Criminal P.C. 1973 - S.374 - Penal Code, 1860 - S. 302 - Evidence Act, 1872 - S. 32 - Dying Declaration - Admissibility of - One of the principles, which is always kept in mind, while examining the dying declaration of the deceased is that "a man will not meet his Maker with a lie in his mouth".
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
BEFORE D.B. HON'BLE
MR. JUSTICE S.C. SHARMA & HON.MR. JUSTICE ROHIT ARYA
18.06.2018
Criminal Appeal No.697/2006
Santosh S/o Rumal Adiwasi . . . Appellant Versus
State of Madhya Pradesh . . . Respondent
Shir Abhishek Bajpai, learned counsel for the appellant. Shri H.Y. Mehta, learned Government Advocate for the
respondent/State.
Per
: S.C. Sharma, Justice:
The present Criminal Appeal has been filed under Section 374 of
the Code of Criminal Procedure (hereinafter referred as Cr.P.C.) and is arising
out of the judgment of conviction dated 17.05.2006 passed by the learned
Additional Sessions Judge in Session Trial No.226/2005, Sardarpur,
District-Dhar, whereby the present appellant has been convicted under Section
302 of the Indian Penal Code and has been sentenced to undergo R.I. for Life along
with fine of Rs.500/- and in default of payment of fine further four months
simple imprisonment.
2. As per prosecution case, on
31.06.2006 at about 9:00 pm, a F.I.R. was lodged at Police Station-Sardarpur in
respect of Crime No.134/2005. As per the F.I.R., the complainant has lodged a
report that her husband used to subject her to cruelty and on 31.05.2006, her
husband assaulted her and poured kerosene on her, and thereafter, put her on
fire. The villagers took the complainant to the hospital. The complainant was
given proper treatment, however, she expired and initially an offence was
registered under Section 307 of the IPC and later on, on account of death after
investigation, charge-sheet was filed for offences under Sections 307 and 302
of the IPC.
3. The police after
investigating the matter, has prepared a Naksha Panchayatnama (Exhibit-P/5). Exhibit-P/8
is the postmortem report. Exhibit-P/3 is the seizure memo reflecting seizure of
plastic container, match box, soil, certain broken bangles and burnt clothes
having smell of kerosine. The articles were sent to Forensic Science Laboratory
and Exhibit-P/16 is the report received from Forensic Science Laboratory,
Sagore. Exhibit-D/1 was the report of the incident, which has been sent to the
accused.
4. The police has examined
various witnesses and their statement has been recorded under Section 161 of
the Cr.P.C. namely Gulab, Ramabai, Gangabai, Ramsingh, Jhetra, Hazaribai and
Rumal, and thereafter, charge-sheet has been filed in the matter.
5. Before the trial Court, the
prosecution has examined Dhan Singh (P.W-1), Rajendra Prasad P.S. (P.W-2),
Jhetra (P.W-3), Munnalal (P.W-4), Ramesh (P.W-5), Hajari Bai (P.W-6), B.R. Yadav (P.W-7) and Dr. M.L. Jain (P.W-8) and in defence Ramu (D.W-1)
was examined. The accused was also examined and he has denied the commission of
crime.
6. Jhetra (P.W-3) is the
father of the deceased and he has stated that the appellant used to fight with
his daughter and he has received the information about the death of his
daughter only after she expired.
7. Ramesh (P.W-5) has stated
that death of Ganga Bai has taken place on account of the burn injuries.
8. Hazari Bai (P.W-6) is the
mother of the accused and she has not supported the case of the prosecution.
9. Another important aspect of
the case is that none of the witnesses has seen the accused pouring kerosine
over the deceased and conviction of the present appellant in the present case
is based upon the dying declaration of the deceased.
10. Dr. M.L. Jain (P.W-8), who
was posted at Primary Health Center, has stated that at about 11:00 pm in the
night when Ganga Bai was brought to Primary Health Center, she was in her
senses, and thereafter, she was referred to bigger hospital at District-Dhar and
the information was also sent to the police i.e. Exhibit-P/11 Police
Station-Sardarpur. He has categorically stated that he has recorded the dying
declaration (Exhibit-P/12) and Ganga Bai has categorically stated that he husband
assaulted her and later on poured kerosine on her, and thereafter, put her on
fire.
11. Dr. M.L. Jain (P.W-8) has
further stated that on 01.06.2005 at about 10:00 am in the morning, the dead
body was brought for postmortem and the postmortem was carried out. The body
was having serious burn injuries. The wind pipe was having carbon particles, it
was conjusted and the death has occurred on account of the burn injuries. Dr.
M.L. Jain has reiterated that when the dying declaration (Exhibit-P/12) was given
by the deceased, she was in a fit condition for giving the dying declaration.
12. Not only this, another
important aspect of the case is that the report itself was lodged by the
deceased i.e. Exhibit-P/7 (Dehatinalishi) and in the Dehatinalishi, she has also stated that her husband poured kerosine over her
and she was subjected to fire by him by using match box.
13. Thus, Ganga Bai in her dying declaration (Exhibit-P/12), in Dehatinalishi (Exhibit-P/6) as well as in
her statement recorded under Section 161 of the Cr.P.C. has repeated the same
story that her husband poured kerosine over her and she was subjected to fire by
him.
14. Not only this, seizure memo
(Exhibit-P/3) reflects seizure of container of kerosine, burnt clothes and
report (Exhibit-P/16) of the Forensic Science Laboratory also corroborate the
factum of the incident. In the present case, the basic question before this
Court is whether the dying declaration can be relied upon or not.
15. Dr. M.L. Jain (P.W-8) in
his statement categorically stated that Ganga Bai was in her senses at the time
when she was brought to the hospital. He submits that he has recorded the dying
declaration of Ganga Bai and as the condition was deteriorating, she was
referred to a bigger hospital. The dying declaration categorically establishes
involvement of the present appellant in respect of the crime in question and it
was voluntarily given by the deceased before her death.
