Delhi High Court
State (Govt Of Nct Of Delhi) vs Suresh Singh Chauhan And Ors. on 29 April, 2016
$~1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 28th April, 2016
Judgment delivered on: 29th April, 2016
+ CRL.A. 130/2016
STATE (GOVT OF NCT OF DELHI) ..... Appellant
Through : Ms. Aashaa Tiwari, APP for State.
Mr. Rajiv Mohan, Advocate for the
complainant in Crl. A. No. 328/2015.
Versus
SURESH SINGH CHAUHAN & ORS. ..... Respondents
Through: Mr. Arvind Singh and Mr. Jitendra Mishra,
Advocates.
+ CRL.A. 131/2016
STATE (GOVT OF NCT OF DELHI) ..... Appellant
Through: Ms. Aashaa Tiwari, APP for State.
Mr. Rajiv Mohan, Advocate for the
complainant in Crl. A. No. 328/2015.
Versus
HARI SINGH CHAUHAN ..... Respondent
Through: Mr. Arvind Singh and Mr. Jitendra Mishra,
Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. Both these appeals arising out of a common judgment and order dated
07.11.2014 were taken up and heard together and shall stand disposed
of by this common judgment. Criminal Appeal No. 130/2016 has been
filed by the State against the impugned judgment by which the
mother-in-law and husband of the deceased have been acquitted of the
charges under Sections 302/34 of the Indian Penal Code and Criminal
Appeal No. 131/2016 has been filed by the State against the impugned
judgment by which the father-in-law of the deceased has been
acquitted of the charges under Section 498A of the Indian Penal Code.
2. Mother of the deceased had also preferred a Criminal Appeal No.
328/2015 which was disposed of by this Court on 03.02.2016 with the
liberty to urge all grounds in the present State Appeals.
3. The present appeals have been filed by the State under Section 378 (3)
of the Code of Criminal Procedure against the judgment dated
07.11.2014 passed by the Additional Sessions Judge, Delhi in Sessions
Case No. 49/2011 by which the respondents have been acquitted of all
the charges against them.
4. The brief facts of the case are as under:
"1...At about 12:45 am (night) in the intervening night of
29th/30th August, 2011, an information was received at
Police Station Sangam Vihar vide DD no. 66-A to the
effect that "Bhawna w/o Suresh Singh aged 25 years, r/o
D-485/5, Sangam Vihar is admitted by Hari Singh
(father-in-law) in 30 % burnt condition at safdarjung
hospital". ASI Rajender Singh alongwith Ct. Virpal
reached at Safdarjung hospital and collected MLC no.
79884 of injured Bhawna having alleged history of
"thermal burn when her clothes caught fire while
cooking on kerosene stove". Nature of injury was opined
by the attending doctor as "dangerous caused by fire".
IO/ASI Rajender Singh intimated Kuldeep Singh (PW-1)
SDM, Kalkaji regarding admission of Bhawna in a burnt
condition at Safdarjung hospital, who reached at the
hospital on 30th August, 2011 and recorded her
statement, wherein she stated that she got married with
Suresh on 06th May, 2006 at Faridabad. After six months
of her marriage, she came to know that her husband was
addicted to liquor and her husband had never gone for
work and used to quarrel with her after drinking liquor.
He was of suspicious nature and always doubted her
character. He also used to suspect her relations with his
brother-in-law (jija). She stated that there used to be
quarrel between them on petty issues but was never
subjected to cruelty relating to dowry. Due to his
drinking habits, unemployment and suspicious nature of
her husband, she requested him to allow her to do some
stitching or beauty parlour course, as she did study upto
8th class and was a housewife but he did not allow her to
learn anything and to go outside the house. She stated
that on previous night, at 08:00/09:00pm, her husband
was heavily drunk and "his mother used to harass her on
the ground that her husband (Suresh) used to sit idle and
never used to work". On hearing this, her husband
became annoyed with her and uttered that "kya main tere
baap ki khata hoon". Her mother-in-law came
downstairs from first floor and her husband strangulated
her neck and gave kick blow on her stomach, due to
which she fell down. Her mother-in-law came with a
bottle of kerosene oil and poured kerosene oil from
backside. Bhawna further alleged that her husband threw
a burning match stick on her and went outside from the
house . Subsequently, when her kurti and salwar received
fire through chunni, then her mother-in-law poured
water to extinguish fire and it was told to her that she
received burn injuries while making food on stove.
