Chacko
Vs. State of Kerala [2002] Insc 491 (22 November 2002)
N.Santosh
Hegde & B.P.Singh. Santosh Hegde,J.
The
appellant in this case has been convicted by the Sessions Judge, Kollam, for an
offence punishable under Section 302 IPC for having committed the murder of his
mother Saramma on 28.7.1996 at about 10 a.m. at their house in Kottarakkara village by pouring kerosene on her and
setting her ablaze. It is the prosecution case that suspecting his mother would
give away her entire earnings to her 3 daughters to his exclusion, the
appellant committed this crime. It is the prosecution case that even though the
deceased was set afire while she was sitting in a chair at about 10 a.m.,
nobody witnessed the incident in question and it is only about 4.30 p.m. when
PW-2, the grand-daughter of the deceased, came to the house, she came to know
of the incident. The prosecution also alleges that by that time the concerned
Police had received an anonymous telephone call intimating of the incident in
question as having been caused by the deceased's son.
Registering
a case based on the said information in the general diary, the Police also came
to the house of the deceased and found her seriously burnt, hence, took her to Kottarakkara
hospital where PW-3, the doctor, gave her preliminary treatment and recorded
the wound certificate wherein he noted as he being told by the deceased that
the injury suffered by her was caused by her son. It is also the case of the
prosecution that the deceased made a dying declaration Ex. P-4 to PW-5 who
recorded the same and got the thumb impression of the deceased in which she
specifically stated that it was her son who caused the burn injuries to her
because of the fact that he suspected that the deceased would not given him a
share in her earnings.
Though
PW-3 is said to be present at the time of making of the dying declaration, he
has not either certified that the deceased was in a fit state of mind to make
the said declaration nor has he attested the said declaration.
Thereafter,
it is stated that PW-3 advised the Police to take the deceased to the Medical College Hospital at Trivandrum and when she was being so transferred, she died on the way
at about 7 p.m. on 28.7.1996. The courts below
relying on the said dying declaration Ex. P-4 accepted the prosecution case and
convicted the appellant, as stated above.
Mr. Ranjit
Kumar, learned senior counsel appearing for the appellant, assailed the dying
declaration Ex. P-4 as a document got-up subsequently by the prosecution,
hence, he contended that the same cannot be relied upon. In support of his
contention, he pointed out that the writings in Ex. P-4 are so managed so as to
fit the contents of the document into a sheet of paper on which a thumb
impression was already taken. He submitted that it is clear to naked eye that
this document was not prepared in the manner stated by the prosecution. He also
contended that the contents of the document which is so elaborate in
particulars also create a doubt whether a 70 year old lady who suffered more than
80% burn injuries on her body at about 10 a.m. could ever be able to make such
an elaborate statement as found in Ex. P-4 nearly 7 to 8 hours after the burn
injuries suffered by her. He also pointed out even though PW-5, the doctor, was
supposed to be present, according to the prosecution, at the time when this
statement was recorded, he has not chosen to either attest the said declaration
or to certify the medical condition of the deceased as to her capacity to make
such a statement.
He
also pointed out that if, as a matter of fact, deceased had made a statement as
recorded in Ex. P-4 then the same would have been clearly reflected at least to
the extent of the name of the accused in the inquest report prepared by PW-7 on
29.7.1996 at about 12.30 p.m. The fact that in the said inquest report the name
of the accused is not mentioned itself throws considerable doubt on the earlier
dying declaration which has named the accused on 28.7.1996 itself. Learned
counsel also pointed out that though the first information report was recorded
on 28.7.1996 at about 5 p.m. and the wound certificate was issued by PW-3 at
5.20 p.m. on 28.7.1996 itself and the dying declaration as per Ex. P-4 had come
into being by about 5.30 p.m. on 28.7.1996, it is surprising that the FIR
reached the Court of the Magistrate at Kottarakkara only at about 4 p.m. on
29.7.1996 which is situated in the very same town as the Police Station is
situated. In the above circumstances, the learned counsel pointed out that it
is unsafe to rely upon the dying declaration as the sole evidence to base a
conviction. Mr. Ramesh Babu, learned counsel appearing for the State contended
that there is absolutely no reason why Ex. P-4 should be discarded merely
because the writing in the said document is written in a particular manner.
Learned counsel pointed out, the fact of the deceased having suffered the
injury because of the act of the appellant is also noted in the wound
certificate issued by PW-3 who in his oral evidence also has spoken to the same
and also PW-5 the investigating officer who recorded the dying declaration in
evidence has confirmed the statement made by deceased as per Ex.P-4 which has
not been effectively challenged by the appellant, therefore, there is no reason
to discard the said evidence.
Having
heard learned counsel for the parties and perused the records, we find it
difficult to accept the prosecution case based on the dying declaration
allegedly made by the deceased. As pointed out by the learned counsel for the
appellant, it is very difficult to accept the prosecution case that the
deceased who was of about 70 years, and had suffered 80% burns could make a
detailed dying declaration after 8 to 9 hours of the burning giving minute
particulars as to the motive, the manner in which she suffered the injuries.
This, in our opinion, itself creates a doubt in our mind apart as to the
genuineness of the declaration [See : Munnu Raja & Anr. vs. State of Madhya Pradesh, (AIR 1976 SC 2199 para 6)].
Further in the absence of any certificate by a competent doctor as to the
mental and physical condition of the deceased to make such a dying declaration,
we think it is not safe to rely on the same. We are aware of the judicial
pronouncements of this Court that it is not always necessary that a dying declaration
should be certified by a doctor before reliance could be placed on the same.
But then in the absence of any such certificate, the courts should be satisfied
that from the material on record it is safe to place reliance on such
uncertified declaration.[See : Ram Bai vs. State of Chhattisgarh (2002 (8) SCC 83)].
In the
instant case it is not as if the doctor was not available. As a matter of fact,
PW-3 who treated the deceased in the first instance was available at the time
when the deceased allegedly made the dying declaration, still we find he has
not either given a certificate as to the condition of the deceased nor has he
attested the said document. That apart, a perusal of the dying declaration as
per Ex. P-4 shows that the contents of the documents are so arranged so as to
accommodate the space which is above the thumb impression which we think is not
a normal way of recording a statement if the same was genuine. This is also a
ground to suspect the genuineness of the document. Then again as complained by
the learned counsel for the appellant, we notice that on 28.7.1996 at about
5.30 p.m. the Police had known that it was the appellant who had committed this
crime but in the inquest report which was drawn on 29.7.1996 in Column No.12
corresponding to name of the suspect, it is specifically mentioned 'No' meaning
thereby the officer who drew this document did not have the knowledge that it
is the appellant who had caused the injury. This is the very same person (PW-5)
who has scribed Ex. P-4. The above factor coupled with the manner in which the
incident has been recorded in Ex. P-4 certainly creates a grave doubt in our
mind as to the genuineness of the dying declaration Ex. P-4. The fact that
PW-4, the doctor, had recorded that "patient conscious, talking" in
the wound certificate by itself would not in any manner further the prosecution
case as to the condition of the patient to make the dying declaration nor does
his oral evidence as also that of the investigating officer made in the court for
the first time would in any manner improve the prosecution case.
In
view of the fact that the courts below have solely relied on the dying
declaration Ex. P-4 without noticing the doubtful circumstances noted by us and
there being no other evidence in support of the prosecution case, we think it
unsafe to place reliance on the evidence adduced by the prosecution to base a
conviction.
In the
said view of the matter, this appeal succeeds, the judgments and conviction of
the courts below are set aside. The appeal is allowed. The appellant, if in
custody and not required in any other case, shall be released forthwith.
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