibility of the family members of the deceased
having tutored her is ruled out. There is nothing on the record
to suggest a possibility of anyone else having tutored or
pressurised the deceased to implicate the appellant and her
two sons. Thus, we are of the view that dying declaration Ex.
PW17/A has been rightly rejected by the learned Trial Judge as
a possible handiwork of the Investigating Officer in collusion
with the accused persons.
23. The next criticism to the impugned judgment is that the trial
court has erred in treating the dying declaration Ex.PW6/A as
proved on record, ignoring the fact that the original dying
declaration which was admittedly recorded in the hand writing
of the Executive Magistrate has not been placed on record. It is
true that the original dying declaration which was recorded by
the Executive Magistrate has not been placed on record.
Ex.PW6/A is a carbon copy of the dying declaration which
obviously has been prepared contemporaneously in the same
process. On perusal of Ex.PW6/A, it transpires that it bears the
original thumb impression of the deceased and once this
document has been thumb marked by the deceased. Thus, in
our considered view, it is as good as the original document and
it cannot be termed as secondary evidence. Further, on
perusal of the reverse side of Ex.PW6/A, it transpires that on
this there is a hand written endorsement Ex.PW5/A of ASI
Bachan Singh, which as per the version of PW17 ASI Bachan
Singh was appended by him on the dying declaration Ex.PW6/A
before sending it to the police station for the registration of the
case under Section 498A/307/34 IPC. This circumstance clearly
shows that Ex.PW6/A is the actual statement made by the
deceased in the presence of Executive Magistrate which was
sent to the police station for the registration of the case. Thus,
we have no reason to disbelieve the explanation given by ASI
Bachan Singh in his cross-examination that he had given the
hand written dying declaration to the Executive Magistrate. If
that document has somehow got misplaced, it cannot be taken
as a circumstance to discard the dying declaration Ex.PW6/A
which has been properly proved by PW6 Shri B.P.Singh,
Executive Magistrate, in his testimony in the Court.
24. The next submission on behalf of the appellant is that a careful
look on the dying declaration Ex.PW6/A would show that the
ridges of the purported thumb impression of the deceased at
point `A‟ on the dying declaration Ex.PW6/A are clearly visible
which is an impossibility in view of the medical evidence.
Learned counsel contended that as per MLC Ex.PW9/A and post
mortem report Ex.PW8/A and also the testimony of the Autopsy
Surgeon, the deceased had suffered superficial to deep burns
all over her body covering 100% of the body surface area. If
that is to be believed, then obviously the skin of the right
thumb of the deceased must have been totally burnt and in
that eventuality, it is highly improbable that the ridges of the
thumb impression of the deceased could have been visible.
25. We are not convinced with the above argument. The
observation of the doctor that the deceased had suffered
superficial to deep burns present all over the body covering
100% of the body surface area does not mean that the entire
body of the deceased was burnt due to fire. We may also note
that the dying declaration Ex.PW17/A relied upon by the
appellant also has thumb impression of the deceased with
visible ridges. This clearly indicates that the skin on the inner
side of the thumb of the deceased was not burnt or peeled off.
26. Learned counsel for the appellant has further submitted that
though there is no bar upon the Court to base conviction on the
strength of dying declaration without corroboration but the rule
of prudence demands that before acting on a dying
declaration, the Court must satisfy itself that the dying
declaration is true and voluntary and is not the result of
tutoring, prompting or imagination of the deceased. In the
light of aforesaid legal proposition, learned counsel for the
appellant has submitted that the trial court has erred in relying
upon the dying declaration Ex.PW6/A, ignoring the fact that the
deceased had suffered 100% superficial to deep burns all over
the body surface area and therefore she could not possibly
have been in a position to make a clear and coherent dying
declaration. He further pointed out that from the MLC
Ex.PW9/A, it is apparent that the deceased was advised
injection Pathedine 100 mg and injection Phenargon 50 mg as
a line of treatment. Learned Senior counsel submitted that
Pathedine and Phenargon are sedative and these medicines do
have an impact on the mental capacity of the patient and have
the potential to make them sleepy and in some cases, the
patient, on intake of such injections can go into stupor.
Learned counsel further submitted that admittedly the
purported statement Ex.PW6/A of the deceased was recorded
by the SDM in the afternoon of 19th April 93 and by then she
must have been administered sedatives, therefore, a possibility
cannot be ruled out that she was not in a fit state of mind to
give a coherent dying declaration to the SDM. He also added
that the aforesaid doubt is further compounded by the fact that
the Executive Magistrate Shri B.P.Singh admittedly did not
obtain a certification from the doctor that the patient was fit for
making statement before proceeding to record her statement.