Thereafter, her in-laws took her to a private dispensary,
which was found closed and then she was shifted to
Safdarjung hospital. She further stated that whenever
there was a quarrel, her father-in-law used to increase
volume of television so that neighbours would not know
that they were abusing her".
5. To bring home the guilt against the accused persons, the prosecution
examined 21 witnesses in all. Statements of the accused persons were
recorded under Section 313 of the Code of Criminal Procedure
wherein they denied all the incriminating facts and claimed to be tried.
The accused Suresh Singh took a plea that the complaint was lodged
by his father-in-law in anger after the unfortunate incident occurred
with his daughter. It was further stated that at the time of incident, he
was not present in his house. The accused Shanti Devi and Hari Singh
stated that they were present at the first floor whereas Bhawna
(deceased) was alone on the ground floor and she was cooking food
using a kerosene oil stove, where she used to reside with their son
Suresh Singh. It was further stated that they heard the alarm 'bachao'
and rushed to the ground floor and saw her burning. They
extinguished the fire and changed her burnt clothes and took her to the
hospital. They further stated that Suresh Singh was not at home and
the in-laws of Suresh had deposed falsely against them and they had
never demanded any dowry or money from them. Statement of one
more witness i.e. Hayat Singh was recorded as CW1 who proved the
death summary of the deceased.
6. Ms. Aashaa Tiwari, learned counsel appearing on behalf of the State
vehemently argued that the impugned judgment is contrary to the
settled position of law and thus not sustainable. The trial court
disregarded and failed to take into account the relevant material on
record and has based its findings on mere conjectures and surmises.
Further, the trial court gravely erred in disbelieving the dying
declaration duly recorded by the Sub Divisional Magistrate without
any cogent and justifiable reasons and the judgment suffers from
serious infirmities and deserves to be set aside.
7. The counsel for the State urged that the deceased suffered an unnatural
death within seven years of her marriage and thus attracts Section
113B of the Indian Evidence Act. The counsel further clarified that if
an offence is committed inside a house, the burden would be on the
inmates to give a cogent explanation as to how the crime was
committed and that onus would shift on the accused persons.
8. Counsel for the State further urged that the trial court gave undue
advantage to the fact that the deceased was not in a fit state of mind at
the time of making the dying declaration. Further, the court erred in
disbelieving the testimony of PW14 ASI Rajender Singh who fairly
conducted investigation of the case in the best possible way.
9. The counsel for the State further contended that the evidence of the
PW1 Sh. Kuldeep Singh (Sub Divisional Magistrate who recorded the
dying declaration), PW3 Sh. Hari Singh Jakhad (father of the
deceased), PW12 Smt. Malti Devi (mother of the deceased) and PW14
ASI Rajender Singh (Initial Investigating Officer) is concise, cogent
and satisfactory for holding the respondents guilty of the charged
offences.
10. The counsel for the State argued that the trial court has overlooked the
FSL report which clearly pointed towards the incriminating materials
used in the commission of this untoward incident.
11. On the basis of aforesaid submissions, it has been strongly urged by
the counsel for the State that the impugned judgment be set aside as it
has caused a grave miscarriage of justice.
12. Mr. Rajiv Mohan, learned counsel appearing on behalf of the
complainant Smt. Malti Devi (mother of the deceased) adopted the
arguments raised by the counsel for the State and further contends that
the trial court has failed to appreciate the forensic evidence adduced
by the prosecution on record which categorically suggests the
presence of kerosene oil on the clothes of the deceased as well as
bottle seized from the spot.
13. Learned counsel further contends that the trial court has not
considered the testimonies of PW14 ASI Rajender Singh (initial
investigating officer) and PW17 SI Tika Ram (investigating officer) in
right perspective wherein both the witnesses establish the presence of
kerosene oil on the spot.
14. Learned counsel further contended that the trial court has failed to take
into consideration the testimony of PW17 who categorically stated
that the stove from which the deceased caught fire appeared to be not
used for a long time.
15. Per contra, Mr. Arvind Singh learned counsel appearing on behalf of
all the respondents has canvassed the correctness of the view taken by
the trial court below in the judgment impugned before us. The counsel
submitted that the approach of the trial court led by the prosecution
cannot be found faulty.
16. The counsel for the respondents relied on the MLC Ex.18/A and the
testimony of Dr. Shishir Kumar PW19 wherein he deposed that the
alleged history was given by Bhawna herself and no police official
had met him on that day or thereafter.
