Dayal Singh Vs. State of Maharashtra [2007] Insc 506 (3 May 2007)
G.P. Mathur & A.K. Mathur
G. P. MATHUR, J.
1. This appeal, by special leave, has been preferred against the judgment
and order dated 28.1.2005 of Bombay High Court (Aurangabad Bench), by which the
appeal filed by the appellant Dayal Singh was dismissed and his conviction
under Section 498-A and 302 IPC and sentence of six months R.I. and
imprisonment for life respectively, as recorded by the learned Second
Additional Sessions Judge, Nanded, by the judgment and order dated 23.3.1990,
were affirmed.
2. The case of the prosecution, in brief, is that the deceased Tejinder
Kaur, daughter of the complainant PW.1 Chamanbai, was married to the appellant
five or six years prior to the incident and she had two daughters, Pritpal and
Sharanpal. The appellant started ill- treating Tejinder Kaur right from the
beginning and used to pressurize her to bring money from her parents. About
four months prior to the incident, which took place on 22.3.1989, the appellant
took Tejinder Kaur to her mother's house, who also resided in Nanded, and after
making a demand of Rs.5,000/- he came back alone leaving his wife there. On the
next day, he went to the house of his mother-in-law Chamanbai with a naked
sword in his hand and asked Tejinder Kuar to accompany him and also bring
Rs.5,000/-. The money could not be paid by the mother of the deceased. It is
alleged that after Tejinder Kaur came back to her husband's house, she sent
some letters to her mother through a milk vendor complaining about
ill-treatment being meted out to her. At about 3.00 p.m. on 22.3.1989,
Chamanbai received information that Tejinder Kaur had received burn injuries
and she was admitted in the Civil Hospital. She immediately rushed to the
hospital and on enquiry Tejinder Kaur disclosed that she was set ablaze by the
accused by pouring kerosene on her person. Chamanbai along with her son Sher
Singh went to Police Station Wazirabad, where an FIR of the incident was lodged
at 6.30 p.m. P.S.I. Murkute visited the house of the appellant at 7.00 p.m. on
22.3.1989 which consisted of only one room and seized half burnt sari,
petticoat, woolen blanket, mattresses, quilt, pillow, etc. He found two sunmics
cots partially burnt, a stove, a kerosene tin and an empty gas cylinder.
He then visited the hospital and instructed Head Constable PW.10 Dattatray
Vinkar to record the statement of Tejinder Kaur when she regained
consciousness. Tejinder Kaur regained consciousness at about 10.30 p.m., information regarding which was given by her brother PW.4 Sher Singh to Head Constable
Dattatray Vinkar. The Head Constable immediately summoned PW.9 Dr. Mohammad
Khursheed Ahmad, Duty Medical Officer, who examined the injured and found her
conscious. Thereafter, the statement of Tejinder Kaur was recorded by PW.10
where she gave details of the occurrence, namely, demand of dowry by the
appellant and how the appellant had set her on fire by pouring kerosene. The
statement Ex.31 was recorded by PW.10 and Dr. Khursheed Ahmad made an
endorsement thereon that the patient was conscious throughout her statement. At
about 00.45 hours on 23.3.1989 Tejinder Kaur succumbed to her injuries. After
inquest had been held, the body was sent for post mortem examination, which was
carried out by two doctors who found 83% burns thereon. According to the
opinion of the doctors, the death was due to the extensive burns which caused
hypovolenic and neurogenic shock leading to cardio- respiratory failure. The
seized clothes were sent for medical examination and the report thereof
indicated presence of kerosene.
3. After completion of the investigation, charge-sheet was submitted against
the appellant under Section 498-A and 302 IPC.
The appellant pleaded not guilty and claimed to be tried. His main defence
was that he had never made any demand for money and in fact he had deposited
some money in the account of Tejinder Kaur and had also purchased land in her
name. He further stated in his statement which was given in writing that
Tejinder Kaur caught fire when she was cooking food on stove and at that time
he was not present in the house. He also stated that after coming to know about
the fire, he rushed inside the house and tried to extinguish the fire, in which
process he also received burn injuries and he remained admitted in the hospital
for treatment till 8.4.1989. The learned Sessions Judge believed the case of
the prosecution which primarily rested on the dying declaration recorded by
PW.10 and convicted and sentenced the appellant, as stated above. The High
Court affirmed the findings recorded by the learned Sessions Judge and
dismissed the appeal.