16. Undisputedly, in the
present case, there are minor contradictions and omissions and an attempt has
also been made by the learned counsel for the appellant while arguing the
matter that it is a case of suicide and not of murder. The dying declaration is
certainly a clinching evidence in the peculiar facts and circumstances of the
case.
17. Learned counsel for the
appellant has placed reliance upon a judgment delivered in the case of Laxmi (Smt.) v/s
Om Prakash & Ors (2003) 6 SCC 118 and in the aforesaid case, which is the case of
burning, the Hon’ble apex Court has upheld the acquittal, as the deceased was
not in a fit mental and physical condition to make the dying declaration.
18. In the present case, as per
the statement of Dr. M.L. Jain (P.W-8), the deceased was certainly in her
senses when the dying declaration was recorded and the dying declaration given
by the deceased is against the present appellant. She has given the same statement
in her statement recorded under Section 161 of the Cr.P.C. and in Dehatinalishi also, she has given the
same version of story, and therefore, the judgment relied upon by learned
counsel for the appellant is of no help to the appellant.
19. Moreover, the apex Court in
the aforesaid case in paragraph-1 has held as under:-
“A dying declaration made
by person on the verge of his death has a special sanctity as at that solemn
moment, a person is most unlikely to make any untrue statement. The shadow of impending
death is by itself the guarantee of the truth of the statement made by the deceased
regarding the causes or circumstances leading to his death. A dying
declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence,
coming as it does from the mouth of the deceased victim. Once the statement of
the dying person and the evidence of the witnesses testifying to the same
passes the test of careful scrutiny of the Courts, it becomes a very important and
a reliable piece of evidence and if the Court is satisfied that the dying
declaration is true and free from any embellishment such a dying declaration,
by itself, can be sufficient for recording conviction even without looking for
any corroboration is the statement of law summed up by this Court in Kundula
Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684. The Court added - such a
statement, called the dying declaration, is relevant and admissible in evidence
provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgment,
has been necessitated as this appeal, putting in issue acquittal of the accused
respondents from a charge under Section 302/34 IPC, seeks reversal of the
impugned judgment and invites this court to record a finding of guilty based on
the singular evidence of dying declaration made by the victim. The law is well
settled: dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration,
if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated
dying declaration for finding conviction. A dying declaration, as a piece of
evidence, stands on the same footing as any other piece of evidence. It has to
be judged and appreciated in the light of the surrounding circumstances and its
weight determined by reference to the principles governing the weighing of
evidence. It is, as if the maker of the dying declaration was present in the
court, making a statement, stating the facts contained in the declaration, with
the difference that the declaration is not a statement on oath and the maker
thereof cannot be subjected to cross-examination. If in a given case a particular
dying declaration suffers from any infirmities, either of its own or as
disclosed by other evidence adduced in the case or circumstances coming to its
notice, the court may as a rule of prudence look for corroboration and if the
infirmities be such as render the dying declaration so infirm as to prick the conscience
of the court, the same may be refused to be accepted as forming safe basis for
conviction.”
20. In
light of the aforesaid, this Court is of the opinion that no case for
interference is made out in the matter.
21. Learned counsel for the
appellant has also placed reliance upon the judgment delivered in the case of Garibdas alias
Pappu Choudhary v/s State of Madhya Pradesh 2014 Cri.L.J. 3538.
22. In the aforesaid case, the
Division Bench of this Court has acquitted the accused therein by holding that
it was not mentioned in the dying declaration that it was read out and
explained to the deceased and she accepted it.
23. In the considered opinion
of this Court and keeping in view the totality of the facts and circumstances
of the case, as the deceased was in her senses at the time when the dying
declaration was recorded and merely because it has not been signed by the deceased,
in no way it can be helpful to the present appellant. No suspicion can be
raised upon the document Exhibit-P/12, which is dying declaration of the
deceased and it was recorded by an independent person i.e. Dr. M.L. Jain and
the same version of story finds place in the Dehatinalishi as well as in the statement
recorded under Section 161 of the Cr.P.C.
24. Learned counsel for the appellant has also placed reliance upon
a judgment delivered in the case of Jaikaran v/s State of Delhi (NCT)
(1999) 8 SCC 161. Heavy reliance has been placed upon paragraph-10 of the
aforesaid judgment.
25. The apex Court in the
aforesaid case has held that a dying declaration is admissible in evidence on
the principle of necessity and can form the basis for conviction, if it is
found to be reliable.
26. In the present case, there
is no reason to disbelieve the dying declaration nor any reason for not relying
upon the same. The deceased was in her senses at the time when the dying
declaration was recorded by the doctor and there is other corroborative evidence
also. Hence, again the judgment relied upon by learned counsel for the
appellant does not help the appellant in any manner.
27. The apex Court in the case
of Vutukuru Lakshmaiah Vs. State of Andhra Pradesh reported in (2015) 11 SCC
102 has dealt
with the evidentiary value of dying declaration. Paragraph No.20 and 21 of the
aforesaid judgment reads as under:-
“20. The next limb of submission of the learned senior counsel for
the appellants relates to acceptability and reliability of the dying
declaration recorded vide Ex. P-13. The criticism is advanced on the foundation
that it is absolutely vague. It is urged by him that the dying declaration
being absolutely infirm, it cannot be placed reliance upon and once the dying
declaration is discarded, a serious dent is created in the prosecution story.
To appreciate the said submission, we have carefully scrutinized the contents
of the dying declaration contained in Ex. P-13, which has been recorded by the
Additional Judicial Magistrate, First Class, PW-18. In his testimony, he has
categorically stated every aspect in detail and nothing has been elicited in
the cross-examination. At the time of recording of the dying declaration, as
the material would show, the declarant was absolutely in a conscious state and there
is an endorsement in that regard by the treating doctor. The submission that
the dying declaration is eminently vague is neither correct nor is it based on
any material on record. On the scanning of the dying declaration, we find that
he has named Vutukuru Laxmaiah, A-1, Rayapu Sreenivasalu, A-2, Rayapu Subbaiah,
A- 3, Meriga Ramanaiah, A-5, Amburi Raja, A-8, Rayapu Ravi, A-9, and Rapayu
Siddaiah. Thus, in the absence of any kind of infirmity or inherent
contradiction or inconsistency or any facet that would create a serious doubt
on the dying declaration, we are not inclined to discard it.