17. The counsel for the respondents contended that when the dying
declaration was recorded by the SDM on 30.08.2011, there was no
certification of the doctor that she was in a fit state of mind to give the
dying declaration even though she had received 30% burns and that it
is highly improbable that the deceased was unfit to give any statement
at around 2.30 AM and was declared fit at about 10.00 in the morning;
hence it has no probative value.
18. The learned counsel thus argues that the conduct of the accused
persons immediately after the occurrence gives credence to the version
given by them under Section 313 of the Code of Criminal Procedure.
Learned counsel further contended that interference by this Court in
the impugned judgment is not warranted as the findings of acquittal
recorded by learned trial court are neither perverse nor against the
evidence.
19. We have heard learned counsel for the parties and also examined the
judgment in detail rendered by the trial court.
20. In order to appreciate the rival contentions of the learned Counsel for
the parties, we have independently scrutinized the evidence led by the
prosecution and examined the judgment of the trial court. At the
outset, it would be relevant to mention para 25 and 27 of the impugned
judgment wherein it was held as under:
"25. Now as per prosecution version, in her statement to
the SDM, Bhawna (deceased) stated that her mother-in-
laws and husband had told her to make a statement that
her cloths caught fire while she was cooking food on the
stove. Smt. Malti Devi (PW-12) categorically deposed
that she had met her daughter Bhawna before SDM had
recorded her statement. In her examination in chief, PW-
12 deposed that she had gone inside the ICU Ward at
about 09:30am and she had inquired from her daughter
as to what had happened and in the cross examination,
she deposed that SDM had come later on who might have
come after one hour of talk with her daughter. Similarly,
Hari Singh Jakhad (PW-3) father of deceased deposed
that he had gone inside the ICU to see his daughter. This
testimony of parents of deceased shows that they had met
the deceased before SDM had recorded her statement and
therefore had the opportunity to tutor and prompt the
deceased and this fact also makes it further doubtful that
the alleged dying declaration was true and voluntarily.
26. xxxx
27. To sum up, prosecution has failed to establish beyond
doubt that Bhawna (deceased) was in a fit state of mind
at the time when her statement was recorded by the SDM.
Furthermore, in view of the apparent discrepancies in the
two statements of Bhawna (deceased), it would be unsafe
to convict the accused persons. Thus, it cannot be
concluded that Bhawna (deceased) was set on fire on the
intervening night of 29th August, 2011 by the accused
persons or was subjected to cruelty or harassment by
accused persons in connection with demand of dowry at
any point of time beyond reasonable doubt..."
21. At the outset, before dealing with the submissions made by the
counsel for the parties, it would be relevant to discuss the material
testimonies on which the case of prosecution is based upon.
22. PW3 Hari Singh Jakhad (father of the deceased) in his testimony
deposed as under:
"In the morning at about 10.00 am SDM came there. He
recorded statement of Bhawna. SDM told me that
Bhawna appeared to be in a state of fear and we were
asked to make her understand. SDM did not record my
statement on that day."
PW3 in his cross-examination stated as under:
"I was allowed to enter in the hospital only after arrival
of SDM. My wife also went inside the hospital after the
arrival of SDM. SDM had not recorded my statement or
of my wife statement. We all met him at around 10.00am
and he informed us that Bhawna was hopeless."
23. PW12 Smt. Malti Devi (mother of the deceased) in her testimony
deposed as under:
"On 30.08.2011, at 05.00 am, we reached at Safdarjung
Hospital and met with our daughter Bhawna. My
daughter was not in a condition to speak and she was in a
unconscious state. At about 09.30 am, I again went inside
the ICU Ward, then I saw tear in the eyes of my daughter.
Although, I was allowed to remain in the ICU only for
sometime. On asking from my daughter as to what had
happened, my daughter told me that her mother-in-law
had poured kerosene oil from a bottle and her husband
Suresh threw a burning matchstick on her body and after
setting her ablaze, he went out of the room."
PW12 Smt. Malti Devi in her cross-examination stated as under:
"Bhawna had not told me that Suresh Singh had pressed
her neck and because of hitting on stomach, she fell at
some distance. Bhawna had not told me that her mother
in law had brought the kerosene oil from outside. Bhawna
had not told me that her mother in law had sprinkled
kerosene oil from the back side. It is wrong to suggest
that I have stated that kerosene oil was sprinkled from
front side as Bhawna was found burnt from the front
side."
