Witness is not Supporting the Prosecution - Not Declared Hostile - Defence can Rely on such witness which would be binding on the Prosecution

Evidence Law - If prosecution witness is not supporting the prosecution case and such witness is not declared hostile, the defence can rely on the evidence of such witness which could be binding on the prosecution. 

Medical Jurisprudence - If the statement of deceased is not recorded in MLC report by the doctor, doctor's oral testimony cannot be disbelieved. In MLC report the doctor is not statutorily or otherwise obliged to record the factual version/statement of victim. 

Dying Declaration- (i) 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 by other evidence. (ii) Dying declaration not read over and explained to deceased creates a doubt on its credibility and truthfulness. [Paras 12, 13 & 14]

THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR

Justice Sujoy Paul & Justice Sushil Kumar Palo

Criminal Appeal No.315/2008

Sanju vs. State of Madhya Pradesh

Date of Judgment 05/03/18 

For Appellant: Shri Amolak Singh parties Makhija, Amicus Curiae. 

For Respondent: Shri Manish Soni, Govt. Advocate. 

JUDGMENT 

Per: Sujoy Paul J; 

This appeal filed under Section 374 (2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 22.01.2008 passed by learned Additional Sessions Judge, Sohagpur, District Hoshangabad in Sessions Trial No.313/2006 whereby the appellant was held guilty for offence punishable under Section 302 of IPC and directed to undergo rigorous imprisonment for life with fine of Rs.500/- with default stipulation. 

2. Facts giving rise to the present appeal fall within a very narrow compass and are being stated at the very outset. 

3. The case of the prosecution is that on 09.07.2006, at around 12 p.m., the appellant had poured kerosene on his wife Babita and set her ablaze. The dehati nalishi (Ex.P.-19) was recorded on the report of Babita on 10.07.2006. Babita stated that her marriage was solemnized with the appellant on 24.06.2006. On 09.07.2006, Babita was unwell and, therefore, she informed her husband that she intends to sleep at a different place. Her husband got annoyed by this and poured kerosene on her and set her ablaze. The family members took her to the Government Hospital, Pipariya. MLC report (Ex.P- 13) was prepared by Dr. Anuradha Dehariya (PW-14). The dying declaration of Babita was recorded by Shri S.N. Solanki, Tahasildar/Executive Magistrate (PW -18). On the basis of dehati nalishi of Police Station Pipariya, FIR (Ex.P-20) was lodged. The dying declaration was recorded by the said Executive Magistrate in presence of Dr. Anuradha Dehariya (PW-14). 

4. Since Babita died during treatment, Dr. Sudheer Vijayvargiya (PW-15) sent information to the police, on the basis of which merg intimation (Ex.P-16) has been lodged by Police Station Hoshangabad. ASI- Smt. Poornima Mandogade (PW-21) reached the hospital and prepared the Panchnama (Ex.P-17) of the deadbody. 

5. Shri D.S. Chouhan (PW-10) visited the place of incident and prepared a spot map (Ex.P-5). The Investigating Officer seized the kerosene mixed earth and a burnt saree (Ex.P-6). The seized material was sent to Forensic Science Laboratory by Ex.P-9. The report of said Laboratory is Ex.P-10. 

6. Before the trial Court, twenty one witnesses entered the witness box on behalf of the prosecution. The defence did not led any evidence in rebuttal. The Court below on the basis of the statement of Shri S.N. Kourav, SI (PW-20) opined that dehati nalishi was recorded on the report of Babita herself. FIR was founded upon the said dehati nalishi. Medical witness Dr. Anuradha Dehariya (PW-14) stated that Babita's blood pressure report was not normal. Her pulse was almost not traceable and she was burnt to the extent of 70%. Babita's face, both hands, hair, neck, breasts, both thighs and legs were in burnt condition which is evident from MLC report (Ex.P- 13). The Court below found that the relevant material from the spot was duly collected by the Investigating Officer. The reason of death was burn injuries. Dehati nalishi, dying declaration and statement of various prosecution witnesses show that the appellant had set her ablaze on 09.07.2006 by pouring kerosene on her. 

