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State of Rajasthan Vs. Kishore [1996] INSC 323 (27 February 1996)

Ramaswamy, K.Ramaswamy, K.Ahmad Saghir S. (J) G.B. Pattanaik (J) K. Ramaswamy, J.:

CITATION: JT 1996 (2) 595 1996 SCALE (2)462



Leave granted.

Despite issuance of non-bailable warrant and attachment of the properties, Presence of the respondent could not be secured for executing the warrants as it was reported that his whereabouts were not known. Consequentially, as per the directions of the Court, the Legal Aid Committee assigned Shri S.K. Pasi to assist the Court as a counsel for the respondent. After hearing the counsel for the State and the respondent, we had reserved the judgment on January 30, 1996. However, on February 2, 1996, the respondent was brought and his counsel Shri Sushil Kumar Jain requested the Court to give an opportunity for hearing. Accordingly we heard the matter again. This case also indicates avoidance on the part of the people like the respondent to delay the disposal of the appeal in this Court. When the attempts were found to be unsuccessful, he made appearance in the Court which gave us an insight to adopt such appropriate procedure for securing presence for early disposal to avoid miscarriage of justice.

On June 21, 1984, PW. 6, Station House Officer, Sodala Police Station in Jaipur, Rajasthan State had received a telephonic message, recorded under Ex.P-22, that Guddi, the deceased was burnt of injuries and was admitted in the hospital. After its entry in the 6.D., he proceeded to the hospital and recorded her statement Ex.P-16, came back to the police station, issued the F.I.R. and set the investigation in motion. PW.8 took over the investigation, went to the deceased and recorded her statement Ex.P-19 under Section 161 of the Code of Criminal Procedure, [Cr.P.C.] and sent the requisition Ex.P7 to the Chief Judicial Magistrate, Jaipur to record her declaration. The latter directed PW.1, the Addl. Chief Judicial Magistrate by name Hari Singh Punia to proceed to the hospital and record the statement. Accordingly, PW.1 on receipt of the order at 9.45 p.m. proceeded to the hospital and reached the hospital at about 10.10 p.m. on June 21, 1984. He sent a nurse to get the doctor for his proceeding with the recording of her statement. He waited till 10.50 p.m. but no doctor turned up. Consequentially, he proceeded to record her statement by way of questions and answers under Ex.P-8. He put 8 questions in all. Relevant questions are: Question Nos.1, 2 and 3. They along with answers read as under:

"1. Question - What was the time of incident?

Answer - It was 2 O'Clock at day. After pouring kerosene oil, lit match-box.

2.Question - Who were present at your house at that time?

Answer - My mother - in - law, four sisters-in-law and my daughter Sisters-in-law are Suman, Guddi. Wanchuki, Sampat.

3.Question - How did you get burnt?

Answer - In the morning, my motherin-law poured kerosene oil on me but I did not get burnt. After this, my husband come for lunch at noon and my mother-in-law asked him to lit match-box on me. Then my husband after pouring kerosene oil on me, lit match-box and my husband came out of the house. My mother- in-law kept on watching." The other questions are not relevant for the purpose of this case; hence omitted. She died on June 22, 1984 due to 80 per cent burn injuries. The crime was covered under Section 302, Indian Penal Code [IPC]. PW.7, the doctor conducted autopsy and issued post-mortem certificate, Ex.P- 21. At the trail, prosecution had examined as many as 8 witnesses including PW.3 and PW.4, the immediate neighbours and PW.2, brother of the deceased to prove motive. PW.3 and PW.4 turned hostile. The Sessions Judge relied upon the three dying declarations and he has given primacy to the dying declaration recorded by the Judicial Magistrate under Ex.P-8 and held that the charge under Section 302, IPC was proved against the respondent and convicted him under Section 302 and sentenced him to undergo rigorous imprisonment for life. But he acquitted the deceased's mother-in-law, Pushpa.