21. It is well settled in law
that conviction undisputedly can be based on dying declaration, if it is found
totally reliable. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka, (2007) 13 SCC 112 while
discarding multiple dying declaration, the Court held thus: (SCC p.115, para 7)
“Conviction can indisputably be based on a dying declaration. But, before it
can be acted upon, the same must be held to have been rendered voluntarily and truthfully.
Consistency in the dying declaration is the relevant factor for placing full
reliance thereupon. In this case, the deceased herself had taken contradictory and
inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value.
Caution, in this behalf, is required to be applied.”
28. In light of the aforesaid
judgment, as there is no infirmity or inherent contradiction or inconsistency
or any facet that would create a serious doubt in respect of dying declaration,
the conviction based upon the dying declaration does not warrant any
interference.
29. In the case of Vijay Pal Vs.
State (Government of NCT of Delhi) reported in (2015) 4 SCC 749, the Hon'ble Supreme Court has dealt with evidentiary value of
the dying declaration by taking into account Sec. 32 of Evidence Act, 1872. It
has been held that if the dying declaration is absolutely credible and nothing
is brought on record that deceased was in such a condition that he or she could
not have made a dying declaration to a witness, there is no justification to
discard the same. It was again a bride burning case and the dying declaration
was held worthy. Paragraphs No.10 to 12 and 16 to 22 of the aforesaid judgment
reads as under:-
“10. To appreciate the rivalised submissions raised at the bar, we
have perused the judgments of the trial Court and the High Court with concerned
anxiety and cautiously scrutinized the evidence on record. As we find, there
are basically seven witnesses whose evidence are important, they are Satish,
brother of the deceased, PW-1, Shivcharan, father of the deceased, PW-8, Dr.
G.K. Chaubey, who conducted the post mortem, PW-5, Seema, daughter of the
deceased, PW-3, Shanker Lal, PW-2 and Surender, PW-4 who informed the police at
the first instance and Vijender Singh, PW-21, the sub-Inspector who recorded
the statement. At this juncture, it is necessary to mention that apart from
PW-3, PWs 2, 4 and 8, were also declared hostile by the prosecution and were
cross-examined by the state. In this backdrop, it is to be seen whether the
material brought on record is sufficient enough to sustain the conviction on a
scrutiny of the Exbts. PW-1/A, PW-1/B, PW-1/D, PW-1/E, PW-1/F and Exbt. P- 2
that were seized.
11. From the oral evidence and
the seized items from the place of occurrence, it is quite vivid that the deceased
had suffered burn injuries which lead to her death. It was PW-3, the daughter of
the deceased, who witnessed the quarrel and rushed to the home of her
grandparents. The learned trial Judge has put the relevant question to her to
find out whether she was in a position to understand the questions and depose
in Court. In her evidence, she had stated that on the fateful day about 11.00
p.m. her mother was preparing food for the children and for the said purpose
she was pouring kerosene oil in the stove as it was empty and thereafter when
she tried to light the stove, the kerosene oil was not coming from the nozzle
of the stove, then the deceased inserted a pin in the nozzle and the oil
sprinkled on her and in the process she caught fire. On being declared hostile,
she was crossexamined. It is relevant to note here that she has first deposed that she
was not aware who had removed her mother to the hospital and thereafter changed
her stand stating that her uncle had removed her mother. As her testimony would
show she has not mentioned whereabouts of her father at the time of the
incident. Her ignorance about how the mother was shifted to the hospital shows
that as the High Court has correctly analysed, she has not spoken anything
about her father in order to protect him.
12. Keeping in abeyance whether
the plea of alibi taken by the accused is proven or not to be dealt with at a
later stage, we think it apposite to scan the evidence of other witnesses.
PW-1, the brother of the accused, has unequivocally deposed that after getting
the information from Seema, PW-3, his father and he rushed to the house of the
deceased. As is evincible from the testimony, he reached the house of the
sister first and found she was burning and she told him that his brother-in-law
had poured kerosene and put her ablaze. She has also stated that the children should
not be given to the accused. He has, in detail, spoken about going to the
hospital and how the site plan was prepared and the items were seized in
presence of the witnesses. In the crossexamination, no suggestion has been
given about the absence of husband in the house, contrivance of the dying
declaration by him or anything which would create a dent in his testimony. What
has been sought to be brought in the cross-examination is that no one was
present in the room of the deceased and certain other questions which have
nothing to do with the incident. It has been suggested to him that his sister
and the accused had kept Rs.90,000/- with his father, PW-8, for purchasing a
house and as they refused to return the money, they had, getting an
opportunity, falsely implicated the accused. It has also come out in the
crossexamination that the accused was a habitual drinker and gambler and his
family was supported by the in-laws.
16. Having stated about the
medical evidence that has been brought on record and how such an evidence is to
be valued, we think it apt to dwell upon the oral dying declaration which has been
placed reliance upon by the trial Court as well as the High Court. As per the
evidence of the brother, Satish, PW-1, he after reaching the place of
occurrence found his sister ablaze and she had stated that her husband has
poured kerosene on her and put her ablaze. There is material to show that the
father, Shivcharan, PW-8, arrived after his son. The prosecution has explained
about the delayed arrival of the father.
17. The submission of the learned
counsel for the appellant is that the oral dying declaration lacks intrinsic
truth and it does not deserve acceptance. At this juncture we think it
appropriate to refer to certain authorities how an oral dying declaration is to
be scrutinized.