However in later part of the cross examination, she stated as follows:
"Bhawana had told me that kerosene oil was sprinkled
from her front side."
24. PW12 further in her evidence stated as under:
"I cannot recollect the exact time when SDM had
reached in the hospital. SDM had come later on. He
might have come after one hour of my talk with my
daughter. I had no talk with SDM. Voln. SDM had met my
daughter and I only heard in saying that my daughter was
hopeless. I cannot tell for how much time, SDM stayed in
the hospital. My husband was also present in the hospital.
I cannot say if my husband had a conversation with
SDM."
25. Another witness adduced by the prosecution is the testimony of PW21
Sh. Hari Chand (neighbor of the deceased) who deposed as under:
"CQ: Whether you or any of the neighbour did not feel it
necessary to take the injured to the hospital or to
help her in your TSR?
Ans. No. Hari Singh or his wife had not requested
myself or any other person to help them, therefore,
we had not taken injured to the hospital or offered
help.
PW21 in his cross examination deposed as under:
"TSRs are available at Ratia Marg which is about half
km from our house. A clinic is also situated on the Ratia
Marg. I had heard that Bhawna had expired after about
four five days in the hospital but I had not visited the
hospital or the house of Hari Singh. I am not on visiting
terms with the family of Hari Singh except exchange of
greetings."
Medical Evidence:
26. PW19 Dr. Shishir Kumar prepared the MLC Ex.PW18/A and deposed
as under:
"On that day I medically examined at 10 pm Bhawna W/o
Suresh Singh, brought by her father in law namely Hari
Singh with the alleged history of thermal burn when her
cloth caught fire while cooking over kerosene stove."
27. It is important to notice that PW19 in his cross-examination stated as
under:
"The alleged history of burn was given by Bhawna
herself. No police man met me on that day or thereafter."
28. After reading the testimonies of the above witnesses, we find several
lacunas that makes the case of the prosecution not trustworthy as
PW21 stated that he was not on visiting terms with the family of Hari
Singh except exchange of greetings and the accused persons did not
requested him to help them. Furthermore, it is in evidence that the
deceased was brought to the hospital by the father-in-law which is
suggestive of this fact that PW21 had made every best possible effort
to save the life of the deceased. In the above backdrop, we conclude
that the testimony of PW21 is not sufficient to convict the accused
persons for the offences they have been charged with. So far as the
medical evidence is concerned, the doctor who prepared MLC
Ex.18/A in his testimony categorically deposed that deceased herself
told him that her clothes caught fire while cooking over kerosene
stove. The MLC of the deceased also suggests two things firstly it was
her father-in-law Hari Singh who brought the deceased to the hospital
and secondly the time on the MLC shows that the deceased was
admitted to the hospital at 10.00 pm however, the alleged incident is
of about 9.00 pm. Had it been the case, if the intention of the accused
persons was to kill her then they would not admit her to the hospital.
29. As far as the argument raised by the learned counsel for the
complainant is concerned, it is relevant to take into consideration the
testimonies of PW14 ASI Rajender Singh and PW17 SI Tika Ram, as
well as FSL report Ex.PW16/A which are necessary to decide the
present State appeals.
30. PW14 ASI Rajender Singh (initial investigating officer) in his
testimony deposed as under:
"SI Tika Ram reached at the spot. IO/SI Tika Ram had
inspected the spot at my instance. The burnt clothes of
Bhawana (deceased) from which the smell of kersosene
was coming and one stove was sealed in separated three
pullandas with the seal of TR.
xxx
At this MHC (M) produced one parcel No. 1 sealed with
the seal of FSL."
31. PW14 in his cross-examination stated as under:
"Soon thereafter, SDM had recorded statement of
Bhawna (sic). SDM had handed over to me the statement
of Bhawna at 11.00 AM. I was standing 5 feet inside the
ward. I was present inside the ward when SDM was
recording the statement of Bhawna.
xxxx
I had not seen burnt chunni, portion of the cigarette or
match stick at the place of occurrence."
32. PW17 SI Tika Ram in his testimony deposed as under:
"The stove was appeared to be in a condition as if, it was
not being used since long time. I sealed all the said
articles in separate cloth pulinda with the seal of TR and
seized the same vide memo Ex. PW14/D bearing my
signature at point B."