The State did not file any appeal against the acquittal of the mother-in-lay. The respondent filed appeal in the High 'Court. The Division Bench of the High Court in Criminal appeal No.116 of 1986 by order dated May 13, 1988 has acquitted the respondent. Reasons in support thereof are that: the Judicial Magistrate had not recorded heir mental condition; he did not get any confirmation of the mental condition of the deceased before recording the declaration;

the articles seized at the scene of the offence were not sent for chemical examination; the hair of the deceased sent for chemical examination did not contain the smell of kerosene oil; doctors would normally be available in the ward; the Judicial Magistrate without waiting for the doctor and without obtaining from him proper certificate of the mental condition or the deceased, recorded Ex.P-8 declaration which would be highly irregular on the part of the Magistrate to record such statement; the deceased was under agony with 80 per cent of burn injuries. Therefore, the story set up by the prosecution is not genuine and is shrouded with doubts. The prosecution, therefore, has not proved the case beyond reasonable doubt. Accordingly, the Division Bench acquitted the respondent giving him the benefit of doubt.

It is contended for the State that the view taken by the High Court is unjustified on the facts of this case.

PW,1, the Judicial Magistrate waited for the doctor for 40 minutes near the deceased before recording the statement of the deceased, which has now turned out to be dying declaration, but no one had turned up. Therefore, he thought it expedient to proceed with recording the dying declaration. He put questions and elicited answers from the deceased. The answers given by her clearly indicate her mental condition. Therefore, the absence of certificate from the doctor does not cast any cloud on the correctness of the declaration by the deceased. They get corroboration from the F.I.R. Ex.P-16 and Section 161 statement, Ex.P-19 which consistently spoke of the offence committed by the respondent, The omission on the part of the investigation officer to have the seized clothes sent for chemical examination is a lapse on the part of the investigation officer but that does not cast any doubt on the prosecution case. In view of the evidence on record that after the deceased was burnt her clothes were changed and the burnt clothes were found under the Panchnama showed that evidence of offence was destroyed. In view of the doctor's evidence that she died due to 80 per cent burn injuries, the conclusion would be that the cause of the death was burns.

The omission to find kerosene oil smell on the hair sent for chemical examination also does not cast any doubt on the prosecution case. The statement of the deceased, Ex.P-8 is clear and unequivocal that the respondent had poured kerosene on her and set to fire and consequentially she sustained 80 per cent burn injuries and died due to shock.

The offence, therefore, of murder, has been made out. Though Pushpa, mother-in-law of the deceased was wrongly acquitted, the acquittal does not cast any doubt on the veracity of the declaration, Ex.P-8.

Shri Pasi, learned counsel with his through preparation has contended that the High Court was right in its conclusion that the prosecution has not proved the case beyond doubt. There is inconsistency in the timings mentioned in Ex.P-16, F.I.R. and Ex.P-8, dying declaration.

therefore, whereas under Ex.P-8, according to the deceased the occurrence had taken place at 2 p.m., as per Ex.P-16, the occurrence had taken place at about 5 p.m. and death must be only subsequent to 2 p.m. which might necessarily be due to accident or suicide. It is evident from these statements that the deceased made an attempt to rope in Pushpa, her mother-in-law attributing her unsuccessfully attempting to set the deceased on fire in the morning. It would be unlikely that the deceased might not have complained to the neighbors or escaped From the house.

Therefore, the possibility of the deceased setting herself to fire by pouring kerosene oil to commit suicide and falsely implicating the respondent and his mother cannot be ruled out, Obviously for that reason the seized clothes were not sent for chemical examination, The witnesses who came to the scene and spoke under Section 161 that the respondent prevented them to get into the room, had not supported the prosecution case which obviously is false. The Magistrate, before recording the statement, had not secured the presence of the duty doctor who would always be available in the hospital, to testify the mental condition of the deceased who had admittedly suffered 80 per cent burn injuries. No certificate even thereafter was appended by the doctor. It is, therefore, unlikely that the deceased would have given such a lengthy statement in the form of answers to 8 questions put to her in that agony. The High Court, therefore, was not prepared to accept the dying declarations. If the dying declaration are excluded there is no other evidence to establish the culpability of the respondent beyond reasonable doubt.