18. In the case of Laxman v. State of
Maharashtra (2002) 6 SCC 710, the Constitution Bench has held thus: (SCC
pp.713-14, para 3)
"The juristic theory regarding acceptability of a dying
declaration is that such declaration is made in extremity, when the party is at
the point of death and when every hope of this world is gone, when every motive
to falsehood is silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great caution
must be exercised in considering the weight to be given to this species of
evidence on account of the existence of many circumstances which may affect
their truth. The situation in which a man is on the deathbed 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 courts 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 always
to be on guard to see that the statement of the deceased was not as a result of
either tutoring or prompting or a product of imagination. The court also must
further decide that the deceased was in a fit state of mind and had the opportunity
to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying declaration looks 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 any adequate method
of communication whether by words or by signs or otherwise will suffice provided
the indication is positive [pic]and definite."
19. The aforesaid judgment
makes it absolutely clear that the dying declaration can be oral or in writing
and any adequate method of communication whether by words or by signs or otherwise
will suffice, provided the communication is positive and definite. There cannot
be any cavil over the proposition that a dying declaration cannot be
mechanically relied upon. In fact, it is the duty of the Court to examine a
dying declaration with studied scrutiny to find out whether the same is
voluntary, truthful and made in a conscious state of mind and further it is
without any influence.
20. At this juncture, we may
quote a passage from Babulal v. State of M.P. (2003) 12 SCC 490 wherein the value of dying declaration in
evidence has been stated: (SCC p. 494, para 7)
"7. ... A person who is
facing imminent death, with even a shadow of continuing in this world
practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak
only the truth. Great solemnity and sanctity is attached to the words of a
dying person because a person on the verge of death is not likely to tell lies
or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his
mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said,
"truth sits on the lips of a dying man". The general principle on
which the 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 mind induced by
the most powerful consideration to speak the truth; situation so solemn that
law considers the same as creating an obligation equal to that which is imposed
by a positive oath administered in a court of justice."
21. Dealing with
the oral dying declaration, a two-Judge Bench in Prakash v. State of
M.P. (1992) 4
SCC 225 has stated thus: (SCC p. 234, para 11)
"11. ... In the ordinary
course, the members of the family including the father were expected to ask the
victim the names of the assailants at the first opportunity and if the victim
was in a position to communicate, it is reasonably expected that he would give
the names of the assailants if he had recognised the assailants. In the instant
case there is no occasion to hold that the deceased was not in a position to
identify the assailants because it is nobody's case that the deceased did not
know the accused [pic]persons. It is therefore quite likely that on being asked
the deceased would name the assailants. In the facts and circumstances of the
case the High Court has accepted the dying declaration and we do not think that
such a finding is perverse and requires to be interfered with."
22. Thus,
the law is quite clear that if the dying declaration is absolutely credible and
nothing is brought on record that the deceased was in such a condition, he or
she could not have made a dying declaration to a witness, there is no
justification to discard the same. In the instant case, PW-1 had immediately
rushed to the house of the deceased and she had told him that her husband had poured
kerosene on her. The plea taken by the appellant that he has been falsely
implicated because his money was deposited with the in-laws and they were not
inclined to return, does not also really breathe the truth, for there is even
no suggestion to that effect.”
30. In the case of Ramakant Mishra Alias Lalu and Others
Vs. State of Uttar Pradesh reported in (2015) 8 SCC 299, the apex Court again
while dealing with relevant factors for determining authenticity of dying
declaration, in paragraph No.11 to 13 has held as under:-
“11. The central question,
however, remains as to whether the alleged Dying Declaration attracts
authenticity. Since the prosecution has succeeded in showing/proving by
preponderance of probability that a dowry death has occurred, the burden of
proving innocence has shifted to the accused. It appears to us to be
unexceptionable that whenever a person is brought to a hospital in an injured
state which indicates foul-play, the hospital authorities are enjoined to treat
it as a medico-legal case and inform the police. If the doctor, who has
attended the injured, is of the opinion that death is likely to ensue, it is
essential for him to immediately report the case to the police; any delay in
doing so will almost never be brooked. The police in turn should be alive to
the need to record a declaration/statement of the injured person, by pursuing a
procedure which would make the recording of it beyond the pale of doubt. This
is why an investigating officer (I.O.) is expected to alert the jurisdictional
Magistrate of the occurrence, who in turn should immediately examine the
injured. When this procedure is adopted, conditional on the certification
of a doctor that the injured is in a fit state to make a statement, a Dying
Declaration assumes incontrovertible evidentiary value. We cannot conceive of a
more important duty cast on the Magistrate, since the life & death of a
human being is of paramount importance. We think that only if it is impossible
for the Magistrate to personally perform this duty, should he depute another senior
official. Non-adherence to this procedure would needlessly and avoidably cast a
shadow on the recording of a Dying Declaration. The prosecution, therefore,
would be expected to prove that every step was diligently complied with. The
prosecution would have to produce the doctor or the medical authority to
establish that on the examination of the injured/deceased, the police had been
immediately informed. The I.O. who was so informed would then have to testify
that he alerted the Magistrate, on whose non- availability, some responsible
person was deputed for the purpose of recording the Dying Declaration. We are
not in any manner of doubt that where medical opinion is to the effect that a
person is facing death as a consequence of unnatural events, the responsibility
of the Magistrate to record the statement far outweighs any other
responsibility. There may be instances where there was no time to follow this
procedure, but that does not seem to be what has transpired in the case in
hand. In cases where some other person is stated to be recipient of a Dying Declaration,
doubts may reasonably arise.