4. The present appeal has been filed under Article 136 of the Constitution.
It is well settled that in an appeal under Article 136 of the Constitution, the
Court will normally not enter into reappraisal or the review of evidence unless
the trial Court or the High Court is shown to have committed an error of law or
procedure and the conclusions arrived at are perverse. The Court may interfere
where on proved facts, wrong inference of law are shown to have been drawn.
(See Ramanbhai Naranbhai Patel v. State of Gujarat (2000) 1 SCC 358 and Chandra
Bihari Gautam v. State of Bihar (2002) 9 SCC 208). We will, therefore, briefly
refer to the evidence in order to examine whether the case comes within the
parameters of Article 136 of the Constitution which may warrant interference by
this Court.
5. PW.1 Chamanbai (mother of the deceased) has deposed that the marriage of
Tejinder Kaur was performed with the appellant Dayal Singh about six years
prior to the incident. After her marriage, she started living with the
appellant at Gurdwara Gate No.2, Nanded.
Initially, the parents, brothers and sisters of the appellant were all
residing together but some time thereafter, the appellant started living
separately. The appellant used to ill-treat Tejinder Kaur and used to ask her
to bring money from her parents. Whenever Tejinder Kaur visited her parental
home, she used to complain about the ill-treatment being meted out to her.
About 4 months prior to the incident, the appellant came along with Tejinder
Kaur to her parental house and demanded Rs.5,000/- from his mother-in-law. He
held out a threat that Tejinder Kaur should not return until she brought
Rs.5,000/-.
Next day at about 8.00 p.m. he came armed with a sword and threatened
Tejinder Kaur that he would kill her if the amount was not given. She has
further deposed that she begged the accused not to behave in that manner as she
had no money. Thereafter the appellant took Tejinder Kaur along with him and
went away on his motor cycle.
She also produced two letters which were allegedly sent by the deceased to
her through a milk vendor. Regarding the main incident, she deposed that at
about 3.00 p.m. on 22.3.1989 one Biru Singh came and informed that Tejinder
Kaur had received burn injuries and was in the hospital. She immediately rushed
to the Civil Hospital and saw Tejinder Kaur admitted in the ward. On enquiry
she informed her mother that her husband Dayal Singh had set her on fire by
pouring kerosene on her body. After learning about the incident, the witness
along with her son Sher Singh went to the Police Station Wazirabad and lodged
an FIR of the incident. She has further deposed that some time after she had
returned, Tejinder Kaur regained consciousness.
Head Constable Dattatray Vinkar then asked the family members to leave the
ward and thereafter statement of Tejinder Kaur was recorded. Though she was
subjected to a lengthy cross-examination, but she stuck to her statement that
the appellant used to make demand of money and used to threaten Tejinder Kaur
and she was afraid of him. PW.4 Sher Singh is brother of Tejinder Kaur. He has
corroborated the statement of his mother Chamanbai regarding the ill- treatment
being meted out by the appellant to his sister and the demand of money and the
earlier incident when the appellant had come armed with a sword and had given
threats when the money was not paid to him. He has further deposed that at
about 10.00-10.30 p.m. Tejinder Kaur regained consciousness and disclosed to
him and his mother that the accused had sprinkled kerosene on her and had set
her on fire. He has also deposed that when the Head Constable had called the
doctor for recording the statement of the victim, he and other relations were
asked to leave the ward.