33. PW17 in his cross examination stated
"It could not be ascertain as to from what distance
behind Bhawna, the kerosene oil was poured on her by
her mother in law. Burnt match stick was not recovered
from the spot by me.
xxxx
I did not seized the clothes of Bhawna, which was
wearing when taken to the Safdarjung Hospital and was
replaced by the Hospital clothings."
34. FSL report Ex. PW16/A reads as under:
"DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL
(S) /EXHIBIT(S)
Parcel-„1‟ : One sealed cloth parcel sealed with the seals of "TR". It
was found to contain exhibits „1A‟ & „1B‟.
Exhibit-„1‟ : One orange coloured salwar damp and semi-burnt with
few dirty stains on it and One green coloured cloth piece
with range, golden & yellow embroidery designs charred
& burnt with dirty deposits on it stated to be "Kerosene
oil and water soaked deceased cloths.
Parcel-„2‟ : One sealed cloth parcel sealed with the seal of "TR". It
was found to contain exhibit „2‟.
Exhibit-„2‟ : One medium size white plastic bottle having dirty
deposits sticking inside it stated to be "half ltr. Plastic
bottle.
Parcel-„3‟ : One sealed cloth parcel sealed with the seals of "TR". It
was found to contain exhibits „3‟.
Exhibit-„3‟ : One metallic stove with burner and oil tank having few
dirty deposits stated to be "kerosene operated stove made
iron".
RESULTS OF EXAMINATION
On GC examination, exhibits „1, 2 & 3 were found to contain residue
of kerosene."
35. To analyse the argument of learned counsel for the complainant, we
again have to go through the dying declaration made by the deceased.
The deceased in her dying declaration recorded by the SDM stated
that her mother-in-law had brought kerosene oil from outside and
sprinkled the same on her chunni from behind and her husband
ignited a cigarette and threw burning match stick on her, went out of
the house as a result of which she caught fire. The deceased in her
dying declaration categorically stated that her mother-in-law had
brought kerosene oil from outside and sprinkled the same on her
chunni from behind. PW 12 Malti Devi (mother of the deceased) also
stated the same fact that her daughter her that kerosene oil was
sprinkled from her back side and Suresh was sitting on a sofa, who
lighted a cigarette with a match stick. Both the deceased and her
mother stated that the kerosene oil was sprinkled from the backside. In
this context it is necessary to peruse the postmortem report of the
deceased Bhawna Ex.PW 9/A wherein PW 9, Dr. Chetan Kumar has
opined that Infected epidermal-dermal deep burn injuries present over
the lower half of face, neck, front of chest and abdomen, in patches
over both upper limbs, upper part of front of thighs, spared right hand
and both pains. Bare reading of the post mortem would suggest that
the burns suffered by the deceased were on the front portion of her
body. Presence of burn injuries on the front portion creates a doubt in
the statements of the deceased as well as the mother of the deceased
that the kerosene oil was sprinkled from her backside. PW14 ASI
Rajender Singh (initial investigating officer) in his examination in
chief deposed that the burnt clothes of Bhawana (deceased) from
which the smell of kerosene was coming and one stove was sealed in
separated three pullandas with the seal of TR. But in his cross
examination he admitted that I had not seen burnt chunni, portion of
the cigarette or match stick at the place of occurrence. PW17 SI Tika
Ram in his examination in chief deposed that the stove was appeared
to be in a condition as if, it was not being used since long time. But in
his cross examination he admitted that burnt match stick was not
recovered from the spot and also that he did not seized the clothes of
Bhawna, which the deceased was wearing at the time when she was
taken to the hospital. From the above statements of the Investigating
officers they have admitted to the fact that there was no burnt chunni
and match stick was found at the spot. It is further established that no
efforts were made by them to ascertain the fact that the burnt injury
suffered by the deceased was due to kerosene. Keeping in view the
above contradictions in the testimonies of the aforestated witnesses it
would be highly unsafe to convict the respondents solely on their
testimonies and we are of the view that the dying declaration of the
deceased must be looked into.
36. Learned trial court while passing the impugned judgment has observed
that the present case rests mainly on the dying declaration made by the
deceased Bhawna. The dying declaration was recorded before PW1
(the then Sub Divisional Magistrate who recorded the statement)
wherein she alleged that her husband strangulated her neck and gave
kick blow on her stomach, due to which she fell down. It was further
stated by the deceased that the accused Shanti Devi came downstairs
from first floor with a bottle of kerosene oil and poured kerosene oil
on her and accused Suresh Singh threw an ignited matchstick upon her
and went outside from the house, thereafter when her kurti and salwar
caught fire through chunni, then her mother-in-law poured water to
douse the fire and then her father-in-law and mother-in-law took her to
a private dispensary which was found closed and then she was taken to
Safdarjung hospital. The deceased also stated that the accused person
forced her to say that she received injuries while making food on
stove.