12. Since the burden of proving
innocence beyond reasonable doubt shifts to the Accused in the case of a dowry
death, as it has in the present case, it was imperative for the defence to
prove the sequence of events which lead to the recording of the alleged Dying
Declaration by the Tehsildar DW1. This burden has not even been faintly
addressed. It appears that at the time of seeking bail the accused had
requested the Sessions Court to call for the alleged Dying Declaration. Keeping
in perspective that none of the Accused was present when the deceased was receiving
medical treatment in the hospital, or when the Dying Declaration was allegedly
recorded, or at the time of death, or even at the time of cremation, the manner
in which the Accused learnt of the existence of the Dying Declaration has not
been disclosed. The statement of the I.O. also does not clarify the position;
he has stated that he learnt of the existence of the Dying Declaration from the
relatives of the deceased. On the application of Sher Singh, the burden and
necessity of proving this sequence of events stood transferred to the shoulders
of the Accused since Section 304B the IPC had been attracted. The I.O. has
deposed that all the Accused, including the late father-in-law, Gorakh Nath,
had absconded after the incident. In fact, in the cross-examination, the I.O.
states that - "there is no reliable information about the Dying
Declaration... On keeping this information that the Dying Declaration of Vijay
Lakshmi was recorded by the Magistrate I did not consider any need of this
thing". Neither the Doctor DW2 who had allegedly certified that the
deceased was in a fit condition to make a statement nor the Tehsildar who had
allegedly written down the alleged Dying Declaration has stated the manner in
which the Tehsildar had been conscripted or located to perform this important recording.
The Dying Declaration appears to have mysteriously popped up and referred to at
the time of praying for bail. The chain or sequence of events which lead to its
recording remains undisclosed. In his statement, the Tehsildar has not
clarified the manner in which he happened to record the Dying Declaration and
the timing of its transmission to the Court. Since the onus of proof had shifted to the Accused, this alleged
sequence of events should have been proved beyond reasonable doubt by them. We may
emphasise that the Tehsildar as well as the Doctor who allegedly certified that
the deceased was in a fit state to make the Dying Declaration has been produced
by the defence. The Doctor should have spoken of the sequence of events in
which the Tehsildar came to record the Dying Declaration. The alleged
exculpating Dying Declaration is, therefore, shrouded in suspicion and we have
not been persuaded to accept that it is a genuine document. The defence has
failed to comply with Section 113B the Evidence Act. The Accused being charged
of the commission of a dowry death ought to have entered the witness box
themselves. The Accused were present on the scene at the time of the
occurrence, which turned out to be fatal, and that added to their
responsibility to give a credible version of their innocence in the dowry death.
13. Paniben v. State of Gujarat
(1992) 2 SCC 474, Mafabhai Nagarbhai Raval v. State of Gujarat(1992) 4 SCC 69,
Vithal v. State of Maharashtra (2006) 13 SCC 54, Amarsingh Munnasingh
Suryawanshi v. State of Maharashtra (2007) 15 SCC 455, Sher Singh v. State of
Punjab (2008) 4 SCC 265, Samadhan Dhudaka Koli v. State of Maharashtra (2008) 16
SCC 705 and Surinder Kumar v. State of Punjab (2012) 12 SCC 120, are
distinguishable on facts because in the case in hand we are not convinced of
the authenticity of the Dying Declaration; in contradiction to its form, or the
mental stability or lucidity of the deceased at the time when she allegedly
made the statement attributed to her.”
31. In light of the aforesaid judgment as the deceased was in a fit condition
to give dying declaration, their appears no justification in discarding the
dying declaration as prayed by learned counsel.
32. In the case of Mahadeo Narayan
More and Another Vs. State of Maharashtra reported in (2014) 16 SCC
573, the
apex Court in paragraphs No.6 to 9 has held as under:-
“6. The oral reporting made
by deceased Sushila which was reduced to writing, namely, Ext.41 is quite
consistent with her reporting of the previous day, namely, Ext.30 and the
subsequent dying declaration Ext.34 recorded by the Special Executive Magistrate.
In Ext.41, the relevant assertion was to the following effect:
"On
16.10.90 in the evening the two persons i.e. Jagdeo Narayan More and Mahadeo
Narayan More who are my real brothers-in-law, after consuming liquor made a demand
for money obtained from the sale of she goats and then they abused and
quarreled and thereafter they assaulted me and my husband with kicks and fists.
In this connection I have lodged report at Police Station Ural on 16.10.90 at
8.30 O'clock in the night.
Since morning, my above named Dir. And Jeth (i.e. Husband's
Younger brother and Husband's elder brother) abused, and quarreled with me and
my husband and these two together took out kerosene from the tin kept in my
house and poured the same on my person at about 4 O'clock. Husband's Younger
brother i.e. Jagdeo poured kerosene on my person while husband's elder brother
i.e. Mahadeo caught hold of me. Jagdeo set me on fire by lighting a match
stick. At that time I was alone in the house. On account of setting mke on
fire, I have sustained injuries on my both hands, back, backside seat portion
and on both legs."
The relevant statements in the dying declaration Ext.34
were as under:
"My brothers-in-law i.e. Jagdeo and Mahadeo took the kerosene
container from my house and then poured the same on my person and by lighting
the match stick they set me on fire. My saree on the person started
burning."
7. PW-1 Sukhdeo in his testimony deposed to the incident of the
previous day as well as the events on the fateful day. PW-7 Dr. Ravindra Kumar
Chaudhary at the beginning of recording Ext.34 had certified "patient
conscious and in a position to give dying declaration" and at the end of
said Ext.34 had also certified "DD recorded in my presence. Patient
conscious during DD". While in the box, the doctor categorically stated that he was present
when the dying declaration was recorded and that Sushila was conscious and fit
to make a statement. His deposition in that behalf was as follows:
"I went
to the Burn Ward along with him - i.e. Special Executive Magistrate. I examined
the patient by name Sushila Sukhdeo More aged 30 years and found her to be
conscious and fit for giving dying declaration. I certified it accordingly.
Her dying declaration was recorded by the Spl. Magistrate. I was present there when it was recorded. After its recording, again I examined her. I found her to be
conscious. I made endorsement to that effect on the declaration which was
reduced into writing the Ex. Magistrate. It is at Ex.34. I admit my signatures on it. When the statement was recorded, myself and the Ex. Magistrate were only there."