6. PW.2 Dr. Sanjay has deposed that he is M.S. in General Surgery and was
posted in Civil Hospital, Nanded, as a Duty Medical Officer on 22.3.1989. He
had admitted Tejinder Kaur in the hospital in Ward No.4 and at that time she
was conscious. PW.10 Head Constable Dattatray Vinkar has deposed that he was
posted on duty in the hospital from 8.00 p.m. on 22.3.1989 till 8.00 a.m. on the next day. At about 10.30 p.m. he received orders from P.S.I. Murkute to
record statement of Tejinder Kaur. He, therefore, went to Ward No.4 where
Tejinder Kaur was admitted and after finding her in a conscious state, he went
to Dr. Khursheed Ahmad, Duty Medical Officer, and requested him to come and
examine the victim as her statement had to be recorded. Dr. Khursheed Ahmad
then examined the victim and informed him that she was conscious and he could
record her statement. The witness has further deposed that he put questions to
Tejinder Kaur to which she gave replies in Marathi, which he recorded in his
own hand. In her statement (Ex.31) Tejinder Kaur stated that her marriage with
the appellant had taken place 5 years back. At 2.00 p.m. on that day i.e.
22.3.1989 there was a quarrel between her and her husband on account of domestic
reasons, namely, about visiting her mother's house and she was asked to bring
money from her mother. The appellant then tore her blouse and sari and tried to
drag her out of the house. She protested and said that she will not leave the
house. At that stage, the appellant poured kerosene upon her and set her on
fire by lighting a match stick. When she caught fire, she cried for help, on
which her mother-in-law and neighbours came there and extinguished the fire by
pouring water. Her daughter Sharanpal, who was sitting near her, had also
sustained some burns and was taken outside by the appellant. She further stated
that as she was wearing a polyester sari, she immediately caught fire and
sustained burns in her chest, abdomen, legs and private parts. Her father-in-law
brought her to the hospital for treatment. The statement was thumb marked by
the victim. Thereafter, Dr. Khursheed Ahmad made an endorsement on the same and
put his signatures thereon.
The witness has categorically deposed that whatever was stated by Tejinder
Kaur was recorded in her own words. In his cross- examination, he stated that
the information had earlier been sent to Special Judicial Magistrate for
recording statement of the victim.
The recording of the statement commenced at 22.50 hours on 22.3.1989 and it
took about 15-20 minutes.
7. PW.9 Dr. Mohammad Khursheed Ahmad has deposed that he is MBBS & MD
and was posted as Medical Officer in SGGM Hospital, Nanded for the past four
years. He was on duty on 22.3.1989 when he was called to Ward No.4. He examined
Tejinder Kaur at about 11.00 p.m. and found that she was conscious and was in a
position to give her statement. The Head Constable then recorded her statement
and he was throughout present by her side. After the statement had been recorded,
he put an endorsement on the same to the effect "Patient is conscious
throughout statement". He had put his signature below that endorsement. In
his cross-examination he has reiterated that he had examined Tejinder Kaur and
had a talk with her and after being satisfied that she was conscious, he asked
the Head Constable to record her statement. He was subjected to a fairly
lengthy cross- examination but nothing has come out which may discredit his
testimony.
8. The statements of PW.1 Chamanbai who is the mother and PW.4 Sher Singh
who is the brother of the deceased, conclusively establish the fact that the
appellant was ill-treating the deceased Tejinder Kaur as his demand for
bringing money from her parental home had not been fulfilled. These witnesses
have also deposed that Tejinder Kaur gave a statement when she was admitted in
the hospital that it was the appellant who had poured kerosene upon her and had
set her on fire. A formal dying declaration of Tejinder Kaur was recorded by
PW.10 Dattatray Vinkar, Head Constable in the presence of PW.9 Dr. Khursheed
Ahmad who was the Duty Medical Officer in the hospital. Dr. Khursheed Ahmad is
a highly qualified person being MBBS and MD and was posted in the Civil Hospital,
Nanded, and his duty hours were from 8.00 p.m. on 22.3.1989 to 8.00 a.m. on the following day. He has clearly deposed that he had examined the victim and
had talked to her and she was conscious throughout when her statement was being
recorded by PW.10. There is absolutely no reason to cast any doubt on the
testimony of PW.10 Dattatray Vinkar and PW.9 Dr. Md. Khursheed Ahmad. Both are
government servants and they did not at all know the appellant Dayal Singh and
had absolutely no reason to fabricate a document, viz., the dying declaration to
falsely implicate him in a murder case.