7. The argument of the appellant is that he is falsely implicated. His wife Babita herself poured kerosene and set herself ablaze. This was categorically deposed by Maya Bai (PW-4). The said witness was not declared as hostile by the prosecution. Similar statement was made by Dr. Anuradha Dehariya (PW-14). A conjoint reading of these statements makes it clear that the Court below has erred in holding that the charges were found proved beyond reasonable doubt. 

8. Learned amicus curiae for the appellant contended that in view of aforesaid statements of Maya Bai (PW-4) and Dr. Anuradha Dehariya (PW-14), the Court below ought to have exonerated the appellant. Record shows that another defence of appellant was that in the manner dying declaration was recorded, it is totally unsafe to rely on it. 

9. Per contra, learned Government Advocate supported the impugned judgment and contended that the Court below has passed a detailed judgment and considered the aforesaid points raised by the appellant. There is no illegality in the findings of the Court below which warrant interference by this Court. 

10. No other point is pressed by learned counsel for the parties. 

11. We have heard learned counsel for the parties at length and perused the record. 

12. In the present case, dehati nalishi (Ex.P/19) was recorded at the instance of deceased Babita on 10.07.2006 at 8:10 AM, whereas the dying declaration was recorded on the same date at 8:15 AM. Both the documents are written within few minutes. The Court below has given much credence to the dying declaration and chain of events as per the deposition of prosecution witnesses. The statement of Maya Bai (PW-4) was disbelieved on the ground that she is not an eye witness to the incident and she has not seen Babita pouring kerosene and setting herself ablaze. Similarly, the statement of Dr. Anuradha Dehariya (PW-14) was also disbelieved for the reason that she in her MLC report did not mention that Babita informed her that she poured kerosene and set herself ablaze. Dr. Dehariya should have inform this fact to the police and this finding should have been given in MLC report (Ex.P/13). Dr. Dehariya did not inform the Tehsildar (PW-18) about the said statement of deceased-Babita. It is relevant to note here that Maya Bai (PW-4) and Dr. Anuradha Dehariya (PW-14) were prosecution witnesses. Maya Bai in her examination-in-chief specifically deposed that when she reached at the spot, Babita was crying and weeping. She inquired from Babita about the reason of fire and, in turn, Babita informed her that she herself poured kerosene and put herself on fire. She was not willing to marry a villager and her parents compelled her to marry a villager. This witness was not declared hostile by the prosecution and, therefore, the prosecution has not cross-examined this witness. Similarly, Dr. Anuradha Dehariya (PW-14) candidly stated that when she went to see the patient i.e., Babita she informed her about the reason of burn injuries. Babita also informed her that she wanted to live alone and for this reason she had quarrel with her husband and because of anger she put herself ablaze. Dr. Dehariya further deposed that she informed about the said stand of Babita to Tehsildar. Interestingly, this independent witness was also not declared as hostile and was not put to cross-examination. This is trite law that if prosecution witness is not supporting the prosecution case and such witness is not declared hostile, the defence can rely on the evidence of such witness which would be binding on the prosecution. In 2005 (5) SCC 272 [Raja Ram vs. State of Rajasthan], the Apex Court held that the testimony of such witness cannot be side lined. This principle is followed in 2005 (5) SCC 258 [Mukhtiar Ahmed Ansari vs. State (NCT of Delhi)]. In this case, the Supreme Court opined that statement of PW-1 destroyed the genesis of the prosecution. Thus, the statement of such prosecution witnesses are very important piece of evidence. Maya Bai (PW-4) is neighbour of appellant and if only little credence is given to her statement by treating her to be a known person to the appellant, who can be won over, Dr. Dehariya (PW-14) is totally an independent person. The statement of Tehsildar (PW-18) was recorded after recording the statement of Dr. Anuradha Dehariya. No attempt was made by the prosecution to examine him on this aspect. The Tehsildar (PW-18) did not depose that Dr. Dehariya did not inform her about the different story narrated to her by deceased- Babita. The prosecution had every opportunity to cross-examine Dr. Dehariya regarding the narration of Babita to her. Thus, the statements of these two witnesses cannot be easily brushed aside and their statements creates serious doubt on the prosecution story. The Court below has disbelieved the statement of Dr. Anuradha Dehariya (PW-14) on yet another ground that she did not narrate the version of Babita in her MLC report. We do not see any force in such reason. In the MLC report, the doctor is not statutorily or otherwise obliged to record such factual version. In "Modi's Medical Jurisprudence and Toxicology" the author opined that the medico legal report consist of three parts, namely, (1) introductory or preliminary data, for example full name, age, address, date, place and time of examination, including identity marks; (2) the facts observed on examination; and (3) the opinion or the inference drawn from the facts. Similar view is taken by another author in "Lyon's Medical Jurisprudence and Toxicology". In this view of the matter, merely because Dr. Anuradha Dehariya (PW-14) has not recorded the stand of deceased- Babita in her MLC report, the same cannot be disbelieved nor her deposition will vanish in thin air. 