Shri S.K. Jain contended that in all the three dying declarations, the deceased attributed major role to her mother-in-law which was found by the Division Bench to be false and accordingly it acquitted the mother-in-law. In other words, part of the dying declarations was disbelieved by the courts. Consequently, it is difficult to place implicit reliance on the dying declarations of the deceased without any corroboration from independent evidence. S.M.S.

Hospital at Jaipur is a big hospital where hundreds of doctors including the doctor on medical jurisprudence would always be available but none were brought at the time PW.1 recorded the dying declaration, Ex.P-8. PW.1 admitted that he did not read the dying declaration after he had recorded the same. In none of the three dying declarations any motive was attributed to the respondent. PW.1 without any identification of the deceased had recorded the declaration in the hospital where several other persons similarly injured were admitted. There was no identification of the deceased when PW.1 had recorded the statement. The case sheet of the deceased from the hospital was not produced either to identify the deceased or to know the nature of the treatment given before PW.1 recorded the statement Ex.P-8.

The deceased was married to the respondent about 8-9 years ago and there was no previous ill-feelings or estrangement between the respondent and the deceased. The name of the respondent was not specifically mentioned in the first part of Ex.P-8, the statement. There is a considerable time lapse as mentioned by the deceased herself of different timings in her successive statements. The hair of the deceased sent for chemical examination did not emit smell of kerosene oil. The clothes belonging to the deceased seized by the police were not sent for chemical examination. These circumstances clearly indicate that there are strong suspicious features to disbelieve the prosecution case. It being a case of pure appreciation of evidence and the High Court having had gone into that question and recorded the findings, it would not be safe to reverse those findings.

From the evidence on record, the prosecution has established that the deceased died of 80 per cent burn injuries on June 22, 1984 and she sustained the same in the afternoon of June 21, 1984. The question, therefore, is: whether she died of suicide or homicide? There is no clinching evidence regarding the previous mental condition of the deceased to show any tendency to commit suicide. In view of the finding by the doctor under Ex.P 21, postmortem certificate that she died due to shock of 80 per cent burn injuries, if it is proved to have been committed by any one, indisputably it would be a murder punishable under Section 302, I.P.C.

The primary question, therefore, is: whether the prosecution has established the case against the respondent beyond reasonable doubt? The evidence in this case consists of three successive dying declarations of the deceased Guddi. She principally attributed the acts to the respondent, her husband, and abetment by her mother-in-law, Pushpa who stood acquitted. The question, therefore, is whether the dying declaration are reliable pieces of evidence? Section 32(1) of the Evidence Act brings an exception to the rule of hearsay evidence when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which result in the death, in cases in which the cause of the person's death comes into question. Therefore, under Section 32(1) of the Evidence Act, if the statement of Guddi as to the cause of her death is believable as a reliable peace of evidence, it would form basis to convict the accused-respondent. In Khushall Rao v. The State of Bombay [1958 SCR 552], this Court had held that it is not an absolute rule nor even a rule of prudence that has ripened to a rule of law that dying declaration to sustain the order of conviction, must be corroborated by other independent evidence. The rule of corroboration requires that the dying declaration be subjected to close scrutiny since the evidence is untested by cross-examination. The declaration must be accepted, unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable. Any evidence adduced fore this purpose can only detract from its value but does not affect its admissibility. The dying declaration, therefore, may be tested as any other piece of evidence. Once the court reaches the conclusion that the dying declaration is true, no question of corroboration arises. The dying declaration cannot be placed in the same category as evidence of an accomplice or a confession.