27. We do not find any substance in this contention. PW6 Shri
B.P.Singh, Executive Magistrate has categorically stated in his
examination-in-Chief that he reached GTB hospital on 19th April
93 at around 12:00 noon and found that the concerned doctor
had certified the patient to be "fit for statement". His
aforesaid version finds corroboration from the endorsement
Ex.PX of doctor Gyanesh Gupta on the MLC Ex.PW9/A wherein
he has certified the patient to be "fit for statement" and this
certification is timed at 12 noon. Even in the cross-
examination, in response to a specific query by learned
counsel for the accused, Shri B.P.Singh stated that "I had
simply enquired from the doctor as to whether she was in
position to give a statement but I have not asked from the
doctor as to whether Pathadine injection was given to Archana
and if so, when?" From this reply also, it is clear that the
Executive Magistrate, before recording the dying declaration of
the deceased, had consulted the doctor and after getting
confirmation about her fitness to make a statement, he
proceeded to record the dying declaration Ex.PW6/A which is in
question-answer form.
28. On careful scrutiny of the questions put by the SDM and the
answers given by the deceased in the dying declaration, one
can easily make out that the deceased was in a fit state of
mind to understand the nature of questions and give clear and
coherent replies to the questions. Shri B.P.Singh PW6 is a
public servant who had no axe to grind with the accused
persons or the family of the deceased. Thus, we find no reason
to suspect his testimony or to doubt the correctness of the
dying declaration Ex.PW6/A recorded by him.
29. Lastly, it is argued on behalf of the appellant that the appellant
along with her two co-accused persons Shiv Kumar and Raj
Kumar was put to trial for the charges under Section 498A IPC
read with 34 IPC and Section 302 IPC read with Section 34 IPC.
The learned trial Judge, on conclusion of trial, which was based
upon the dying declaration, has found the appellant guilty of
charge under Section 302 IPC whereas he has acquitted her co-
accused persons of the same charge. This means that the
learned trial Judge has found the dying declaration of the
deceased Ex.PW6/A unreliable so far as accused Shiv Kumar
and Raj Kumar are concerned and found it reliable as against
the appellant. Learned counsel submitted that the aforesaid
approach adopted by the learned trial Judge is against the
canons of criminal jurisprudence. Thus, he has strongly urged
that since the co-accused persons of the appellant have been
acquitted, on the principle of parity the appellant may also be
extended the same benefit.
30. The above argument of learned Senior Counsel is
misconceived. Section 32 of the Indian Evidence Act deals with
the cases in which statement of relevant fact by a person who
is dead or cannot be found, etc. is relevant. Section 32(1) of
the Act deals with dying declarations, which is reproduced
thus:
"32. Case in which statement of relevant fact by person who is
dead or cannot be found, etc. is relevant - Statements, written or
verbal, of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the following cases -
(1) When it relates to cause of death - When the statement is made by
a person as to the cause of his death, or 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 his death comes into question."
31. A bare reading of aforesaid provision would show that when a
person is dead only that part of his statement which relates to
the cause of his death or as to any of the circumstances or
transactions which resulted in his death is relevant in cases in
which the cause of death of said person comes into question.
32. On perusal of the dying declaration Ex.PW6/A, it transpires that
the deceased had stated about the cause and manner in which
she sustained the fatal burn injuries in response to Question
No.5 put to her by the Executive Magistrate. In question No.5,
the Executive Magistrate asked the deceased "how did you
suffer the fire burns? Whether someone set you on fire or you
have burnt yourself?" In response to that question, the
deceased stated "in the morning of 18.4.93, my mother-in-law
Jai Devi quarrelled with me and gave me beating and she
poured kerosene oil on me and set me on fire as a result of
which I had suffered the burns." She went on to say that her
younger brother-in-law wanted to sexually exploit her and that
her husband Shiv Kumar, her brother-in-law Raj Kumar and her
mother-in-law Jai Devi used to harass and taunt her for
bringing insufficient dowry. The learned trial Judge, on analysis
of the statement, has taken only that part of the statement of
the deceased which referred to the immediate circumstances
which had led to her suffering the fatal burn injuries, as dying
declaration and since the deceased had implicated only the
appellant for throwing kerosene oil on her and setting her on
fire, the learned Trial Judge acquitted the other two accused
persons of the charge under Section 302 IPC on the premise
that the subsequent part of the statement wherein she made
reference to Shiv Kumar and Raj Kumar did not fall within the
definition of dying declaration. Thus, in our view, the case of
the appellant vis-a-vis the other two accused persons is on
entirely different footing.
33. In view of our discussion above, we are of the view that the
learned trial Judge has rightly relied upon the dying declaration
Ex.PW6/A to convict the appellant for the offence punishable
under Section 302 IPC for committing murder of the deceased
Archana.
34. The appeal is accordingly dismissed.
35. The appellant is on bail. She be taken into custody to undergo
the remaining period of her sentence.
AJIT BHARIHOKE, J.
MARCH 26, 2010 A.K. SIKRI, J.
Ks