13. As noticed, the dehati nalishi and dying declaration are very crucial piece of evidence on the strength of which the edifice of prosecution is rested. The dying declaration, no doubt is a very important piece of evidence. The admissibility of the dying declaration rests upon the principle of nemo moriturus praesumitur mentire (a man will not meet his Maker with a lie in his mouth). The Apex Court in 2012 (4) SCC 327 (Bhajju @ Karan Singh Vs. State of M.P.) has held that the "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring 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 by other evidence. 

14. It is pertinent to note that in the case of Bhajju @ Karan Singh (Supra) the Apex Court held that the law is very clear that if dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. The Court has clearly stated the principle that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence. Section 32(1) makes the statement of the deceased admissible, which is generally described as a "dying declaration". Hence, the question is whether in the present case, the dying declaration is properly recorded and whether it is safe to rely upon such dying declaration. This point requires serious consideration. 

15. During cross-examination, the Tehsildar (PW-18) admitted that he has not mentioned in the dying declaration that the statement of deceased- Babita was read over and explained to her. The dying declaration does not contain any such declaration. This aspect was considered by Supreme Court in the case reported in AIR 1999 SC 3512 [Jai Karan vs. State of NCT, Delhi]. Since the dying declaration was not read over and explained to the injured, the said document was disbelieved by the Supreme Court. It was poignantly held that it was not safe to convict the appellant on the basis of such dying declaration. The similar point was against considered in 2007 (11) SCC 269 [Shaikh Bakshu & others v. State of Maharashtra]. In this case, in dying declaration, there was no mention that it was read over and explained to deceased, yet trial Court and High Court concluded that even though no such statement was available, it can be presumed that it was read over and explained. The view of trial Court and High Court held to be clearly unacceptable. In 2009 (12) SCC 498 [Kantilal vs. State of Rajasthan], it was held that the fact that the dying declaration did not bear endorsement to the fact that it was read over and explained to the deceased, also creates a doubt on its credibility and truthfulness. The ratio decidendi of aforesaid judgments were followed by this Court in cases reported in 2008 SCC Online MP 562 [State of M.P. vs. Raj Bahadur], 2010 SCC Online MP 620 [Ramveer singh vs. State of M.P.] and 2012 SCC Online MP 4281 [Smt. Rajabeti W/o Shri Gopal vs. State of M.P.]. In view of aforesaid principle, it can be safely concluded that dying declaration, in the present case, is also not trustworthy because it does not contain any such endorsement. 

16. In view of aforesaid analysis, in our considered opinion the statements of Maya Bai (PW-4) and Dr. Anuradha Dehariya (PW-14) cannot be easily brushed aside. In view of their statements, the story of prosecution has become vulnerable. It is equally not safe to rely on the dying declaration. As noticed in para 12 of this judgment, the dehati nalishi was recorded at 8:10 AM, whereas the dying declaration was recorded at 8:15 AM on the same day. Hence, it can be safely concluded that both the statements were recorded at the same place in a gap of five minutes. In view of our elaborated analysis, it is not safe to rely on the dying declaration. Since, the dying declaration and dehati nalishi were recorded almost simultaneously, it will be equally unsafe to solely rely upon dehati nalishi. For these cumaltive reasons, it is not safe to upheld the conviction of the appellant. 

17. In view of aforesaid analysis, in our considered opinion, the appellant should get the benefit of doubt and it will not be proper to give stamp of approval to the judgment of sentencing and convicting the present appellant. Resultantly, the said judgment dated 22.01.2008 is set aside. If appellant is not required in any other criminal case, he shall be set free forthwith. At the end, we record our appreciation to the assistance given by the learned counsel for the parties. 

18. Appeal is allowed. No cost.