9. Shri M.N. Rao, learned senior counsel for the appellant, has submitted
that the original dying declaration is in Marathi language and Tejinder Kaur
being a sikh lady, she could not have made a statement in the said language as
in normal course of events, she would have spoken in Gurmukhi. The evidence
shows that even the parents of Tejinder Kaur were residing in Nanded which is
in Maharashtra and is a Marathi speaking area. After marriage she continued to
live in the said place, viz., Nanded. It has come in the statement of her
brother PW.4 Sher Singh that Tejinder Kaur had studied upto 10th class in a
Marathi medium school. Having lived in Nanded and having studied upto 10th
class in a Marathi medium school, there is nothing abnormal in Tejinder Kaur
giving her statement in Marathi language. That apart, the fact that she gave a
statement Ex.31 has not only been deposed to by PW.10 Dattatray Vinkar, Head
Constable, but also by PW.9 Dr. Khursheed Ahmad who is highly qualified and
responsible government servant. There is thus absolutely no reason to doubt the
authenticity of the dying declaration.
10. Shri Rao, learned senior counsel, has next submitted that the dying
declaration has not been recorded by a Magistrate but by a Head Constable and,
therefore, it will not be safe to rely upon the same. He has also challenged
the dying declaration on the ground that the same was not recorded in a
question-answer form but has been recorded in the form of a narrative.
11. The law regarding the dying declaration and the value which is to be
attached to it has been examined in considerable detail in State of Karnataka
v. Shariff (2003) 2 SCC 473, by a Bench of which one of us was a member and
paragraphs 18, 19, 20, 22 and 23 of the decision are being reproduced below :-
18. The earliest case in which the law on the point of dying declaration was
considered in detail by this Court is Khushal Rao v. State of Bombay AIR 1958
SC 22.
The Court ruled that it cannot be laid down as an absolute rule of law that
a dying declaration cannot form the sole basis of conviction unless it is
corroborated; each case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made;
it cannot be laid down as a general proposition that a dying declaration is
a weaker kind of evidence than other pieces of evidence; 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 the principles
governing the weighing of evidence. It has been further held that 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. But once the Court has come to the
conclusion that the dying declaration was the truthful version as to the
circumstances of the death and the assailants of the victim, there is no
question of further corroboration.
19. In State of Uttar Pradesh v. Ram Sagar Yadav (1985) 1 SCC 552 the Court
speaking through Chandrachud, C.J. held as under:
"It is well settled that, as a matter of law, a dying declaration can
be acted upon without corroboration. See Khushal Rao v. State of Bombay AIR
1958 SC 22; Harbans Singh v. State of Punjab AIR 1962 SC 439; Gopalsingh v.
State of M.P. 1972(3) SCC 268. There is not even a rule of prudence which has
hardened into a rule of law that a dying declaration cannot be acted upon
unless it is corroborated. The primary effort of the Court has to be to find
out whether the dying declaration is true. If it is, no question of
corroboration arises. It is only if the circumstances surrounding the dying
declaration are not clear or convincing that the Court may, for its assurance,
look for corroboration to the dying declaration....."
20. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor (1976) 3 SCC 618
it was held that a 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. It was further held that
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. In Pothakamuri Srinivasulu v. State of AP (2002) 6
SCC 399 it has been held that if the deceased made statement to the witnesses
and their testimony is found to be reliable the same is enough to sustain the
conviction of the accused. In Mafabhai Nagarbhai Raval v. State of Gujarat
(1992) 4 SCC 69 it was held that the Doctor who has examined the victim was the
most competent witness to speak about her condition.
22. The other reason given by the High Court is that the dying declaration
was not in question-answer form. Very often the deceased is merely asked as to
how the incident took place and the statement is recorded in a narrative form.
In fact such a statement is more natural and gives the version of the incident
as it has been perceived by the victim. The question whether a dying
declaration which has not been recorded in question-answer form can be accepted
in evidence or not has been considered by this Court on several occasions. In
Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517, it was held as
follows:
"It cannot be said that unless the dying declaration is in question
answer form, it could not be accepted. Having regard to the sanctity attached
to a dying declaration as it comes from the mouth of a dying person though,
unlike the principle of English law he need not be under apprehension of death,
it should be in the actual words of the maker of the declaration. Generally,
the dying declaration ought to be recorded in the form of questions and answers
but if a dying declaration is not elaborate but consists of only a few
sentences and is in the actual words of the maker the mere fact that it is not
in question-answer form cannot be a ground against its acceptability or
reliability. The mental condition of the maker of the declaration, alertness of
mind, memory and understanding of what he is saying, are matters which can be
observed by any person. But to lend assurance to those factors having regard to
the importance of the dying declaration, the certificate of a medically trained
person is insisted upon...."