8. We have seen the original
record and the endorsements of the Doctor. The dying declaration Ext.34 thus
inspires complete confidence and we do not see any reason to doubt the veracity
thereof. Additionally the threat that Sushila would be set on fire was given
the previous day, as per Ext.30, recorded on the previous day. Having gone
through the record minutely we do not find any infirmity in the assessment made
by the High Court.
9. This appeal is, therefore,
dismissed. The appellants shall serve the sentence as awarded by the High
Court.”
33. In the aforesaid case,
Doctor has certified “patient conscious and in a position to give dying
declaration" and the apex Court has affirmed the conviction which was
passed based upon the dying declaration. In the present case also keeping in
view the dying declaration, the question of interference by this Court in
respect of conviction of the present appellant, does not arise.
34. The apex Court in the case
of Prem Kumar Gulati Vs. State of Haryana and Another reported in (2014) 14 SCC
646 has upheld
the conviction based upon the dying declaration alone, however, has held that
dying declaration should be subjected to close scrutiny and the Courts must be
satisfied that the dying declaration is truthful. Paragraphs No.13 and 14 of
the aforesaid judgment reads as under:-
“13. It is well settled that a truthful and reliable dying declaration
may form the sole basis of conviction even though it is not corroborated.
However, the reliability of declaration should be subjected to close scrutiny
and the courts must be satisfied that the declaration is truthful. In the case
of Godhu & Anr. vs. State of Rajasthan, (1975) 3 SCC 241, a three Judge
Bench of this Court has thoroughly discussed the evidentiary value and
reliability of dying declaration observed: (SCC p.247, para 16)
“16. We are
also unable to subscribe to the view that if a part of the dying declaration
has not been proved to be correct, it must necessarily result in the rejection
of the whole of the dying declaration. The rejection of a part of the dying
declaration would put the court on the guard and induce it to apply a rule of
caution. There may be cases wherein the part of the dying declaration which is
not found to be correct is so indissolubly linked with the other part of the
dying declaration that it is not possible to sever the two parts. In such an event
the court would well be justified in rejecting the whole of the dying
declaration. There may, however, be other cases wherein the two parts of a
dying declaration may be severable and the correctness of one part does not
depend upon the correctness of the other part. In the last mentioned cases the
court would not normally act upon a part of the dying declaration, the other
part of which has not been found to be true, unless the part relied upon is
corroborated in material particulars by the other evidence on record. If such other
evidence shows that part of the dying declaration relied upon is correct and
trustworthy the court can act upon that part of the dying declaration despite
the fact that another part of the dying declaration has not been proved to be
correct.”
14. In the case of K. Ramachandra Reddy vs. Public Prosecutor, (1976) 3 SCC 618, this
Court observed that: (SCC pp. 623-24, para 6)
“6. The accused pleaded innocence and averred that
they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends
entirely on the reliability of the dying declaration Ext. P- 2. The dying
declaration is undoubtedly admissible under Section 32 of the Evidence Act and
not being a statement on oath so that its truth could be tested by
cross-examination, the courts have to apply the strictest scrutiny and the closest
circumspection to the statement before acting upon it. While great solemnity
and sanctity is attached to the words of a dying man because a person on the verge
of death is not likely to tell lies or to concoct a case so as to implicate an
innocent person yet the court has to be on guard against the statement of the
deceased being a result of either tutoring, prompting or a product of his
imagination. The court must be satisfied that the deceased was in a fit state
of mind to make the statement after the deceased had a clear opportunity to observe
and identify his assailants and that he was making the statement without any
influence or rancour. Once the court is satisfied that the dying declaration is true and
voluntary it can be sufficient to found the conviction even without any further
corroboration. The law on the subject has been clearly and explicitly enunciated
by this Court in Khushal Rao v. State of Bombay, AIR 1958 SC 22, where the
Court observed as follows: (AIR pp. 28-29, paras 16-17)
'16. On a review of the
relevant provisions of the Evidence Act and of the decided cases in the different
High Courts in India and in this Court, we have come to the conclusion, in
agreement with the opinion of the Full Bench of the Madras High Court,
aforesaid, (1) that it cannot be laid down as an absolute rule of law that a
dying declaration cannot form the sole basis of convictiorn unless it is
corroborated; (2) that each case must be determined on its own facts keeping in
view the circumstances in which the dying declaration was made; (3) that it
cannot be laid down as a general proposition that a dying declaration is a
weaker kind of evidence than other pieces of evidence; (4) that a dying declaration
stands on the same footing as another piece of evidence and has to be judged in
the light of surrounding circumstances and with reference to[pic]the principles
governing the weighing of evidence; (5) that a dying declaration which has been
recorded by a competent Magistrate in the proper manner, that is to say, in the
form of questions and answers, and, as far as practicable, in the words of the maker
of the declaration, stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from all the infirmities of
human memory and human character, and (6) that in order to test the reliability
of a dying declaration, the court has to keep in view the circumstances like
the opportunity of the dying man for observation, for example, whether there
was sufficient light if the crime was committed at night, whether the capacity
of the man to remember the facts stated had not been impaired at the time he
was making the statement, by circumstances beyond his control; that the
statement has been consistent throughout if he had several opportunities of
making a dying declaration apart from the official record of it; and that the statement
had been made at the earliest opportunity and was not the result of tutoring by
interested parties.
17. Hence, in order to pass the test of reliability, a dying
declaration has to be subjected to a very close scrutiny, keeping in view the
fact that the statement has been made in the absence of the accused who had no
opportunity of testing the veracity of the statement by cross-examination.”
