Raj Kumar vs State (Nct Of Delhi)
2014 Latest Caselaw 4845 Del

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.

Crl A: 664/ 1999 Page 27

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."

Crl A: 664/ 1999 Page 30

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.

Crl A: 664/ 1999 Page 38

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




Crl A: 664/ 1999                                                     Page 39