23. In Padmaben Shamalbhai Patel v. State of Gujarat (1991) 1 SCC 744 it was
held that the failure on the part of the medical men to record the statement of
the deceased in question-and-answer form cannot in any manner affect the
probative value to be attached to their evidence. This view was reiterated in
State of Rajasthan v. Bhup Ram (1997) 10 SCC 675 and Jai Prakash and Ors. v.
State of Haryana (1998) 7 SCC 284.
12. In Kulwant Singh v. State of Punjab (2004) 9 SCC 257 it has been held
that it is not essential that a dying declaration should be made only before a
Magistrate. Section 32 of the Evidence Act nowhere states that the dying
declaration must be recorded in the presence of a Magistrate or in other words
any statement which has not been recorded before the Magistrate cannot be
treated to be dying declaration. In Vidhya Devi v. State of Haryana (2004) 9
SCC 476 challenge to a dying declaration recorded by a police officer in the
presence of doctor, who had given an opinion that the deceased was in a fit
state of mind to make the statement, was held to be credible and reliable and
sufficient to establish the guilt of the accused.
13. PW.10 Head Constable Dattatray Vinkar has deposed that information was
sent to the Magistrate. The date of incident viz.
22.3.1989 was "Holi" and being an occasion of festivity it is
possible that the Magistrate may not have been present at his residence or the
information may not have been conveyed to him personally. We do not find any
ground on which the dying declaration recorded by PW.10 which contains a
certificate by PW.9 Dr. Khursheed Ahmad which adds to its authenticity should
be discarded or should not be acted upon.
14. Mr. Rao has next submitted that Investigating Officer did not record the
statements of PW-9 Dr. Mohammad Khursheed Ahmad and PW-10 Dattatray Vinkar
under section 161 Cr.P.C. during the course of investigation and, therefore,
their testimony should not be relied upon. In support of his submission he has
relied upon certain observations made in Ram Lakhan Singh and others vs. State
of Uttar Pradesh (1977) 3 SCC 268. It may be noticed that PW-9 and PW-10 are
not witnesses of actual occurrence, namely, the pouring of kerosene by the
appellant on Tejinder Kaur and setting her on fire.
They are witnesses of recording of dying declaration and the certificate
given by the doctor regarding the mental condition of the victim. It is not the
case of the appellant that dying declaration was not immediately sent to the
court of concerned magistrate or that its copy was not given to him in
accordance with section 207 Cr.P.C.
before the commitment of the case. In such circumstances the mere fact that
the Investigating Officer did not record the statement of the aforesaid two
witnesses under section 161 Cr.P.C. can hardly have any bearing. In Tilkeshwar
Singh and others vs. The State of Bihar AIR 1956 SC 238 statements of three
witnesses were jointly recorded by the Investigating Officer in violation of
section 161(3) Cr.P.C. It was contended that the evidence of the said three
witnesses in court was inadmissible as there was no record of their statement
under section 161 Cr.P.C. The contention was repelled and it was held that
while the failure to comply with the requirements of section 161(3) Cr.P.C.
might affect the weight to be attached to the evidence of the witnesses, it
does not render it inadmissible. In the facts and circumstances of the present
case we are of the opinion that the testimony of PW-9 and PW-10 cannot be
discarded on the ground urged by the learned counsel for the appellant and the
trial court and the High Court rightly relied upon their statement which was
given in court.
15. We have given out careful consideration to the material on record. We
are fully satisfied that the charge against the appellant is fully established
from the evidence on record and there is absolutely no ground to take a
different view from what has been taken by the learned Sessions Judge and also
by the High Court.
16. In the result, the appeal fails and is hereby dismissed.
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