37. The law relating to dying declaration is well settled. At this juncture, it
is relevant to take note of Section 32 of the Evidence Act, which deals
with the cases in which the statement of relevant fact by person who is
dead or cannot be found, etc. is relevant. The general rule is that all
oral evidence must be direct viz., if it refers to a fact which could be
seen it must be the evidence of the witness who says he saw it, if it
refers to a fact which could be heard, it must be the evidence of the
witness who says he heard it, if it refers to a fact which could be
perceived by any other sense, it must be the evidence of the witness
who says he perceived it by that sense. Similar is the case with
opinion. These aspects are elaborated in Section 60 of the Evidence
Act. The eighth clauses of Section 32 are exceptions to the general
rule against hearsay just stated. Clause (1) of Section 32 makes
relevant what is generally described as dying declaration, though such
an expression has not been used in any Statute. It essentially means
statements made by a person as to the cause of his death or as to the
circumstances of the transaction resulting in his death. The grounds of
admission are: firstly, necessity for the victim being generally the only
principal eye-witness to the crime, the exclusion of the statement
might deflect the ends of justice; and secondly, the sense of impending
death, which creates a sanction equal to the obligation of an oath. The
general principle on which this species of evidence is admitted is that
they are declarations made in extremity, when the party is at the point
of death and when every hope of this world is gone, when every
motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth; a situation so solemn and
so lawful is considered by the law as creating an obligation equal to
that which is imposed by a positive oath administered in a Court of
justice.
38. This is a case where the only evidence against the accused persons is
the dying declaration. The situation in which a person is on deathbed
is so solemn and serene when he is dying that the grave position in
which he is placed, is the reason in law to accept veracity of his
statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. Besides, should the dying declaration
be excluded it will result in miscarriage of justice because the victim
being generally the only eye-witness in a serious crime, the exclusion
of the statement would leave the Court without a scrap of evidence.
39. 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. The Hon'ble Supreme
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 reported in 1992 Cri LJ 2919:
(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 the 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 an 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.
(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction.
(vii) Merely because a dying declaration does 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 look up to the
medical opinion. But where the eyewitness said that the deceased was
in a fit and conscious state to make the 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.
In the light of the above principles, the acceptability of alleged dying
declaration in the instant case has to be considered. The dying
declaration is only a piece of untested evidence and must like any
other evidence, satisfy the Court that what is stated therein is the
unalloyed truth and that it is absolutely safe to act upon it. If after
careful scrutiny the Court is satisfied that it is true and free from any
effort to induce the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal impediment to make it
basis of conviction, even if there is no corroboration.
40. The courts have always favoured a dying declaration recorded by a
Magistrate, preferably in question and answer form after obtaining
fitness certificate from the doctor. These safeguards are insisted
because of an inherent flaw of admitting hearsay evidence without the
maker being subjected to cross-examination to test his veracity. By
virtue of Section 32 of the Evidence Act, a statement made by any
person is admissible when it relates to the cause of his death, or as to
any of the circumstances of the transaction which resulted in his death,
in case in which the cause of that person's death comes into question.
A dying declaration is admitted in evidence as a rule of necessity. It is
believed that a dying man does not lie while leaving this world but
then all safeguards have to be complied with to ensure that the dying
declaration is voluntary, truthful and has been made without tutoring
and in a fit state of mind.
41. It has been laid down in a catena of judgments that
the cardinal principle of criminal jurisprudence is that the prosecution
is supposed to prove its case on beyond reasonable doubt by leading
reliable, cogent and convincing evidence. Similarly, it is
established principle that prosecution is supposed to stand on its own
legs and cannot derive benefits whatsoever from the weakness, if any,
in the defence of accused.
42. It is an established fact that the parents of the deceased met her before
her statement was recorded by the Sub Divisional Magistrate and this
fact creates a doubt that the alleged dying declaration made by the
deceased is free from any form of tutoring. Applying the aforesaid
principles of law to the facts of the present case, we are of the
considered view that the guilt of the accused persons has not been
proved beyond reasonable doubt and we find the whole case of the
prosecution very shaky and doubtful because of various infirmities
and defects.