It is settled law by series of judgments of this Court that the dying declaration, 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, is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration vide Tarachand Damu Sutar v. The State of Maharashtra [(1962) 2 SCR 775]; Kusa & Ors. v. State of Orissa [(1980) 2 SCC 207> Meesala Raoji v. State of A.P. C ) 4 SCC 181]; Goverdhan Raoji Ghyare v.State of Maharshtra [(1993) Supp. 4 SCC 316] and Gangotri Singh v. State of U.P. [(1993) Supp. 1 SCC 327.

We have scanned the dying declaration recorded by the Magistrates PW.1 under Ex.P-8. Therein the first question put was to ascertain the time of occurrence the second question put was as to the place of occurrence and the persons present and the third question was as to who was responsible for causing the burns to her; the fourth question related to the participation of her sisters-in-law; the fifth question related to the persons who extinguished the fire; the sixth question was regarding her burnt clothes; seventh question related to the identification of the persons who brought her to the hospital; and the eighth question related to the previous hostility between herself, mother-in-law and her husband, i.e., the motive. The learned Judicial Magistrate put these questions and elicited answers given by her were written in her own language and translated English version is placed on record. These questions are not only germane but also absolutely relevant and pertinent to the cause of the occurrence and circumstances leading to the occurrence. The deceased had suffered 80 per cent burn injuries; yet her answers are coherent, clear and unequivocal. In his evidence PW.1 has stated that he reached the hospital at 10.10 p.m., went to the victim Guddi, sent the nurse to call the doctor and he waited till 10.50 p.m. for the doctor to turn up but no doctor had come. There is nothing intrinsic for the Magistrate to speak falsity against the inaction on the part of the doctor. It is also not uncommon that the deceased being a poor lady, no one was there to care to attend to her all the while. It is not uncommon that in the general hospital such a shabby treatment is meted out to the poor patients. Under these circumstances, having wasted for 40 minutes and finding that no doctor had turned up, he discharged the duty of recording the statement of the deceased. He did not record verbatim of what she has stated. He put questions and answers given by her were recorded in her own language.

A perusal of the answers clearly indicates and inspires us to believe that she was conscious and had given cogent, coherent and direct answers to the questions put by the Magistrate from which it could easily be inferred that she was in a mentally fit condition at that time to give the statement. Nothing has been elicited from the post mortem conducted by the doctor P.W.7 and no contra evidence was brought on record that the deceased was not in a mentally fit condition to give the statement either prior to PW.1's going to the hospital or thereafter. As a fact no one had attended on her. She was alone left in the bed. There was no occasion for anybody to induce her to make a false statement against her husband and mother-in-law, Admittedly, she had 80 per cent burn injuries and it is obvious that she was in expectation of her death due to burns. She would not have willingly excluded the real culprits and implicated falsely the innocent. As a fact, she did not make any attempt to implicate her sisters-in-law or father-in-law though their presence at the time of occurrence was spoken by her in the declaration. That would clearly indicate that she was not interested to falsely implicate anyone except the real culprits, viz., her husband and mother-in-law. PW.1 obtained her thumb impression on Ex.P-8. It is neither in evidence nor elicited from PW.7, the doctor or PW 1 that her fingers were burnt and she was not in a position to put her thumb impression. Therefore, no doubt can be cast on her capacity to give the statement or on her putting thumb impression on the statement under Ex.P-8. The declaration reflects the true state of affairs at the time of occurrence and her statement is a truthful version and is reliable one.

The tenor of reasoning by the High Court was solely directed to criticize the Magistrate, PW .1 which is uncalled for in the circumstance. Therefore, the High Court was not right in doubting Ex.P-8, dying declaration recorded by a Judicial Magistrate. It is seen that Ex P-16 is the F.I.R. Which reached the court at the earliest. It contained an elaborate statement given by Guddi, the deceased to PW.6, the S.H.O. The only variation between Ex.P-8 and Ex.P-16 is as regards the timing. It must be remembered that the deceased was an innocent illiterate poor lady and was not so much conscious of the time factor. It would be only approximate and could not be accurately described. The difference of the timings in this case is not of material consequence since, admittedly, she hall the burn injuries.

