Shakuntla vs State
2012 Latest Caselaw 4123 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 08.05.2012
                                   PRONOUNCED ON: 13.07.2012
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                           CRL.A.214/1998
                          CRL.M.A. 2906/1998

        SHAKUNTLA                                    ..... Appellant
                          Through: Mr. S.P. Ahluwalia, Advocate.

                                   versus

        STATE                                    ..... Respondent

Through: Ms. Richa Kapoor, APP along with

CORAM:

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG

MR. JUSTICE S.RAVINDRA BHAT

%

1. The appellant is aggrieved by a judgment and order of the learned Additional Sessions Judge, Delhi, dated 6th May, 1998 in SC No.25/1997whereby she was convicted for the offence punishable under Section 302 IPC and directed to undergo imprisonment for life, and pay fine.

2. The brief facts of the case are that Dalbir Singh (son of accused Shakuntla) married Yashoda (the deceased) in 1981. However he was not treating her well. It is the case of the prosecution that Dalbir Singh and the accused used to harass the deceased and give her beatings and used to taunt her that she had not got any dowry. They even used to threaten her by saying that they would kill her. Dalbir Singh and the accused used to mistreat her and would also taunt her about not being able to conceive;

Crl.A. No.214/1998 Page 1 they used to tell the deceased that they would kill her and throw her body away and her (deceased's) father would not be able to do anything about it. It was further the case of the prosecution that on 22.07.1992 at about 01:10 PM a wireless message was received at the police control room stating that a woman had burnt due to bursting of a gas cylinder at Gali No. 21, Sad Nagar Colony, Palam; DD No. 23 (Ex.PW-15/A) was recorded. The deceased was taken to Safdarjung Hospital and DD No. 26 (Ex.PW-8/A) was recorded stating that the lady with 100% burns was admitted to Safdarjung Hospital. Information was received from the hospital that the woman who had been admitted with burns had passed away; DD No.35 (Ex.PW-10/A) was recorded. The rukka was prepared by SI Mehar Singh (PW-19) and FIR was got registered. It was further the case of the prosecution that from the spot one oil container, match- box (containing 5 unburnt matchsticks), burnt match-sticks and burnt pieces of clothes were seized by seizure memo Ex.PW-16/A. After the completion of investigation charge under section 506 IPC was framed against Dalbir Singh and a charge under section 302 IPC was framed against the accused Shakuntla. The accused pleaded not guilty and claimed trial. Accused Dalbir Singh was acquitted. However accused Shakuntla was convicted under Section 302 IPC and was sentenced to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 2000/-.

3. The prosecution to prove its case examined 20 witnesses and relied on various documents such as the MLC, post-mortem report etc.

4. The prosecution examined PW-1 Raghunath Sharma (father of the deceased), PW-2 Smt. Subhadra (mother of the deceased), PW-4 Belam Singh (uncle of the deceased) and PW-5 Jatti Singh (brother-in-law of the deceased) to establish that the accused used to harass and torture the deceased due to inadequacy of dowry. All the 4 witnesses deposed that the accused along with her son (husband of the deceased) used to harass

Crl.A. No.214/1998 Page 2 the deceased and used to taunt her. The accused and her son used to give the deceased beatings and torture her; they even threatened to kill her. PW-4 stated that the deceased was harassed by not being fed. PW-1 and PW-2 deposed that the deceased used to write letters to them about the appellant's behavior (however they were not able to produce any of those letters). The witnesses further deposed that the deceased was being harassed due to inadequacy of dowry.

5. The Appellant's Counsel submitted that the prosecution failed to prove its case beyond reasonable doubt and that the Trial Court erred in convicting the accused. The Counsel submitted that the allegation of harassment and cruelty by accused was not proved. The depositions of PW-1, 2, 4 and 5 regarding beatings and threats to the deceased were very vague and therefore they could not have been believed. Nowhere in any of the depositions was any specific date or time about the alleged threats been given; no specific instance of beating has also been mentioned. Furthermore none of the relatives of the deceased (who have appeared as public witnesses) had lodged any complaint with the police regarding the beatings and threats. Therefore, submitted the Counsel that the testimonies of PW-1, 2, 4 and 5 are unreliable and cannot be believed.

6. Counsel for the appellant urged that the alleged dying declaration made by the deceased holding the accused responsible for her burn injuries cannot be relied upon. The MLC (Ex.PW-20/A) which records the dying declaration of the deceased does not have any endorsement on it which declares the deceased fit for making a statement. Furthermore it is highly possible that the deceased had been given a sedative before she made the dying declaration; PW-20 was not able to remember when the sedative was administered to the deceased. In view of these circumstances the dying declaration cannot be made the sole basis on which the accused was convicted.

Crl.A. No.214/1998 Page 3

7. It was further argued that the alleged dying declaration of the deceased cannot be believed. According to the dying declaration the accused threw kerosene oil on the deceased while she was making tea however no articles required for preparing tea were found in the kitchen; PW-16 deposed to this effect in his cross-examination.

8. Learned counsel urged that not only would a dying declaration has to satisfy the test of credibility on the anvil of proof beyond reasonable doubt, but would have to be supported by other corroborative materials. In the present case, there was absolutely no such corroborative material. The Trial Court therefore, erred in convicting the appellant.

9. The prosecution had also relied on the testimony of PW-6 Dr. Chander Kant. He had conducted the post-mortem examination. In his examination-in-chief before the court he stated that there was no possibility of suicidal ante-mortem burns. He further stated that there is a possibility of either accidental or homicidal ante-mortem burns, more possibility of accidental ante-mortem burns. PW-6 further in response to a question put by the court responded by saying that the history does not correspond with the post-mortem findings. Therefore submitted the counsel for the accused that there was not enough evidence to prove accused's involvement in the deceased's death.