43. While deciding the present case the court must further take into
account the presumption of innocence of the accused persons and the
acquittal by the trial court adds to the presumption of his innocence. In
Ramanand Yadav v. Prabhunath Jha reported in 2004 Cri LP 640,
this Court observed:
"There is no embargo on the appellate Court reviewing
the evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered
with because the presumption of innocence of the accused
is further strengthened by acquittal. The golden thread
which runs through the web of administration of justice in
criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view
which is favourable to the accused should be adopted.
The paramount consideration of the Court is to ensure
that miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is cast upon
the appellate Court to re-appreciate the evidence in a
case where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused
committed any offence or not."
44. In State of Goa v. Sanjay Thakran and Another reported in (2007) 3
SCC 755. Relevant para has been reproduced as under:-
"14. By a series of decisions, this Court has laid down
the parameters of appreciation of evidence on record
and jurisdiction and limitations of the appellate court,
and while dealing with appeal against order of acquittal
this Court observed in Tota Singh and Anr. v. State of
Punjab (1987) 2 SCC 529, as under:
6....The jurisdiction of the appellate court in
dealing with an appeal against an order of
acquittal is circumscribed by the limitation
that no interference is to be made with the
order of acquittal unless the approach made
by the lower court to the consideration of
the evidence in the case is vitiated by some
manifest illegality or the conclusion
recorded by the court below is such which
could not have been possibly arrived at by
any court acting reasonably and judiciously
and is, therefore, liable to be characterised
as perverse. Where two views are possible
on an appraisal of the evidence adduced in
the case and the court below has taken a
view which is a plausible one, the appellate
court cannot legally interfere with an order
of acquittal even if it is of the opinion that
the view taken by the court below on its
consideration of the evidence is erroneous.
15. Further, this Court has observed in Ramesh Babulal
Doshi v. State of Gujarat (1996) 9 SCC 225:
7....This Court has repeatedly laid down that the mere
fact that a view other than the one taken by the trial court
can be legitimately arrived at by the appellate court on
reappraisal of the evidence cannot constitute a valid and
sufficient ground to interfere with an order of acquittal
unless it comes to the conclusion that the entire approach
of the trial court in dealing with the evidence was
patently illegal or the conclusions arrived at by it were
wholly untenable. While sitting in judgment over an
acquittal the appellate court is first required to seek an
answer to the question whether the findings of the trial
court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court
answers the above question in the negative the order of
acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that the
order of acquittal cannot at all be sustained in view of
any of the above infirmities it can then-and then only-
reappraise the evidence to arrive at its own
conclusions....
45. In State of Maharashtra through CBI Vs. Ahmad Shah Khan @
Salim Durani and Anr. reported in 2013 (3) SCALE 272, the Apex
Court held that :
"47. This Court has laid down parameters
for interference against the order of acquittal time and
again. The appellate court should not ordinarily set aside
a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be
the more probable one. While dealing with a judgment of
acquittal, the appellate court has to consider the entire
evidence on record, so as to arrive at a finding as to
whether the views of the trial court were perverse or
otherwise unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of fact, the
trial court had failed to take into consideration
admissible evidence and/or had taken into consideration
the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be
a subject-matter of scrutiny by the appellate court. In
exceptional cases where there are compelling
circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the
order of acquittal. The appellate court should bear in
mind the presumption of innocence of the accused and
further that the trial court's acquittal bolsters the
presumption of his innocence. Interference in a routine
manner where the other view is possible should be
avoided, unless there are good reasons for interference.
The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring
or excluding relevant material or by taking into
consideration irrelevant/inadmissible material. The
finding may also be said to be perverse if it is "against
the weight of evidence", or if the finding so outrageously
defies logic as to suffer from the vice of irrationality."
46. In the light of the entire above discussion, we conclude that the
learned trial court has given valid and substantial reasons for
disbelieving the prosecution version of the case. We agree with the
observations made by the learned trial court and are unable to be
persuaded by the observations made by the learned counsel for the
State to take a different view than the one taken by the learned trial
court.
47. We are of the view that the learned trial court has given detailed
reasons for disbelieving the prosecution case and we are not inclined
to take a different view. We find no infirmity in the judgment of the
learned trial court. The acquittal recorded by the trial court is based
on reasons. Consequently, the appeals are dismissed.
SANGITA DHINGRA SEHGAL, J
G. S. SISTANI, J
April 29, 2016 / gr//