The
above observations made by this Court were fully endorsed by a Bench of five
Judges of this Court in Harbans Singh v. State of Punjab AIR 1962 SC 439 In a recent
decision of this Court in Tapinder Singh v. State of Punjab,(1970) 2 SCC 113, relying upon the earlier
decision referred to above, this Court observed as follows: [SCC p. 119, para
5]
'5. ...It is true that a dying declaration is not a deposition in court and
it is neither made on oath nor in the presence of the accused. It is, therefore,
not tested by cross-examination on behalf of the accused. But a dying
declaration is admitted in evidence by way of an exception to the general rule
against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve
to put the court on its guard while testing its reliability, by imposing on it
an obligation to closely scrutinise all the relevant attendant circumstances.”
In
Lallubhai Devchand
Shah v. State of Gujarat, (1971)3 SCC 767, this Court laid special stress on the fact that
one of the important tests of the reliability of a dying declaration is that
the person who recorded it must be satisfied that the deceased was in a fit
state of mind and observed as follows: [SCC p. 772 : SCC (CRI) p. 18, para 9]
'9.
... The Court, therefore, blamed Dr Pant for not questioning Trilok Singh with
a view to test whether Trilok Singh was in a ‘fit state of mind’ to make the
statement. The ‘fit state of mind’ referred to is in relation to the statement
that the dying man was making. In other words, what the case suggests is that
the person who records a dying declaration must be satisfied that the dying man
was making a conscious and voluntary statement with normal understanding...;' ”
35. In the case of Sunil Vs. State
of Maharashtra reported in (2017) 11 SCC 260 again it was a case of
bride burning and the apex Court in paragraphs No.7 to 10 has held as under:-
“7. The High Court, while
examining the dying declarations recorded by PW-2 Rameshwar Amnerkar and PW-6
Ashok Latare, relied on the decision rendered by a Division Bench of the High
Court in Deorao Sonbaji Bhalerao v. State MANU/MH/0554/2008 : 2008 (4) Mh. L.J.
(Crl.) 474 and arrived at the conclusion, that the above two statements could
not be taken into consideration, because neither PW-2 Rameshwar Amnerkar nor
PW-6 Ashok Latare, had reiterated during their deposition, the factual position
recorded at the behest of the deceased Nalu Sunil Potdukhe, in her dying
declaration.
8. We shall first endeavour to
deal with the veracity of determination rendered by the High Court on the basis
of the decision of the Division Bench of the High Court in Deorao Sonbaji
Bhalerao's case (supra). It is not necessary for us to delve into the matter at
any great length, in view of the fact that relied upon judgment was overruled
by a Full Bench of the High Court itself in Ramesh S/o. Gyanoba Kamble v. State
of Maharashtra MANU/MH/1547/2011 : 2011 (6) Mh. L.J. 927. The legal position,
expressed by the Full Bench of the High Court, was recorded as under:
In the
result, we are of the opinion that for proving a dying declaration recorded by
a person/Magistrate/ Executive Magistrate it is not essential requirement of law
that the recorder should repeat, while deposing before the Court, the contents
of the declaration in the words spoken by the deceased as to the cause of his death
or as to any of the circumstances of the transaction which resulted in his
death. In other words, the recorder of a dying declaration need not depose before
the Court, in the words spoken by the deceased, about the name/description, and
the act of the accused, which resulted in his death. Accordingly, the question referred
to this Full Bench is answered in negative.
We are satisfied in holding, that the conclusion which was drawn by
the Full Bench of the High Court in Ramesh S/o. Gyanoba Kamble's case (Supra),
after examining the issue at great length, and after taking note of a large
number of judgments rendered by the Supreme Court, is the correct legal
position, on the issue. In the above view of the matter, it was wholly
impermissible for the High Court to have overlooked, the two dying declarations
of the deceased Nalu Sunil Potdukhe, as had been recorded by PW-2 Rameshwar
Amnerkar and PW-6 Ashok Latare.
9. Having determined the
veracity of the three dying declarations made by the deceased Nalu Sunil
Potdukhe before PW-3 Akila Kayum, PW-2 Rameshwar Amnerkar and PW-6 Ashok
Latare, we are satisfied, that the same were sufficient to return a finding of guilt
against the Appellant, for having committed the murder of his wife Nalu Sunil
Potdukhe on 17.4.1991 between 8.00 p.m. and 8.30 p.m. Not only were the said
statements made to independent witnesses, but there is no reason to doubt the
veracity of any of the dying declarations. The first dying declaration made to
PW-3 Akila Kayum, cannot be doubted, because Akila Kayum was the daughter of
the landlord Firoz Musalman, in whose house the Appellant and his deceased wife
lived as tenants, in a single room tenement. She had no reason to record any
false statement as she has not been shown to be inimical to the Appellant, or
friendly with the deceased. Likewise, when the statement was recorded by PW-2
Rameshwar Amnerkar on 17.4.1991 at the General Hospital, Wardha, he was not
known to either the deceased or the Appellant. But most importantly, the dying
declaration recorded by PW-6 Ashok Latare - the then Naib
Tehsildar-cum-Executive Magistrate, was recorded in consonance with the
procedure and principles laid down, and also, by taking all precautions and
care that the same was not being made under any compulsion. In fact, the
deceased Nalu Sunil Potdukhe's statements were recorded by PW-2 Rameshwar
Amnerkar and PW-6 Ashok Latare, in the presence of PW-1 Dr. Sunil Mishra. The
two dying declarations, recorded by the PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare,
were recorded after ascertaining and determining the mental fitness of the
deceased Nalu Sunil Potdukhe.
10. We are satisfied, that the
guilt of the Appellant - Sunil, stands fully established on the basis of the
three dying declarations, made by the deceased Nalu Sunil Potdukhe, before
three completely independent prosecution witnesses. For the reasons recorded above,
we find no merits in this appeal, and the same is accordingly dismissed.”
The conviction based upon
the dying declaration was upheld by the apex Court.