10. The Ld. APP submitted that the statement of PW-1 Raghunath Sharma (father of the deceased), PW-2 Smt. Subhadra (mother of the deceased), PW-4 Belam Singh (uncle of the deceased) and PW-5 Jatti Singh (brother-in-law of the deceased) proved that the accused along with her son used to torture and harass the deceased due to inadequacy of dowry. The Ld. APP submitted that all the above mentioned witnesses stated before the court that the accused and her son used to threaten the deceased and tell her that they would kill her.

Crl.A. No.214/1998 Page 4

11. The Ld. APP further submitted that the testimony of PW-20 (Dr. Anant Sinha) and the MLC of the deceased Ex.PW-20/A, both, established that the deceased made a dying declaration and that she was burnt by her mother-in-law (accused). The MLC Ex.PW-20/A records the alleged history as, "sustaining burns when while she was trying to make tea in the kitchen her mother-in-law threw kerosene over her and threw a lighted matchstick.."

12. PW-20 in his deposition before the court stated that on 22.07.1992 he examined one Yashoda (deceased) who had been admitted with burn injuries. He further stated that the patient gave the history that she sustained those burns when she was trying to make tea in the kitchen as her mother-in-law threw kerosene on her and threw a lighted matchstick. He deposed that the patient was conscious but the general condition was critical. He further deposed that the smell of kerosene was present. Therefore, argued the Learned APP, the dying declaration, accusing Shakuntla of throwing kerosene, made by the deceased at the time of recording of the MLC stands proved.

13. The Ld. APP urged that seizure memo Ex.PW-16/A by which kerosene oil container, matchbox, burnt matchstick and burnt pieces were taken into possession from the spot proves and corroborates with the dying declaration of the deceased; PW-16 has proved the seizure memo in his examination-in-chief.

14. It can be seen from the above discussion that the appellant's conviction was based primarily on the testimony of the deceased's relatives, as well as the dying declaration said to have been made by the deceased. As far as the testimony of the relatives goes, the argument of the appellant appears to be well founded. The allegations of previous harassment and beatings are unspecific as regards even approximate

Crl.A. No.214/1998 Page 5 dates, etc. These generic allegations ipso facto in the opinion of the Court cannot be considered incriminating so as to implicate the appellant. The testimonies of the deceased's parents, PW-1 and PW-2 are concerned, it is evident that the marriage of the deceased took place sometime in 1985 or 1986, i.e. about 7 years before her death. Their testimonies also make it clear that the deceased used to live with the appellant. Although these witnesses, and other relatives mention about threats by the deceased's relatives to kill her, no precise dates or even approximate period when the threats were held out were deposed to. The witnesses mentioned about the deceased having written some letters in which she had expressed her apprehensions about being killed; yet the prosecution did not seize them and bring them on the record. Consequently, the testimonies of the deceased's relatives on the acts of cruelty and misbehavior are vague, and cannot be depended upon to say that they are incriminatory.

15. So far as the dying declaration is concerned, it is now established that the law does not mandate any special format or stipulate specific conditions for its acceptance. Yet, since the maker of the declaration cannot be tested as to the veracity of what he says, the courts have to be doubly cautious while accepting them, particularly in basing their conclusions solely on them, to record convictions. A five judge Bench of the Supreme Court, in Laxman v State of Maharastra 2002 (6) SCC 710 observed as follows:

"The juristic 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

Crl.A. No.214/1998 Page 6 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 prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration 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."

16. PW-20, the doctor who claims to have recorded the statement of the deceased, when she was taken for treatment, on the MLC Ex. PW-

Crl.A. No.214/1998 Page 7 20/A supported the prosecution in this regard. Yet, there is absolute absence of any evidence whether anyone was present when this statement was taken down. The deceased had 100% burns, and appears to have survived only for 3 hours after being taken to hospital. The other crucial thing in the entire case is that the other doctor, PW-6 deposed that the burn injuries on the deceased were caused due to accidental fire. The said witness conducted post mortem proceedings on the body of the deceased. This deposition, to a large extent, casts a doubt on the credibility and truthfulness of the entire prosecution story.

17. The victims' relatives depositions regarding the previous threats and harassment meted out to the deceased, by the accused cannot, as was discussed previously in this judgment, be accepted. That leaves the dying declaration as the sole basis for the appellant's conviction. In several judgments, including Laxman, it has been repeatedly emphasized that wherever the dying declaration is the main basis of conviction, courts have to try and find corroboration, about its accuracy and credibility of the witnesses had to be gone into. In this case, the only witness who speaks about a homicidal incident, leading to the death of the deceased, is PW-20 who supports the dying declaration. However, the facts of this case show that there is some doubt as to the precise cause of such injuries. PW-6, contrary to PW-20, deposed to the fact that death was probably due to an accident. Now this aspect has not been explained at all by the prosecution, much less explained properly. Since the deceased could not make a statement, the court is left guessing whether to rely exclusively on PW-20's statement. Having regard to this aspect, and the further circumstance that none of the police witnesses is clear as to when the dying declaration was recorded or informed, or even when PW-20's statement under Section 161 Cr.PC recorded, the entire matter becomes uncertain. Under these circumstances, it would be hazardous for the court

Crl.A. No.214/1998 Page 8 to exclusively rely on the testimony of PW-20 about the dying declaration. Therefore, the accused/Appellant would be entitled to the benefit of doubt.

18. For the foregoing reasons, the appeal is entitled to succeed; the bail and surety bonds furnished to the court are hereby discharged. The appeal is allowed and the impugned judgment and order of the Trial Court, are set aside.

                                          S. RAVINDRA BHAT, J



                                                       S.P.GARG, J
JULY 13, 2012




Crl.A. No.214/1998                                                   Page 9