At what point of time the injuries were sustained would not be of material consequence. Even the witness PW.4 who turned hostile mentioned the presence of the respondent at the time of occurrence. Ex.P-19, Section 161 statement recorded by PW.8, the investigating officer is very simple and specific It is not as elaborate as the F.I.R. It is PW 8 that sent the requisition Ex.P-7 to the Chief Judicial Magistrate to record the statement of the deceased pursuant to which PW.1 had come and recorded the statement Ex.P-8. One important factor which cannot be lost sight of is that no one was present with the deceased at the time of recording Ex.P-8 to tutor her to give any false statement or to implicate falsely anyone. As a fact, all the three declarations are spontaneous. That would lend reliability to her declaration coupled with the brutally frank statement given by the deceased Guddi to PW.1 accusing only the respondent and her mother in-law which inspires us to believe that Ex.P-8 contains all grains of truth and is a reliable statement made by Guddi, the deceased in expectation of her death due to extensive 80 per cent burn injuries. Therefore, it would by itself form basis for conviction. If, at all, any corroboration is needed, Ex.P-16, FIR and Ex.P-19 would corroborate her evidence.

It is true as contended by Shri S.K. Jain that S.M.S. Hospital is a big institute but it is not uncommon that to a poor and lonely patient like the deceased, the doctor after attending on her and giving treatment had not turned up, in spite of PW.1's sending the nurse to bring the doctor. It is equally true that PW.1 admitted that he did not read out the statement again after recording the declaration of the deceased but the tenor of the questions put and answers given and recorded in her own language appears to have persuaded PW .1 to feel that there was no necessity to read once over the statement to the deceased. It is equally true that the bad case sheet in the hospital of the deceased was not produced. The nature of the treatment given to the deceased before PW.1 recorded the statement is not available on record but that lapse does not create any doubt on the capacity of the deceased or on her mental condition at the time of giving the statement. It is already seen that the statement of the deceased is clear, coherent and specific.

There is no inkling of any vacillation or doubt when the deceased had given answers to the questions put by PW.1. It is seen that to question No .2 though the deceased had mentioned the presence of the mother-in-law and sisters-in- law of the deceased, she did not mention the name of the husband the respondent but to the third question she had clearly put the nail of blame on the husband and mother-in- law. The omission to mention his name in question No.2 does not create any doubt since a major role was attributed only to the respondent. The omission to attribute motive to the respondent is not a material consequence since it was done at the instigation to his mother.

In the Meesala Ramakrishnan's case [supra], this Court had accepted the dying declaration on the basis of gestures not only as admissible but also possessing evidentially value. The statement was recorded by the Magistrate and a certificate of mental condition was appended by the doctor who had stated that the nods given by the deceased were effective and meaningful. So the dying declaration formed sole basis for conviction. In Ganpat Mahadeo Mane vs. State of Maharashtra [(1993) Supp. 2 SCC 242], there were three dying declarations regarding burning by the accused in bride burning case, viz., one recorded by the doctors another by police constable and the third by the Executive Magistrate and they were held sufficient to prove the offence and result in conviction. Though answers were not elicited by way of questions and answers and the declaration was recorded verbatim, the dying declaration were accepted to be truthful and as such they formed basis for conviction. In Govardhan Raoji Ghyare's case [supra], the minor discrepancy in two dying declarations by the deceased-bride was held to be not of material consequence. Both the declarations were similar in material particulars. The minor discrepancies were held to be inconsequential. The two dying declarations were accepted to be admissible to form the basis for conviction. In Jose & State of Kerala [(1994) Supp. 3 SCC 1], the dying declaration recorded by the doctor in the form of questions and answers was accepted by this Court.