36. In the case of Shama Vs. State
of Haryana reported in (2017) 11 SCC 535, the apex Court in
paragraphs No.26, 27 and 32 to 43 has held as under:-
“26. Perusal of the dying
declaration would go to show that firstly, it records specifically the names of
the three accused persons-Sube Singh and Shama (Appellant herein) and one fat person;
Secondly, it records the entire incident, how it happened and who fired the gun
shot on the injured; Thirdly, it bears the thumb impression of the injured;
Fourthly, it is signed by the person who recorded it in his handwriting
[Inspector, Mam Chand (PW-11)].
27. Having taken note of the
totality of the circumstances surrounding the incident in question which found
acceptance by the Courts below for convicting the Appellant along with two
coaccused, we find no good ground to reject the dying declaration of the
deceased. In our opinion, it was rightly made the basis for resting the
Appellant's conviction. It is apart from the fact that there is corroborative
piece of evidence also to prove the complicity of the Appellant in the crime in
question. This we say for the reasons mentioned infra.
32. Dying declaration made by
the deceased is admissible in evidence Under Section 32(1) of the Evidence Act,
1872. In the absence of any kind of infirmity or/and suspicious circumstances surrounding
its execution, once it is proved in evidence in accordance with law, it can be
relied on for convicting an accused even in the absence of corroborative
evidence but with a Rule of prudence that it should be so done with extreme
care and caution. (See-Panchdeo Singh v. State of Bihar, MANU/SC/0775/2001 : AIR
2002 SC 526)
33. One of the principles, which is always kept in mind, while examining
the dying declaration of the deceased is that "a man will not meet his
Maker with a lie in his mouth". As aptly said by Mathew Arnold in very old
English case [see-Lyre LCR in R v. Woodcock (1789) 1 Leach 500]-"Truth sits on the lips of a
dying man". This principle is deduced from a well known Latin legal maxim
"nemo moriturus praesumitur mentire".
34. We are not impressed by the
submission of learned Counsel for the Appellant when he urged that the dying
declaration is bad because it was recorded by the Inspector and not by any Magistrate.
35. In our considered opinion,
firstly, the law does not prescribe any format for recording dying declaration;
and secondly, it also does not prescribe any specific authority to record it
unless any special law or Rule is enacted to that effect. No such Rule was brought
to the notice of the Courts below and here also. On the other hand, we find
that perfect working and neatly structured dying declaration at times brings
about an adverse impression and creates suspicion in the mind of the Court
since the dying declaration need not be drawn with mathematical precision.
36. All that the law requires
is that the declarant should be in a fit state of mind and be able to recollect
the situation resulting in the available state of affairs in relation to the
incident and the Court should be satisfied that the reliance ought to be placed
thereon rather than distrust.
37. We have not been able to notice
any kind of illegality in recording the dying declaration by the Inspector as
urged by the learned Counsel for the Appellant. As observed supra, the concerned
Inspector before recording the statement had got the deceased medically
examined by the Doctor and it was only after the Doctor certified that the
deceased was in fit state of mind to speak, his dying declaration was recorded.
In the absence of any other suspicious circumstances surfacing the dying
declaration, it is not possible to discard the dying declaration only on this ground.
38. This takes us to the next
argument of learned Counsel for the Appellant. It was urged that since the
deceased died 10 days after the incident, his statement could have been
recorded by the Magistrate during this intervening period.
We find no merit in this submission. Once the statement of the deceased
had been recorded after taking due procedural care and pursuant to which the
police started the investigation and promptly arrested the Appellant herein on
13.10.1997, there was no need to record another statement of the deceased
during the intervening period of 10 days. It was neither a case of infirmity in
the prosecution case and nor was the requirement of law to do so.
40. There is yet another reason to uphold the Appellant's conviction.
As was rightly held by the two Courts below, Pyarelal (PW-3) was the eyewitness
to the incident. He knew all the three Appellants and also knew the family feud
going on between the two families due to marriage affair of their son/daughter.
He also knew that marriage issue was referred to the Panchayat wherein decision
was ultimately taken to dissolve the marriage. PW-3 witnessed the incident in
question as at the relevant time, he was passing through the road in search of
his buffalo and having noticed the incident identifying all the accused. His
statement was believed by the Trial Court and the High Court. Nothing was pointed
out from his evidence to discard his testimony. We have perused the evidence of
Pyarelal (PW-3) and find that it was rightly believed by the two Courts.
41. In the light of foregoing
discussion, we are of the view that none of the arguments though pressed in
service with force have any merit. We accordingly hold that the dying
declaration (Ex. PF/1) was properly recorded and was rightly relied on by the Courts
below for resting the Appellant's conviction. We also hold that it was
corroborated by the testimony of Pyarelal (PW-3), who proved the motive behind
the incident and also proved the incident in question by identifying the
accused.
42. Before parting, we record a
word of appreciation for Mr. Basava Prabhu Paul, learned senior Counsel, and Mr. Abhimanyu Bhandari,
learned Counsel, who on our request, appeared as amicus curiae for the
Appellant and argued the case ably with complete fairness.
43. In view of the foregoing
discussion, the appeal fails and is accordingly dismissed. As a consequence,
the bail granted to the Appellant-Shama, son of Hari Singh on 04.12.2009 is
cancelled. The Appellant be taken into custody to undergo the remaining period
of sentence awarded by the Sessions Court.”
37. The Hon'ble Justice A. M. Sapre, while elaborating the admissibility
of dying declaration has held that one of the principles, which is always kept
in mind, while examining the dying declaration of the deceased is that "a
man will not meet his Maker with a lie in his mouth"
38. In the considered
opinion of this Court, in light of the judgment referred above, by no stretch
of imagination, dying declaration of the deceased can be discarded as argued by
learned counsel.
In light of the aforesaid and keeping in view the dying declaration
and other corroborative evidence, this Court is of the opinion that the present
criminal appeal fails, liable to be dismissed and dismissed accordingly. The
judgment of conviction and sentence awarded by the learned Additional Sessions
Judge is hereby upheld.
Certified copy as per rules.