Similarly the declaration recorded by the police officer in his own words by way of statement under Section 161, Cr.P.C. was held to corroborate the other statement. It also corroborated evidence of direct witnesses. It was held that dying declaration recorded by the doctor could not be discarded on the ground that there were two dying declarations with variations. In Gansotri Singh's case [supra], the dying declaration recorded by the Magistrate shortly after the occurrence was accepted in spite of bitter enmity between the accused and the deceased. In Kundula Bala Subrahmanyam & Anr, vs. State of Andhra Pradesh [(1993) 2 SCC 684], the dying declaration relating to the circumstances leading to the death was accepted being consistent with other evidence. In State of Maharashtra vs. Rajendra Garbad Patil [(1992) Supp. 3 SCC 55], the dying declaration recorded within an hour of the occurrence and made by the injured without being influenced by others was held reliable and conviction could be ordered on that basis alone.

It is true that Pushpa, mother of the accused- respondent was acquitted by the Sessions Court of the offence under Section 302 read with Sections 109 and 34, I.P.C. and the State did not file any appeal against the acquittal. The acquittal may be wrong but it does not cast any doubt on the veracity of the statement under Ex.P-8. The law does not make any distinction between the dying declaration in which one person is named and a dying declaration in which several persons are named as culprits.

The dying declaration may well be false when it implicated only one person while dying declaration implicating several persons may be true. If just one of the many persons is mentioned as culprit by a person claiming to be the witness in the evidence adduced before the court, the court has to take care to scrutinize the evidence and decide whether he has spoken falsely or has made a mistake about any of them, Therefore, when dying declaration mentions number of culprits that by itself is not suspect. As stated earlier it requires careful scrutiny of the declaration in the light of the facts and circumstances of each case, in particular if the accused did not have the opportunity to cross-examine the declarant. It is added duty of the court to subject the statement to careful scrutiny and if it is found to be credible and believable, mere fact that number of persons were named as culprit but were not at all charged or were acquitted, does not render the declaration suspect or untrustworthy. In Kuse's case [supra], in the dying declaration, apart from the accused, others also had been named as culprits but no charge-sheet was laid against them.

This Court had held that merely because some other persons, though named in the dying declaration, were not chargesheeted, would not by itself prove falsity of the declaration. It is, therefore, clear that though co-accused Pushpa was wrongly acquitted of the charge of murder, it does not cast any doubt on the veracity of the statement of the deceased under Ex.P-8 nor can it be suspect to act upon the self-same evidence against the respondent. Every suspicion is not a doubt. Only reasonable doubt gives benefit to the accused and not the doubt of a vacillating Judge.

It is equally true that the investigating officer PW.8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. It is seen from the Panchnama recovery of the incriminating material from the scene of offence that there was an attempt to screen the offence by destroying the evidence. Others were prevented from entering the room. That by itself indicates an attempt on the part of the accused to destroy the incriminating evidence and to prevent others from saving the life of the deceased. Therefore, the absence of smell of kerosene oil on the hair sent for chemical examination does not render the dying declaration of the deceased suspect nor would it become unbelievable. The High Court, therefore, has not considered the evidence in the proper and legal perspective but felt it doubtful like Doubting Thomas with vacillating mind to accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt.

The reasons, therefore, are clearly erroneous and unsustainable to a close and careful scrutiny and meticulous examination of the evidence and circumstances in the case.

The evidence proves the prosecution case beyond reasonable doubt that the respondent had poured kerosene oil on the deceased, lit the fire with match-stick causing 80 per cent burn injuries to the deceased which resulted in her death.

Thereby, the offence of murder punishable under Section 302, IPC has been established beyond reasonable doubt. The Sessions Court, therefore, rightly recorded the conviction under Section 302, IPC and sentenced him to undergo imprisonment for life.

The appeal is allowed. The order of acquittal of the High Court is set aside and that of the conviction and sentence by the Sessions Court is restored. The respondent who is presently consigned in Central Jail, Jaipur, as per our order dated February 2, 1996, should undergo rigorous imprisonment for life.

The appeal is accordingly allowed.


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