Bhajju @ Karan Singh Vs.
State of M.P.
[Criminal Appellate
Jurisdiction Criminal Appeal No.301 of 2008]
J U D G M E N T
Swatanter Kumar, J.
1.
The
present appeal is directed against the judgment of conviction and order of
sentence dated 9th February, 1998 passed by the Court of Sessions Judge, Tikamgarh
and affirmed by the High Court of Madhya Pradesh, Bench at Jabalpur, vide its judgment
dated 7th August, 2007.
2.
The
facts giving rise to the present appeal fall within a very narrow compass and
are being stated at the very outset. Bhajju @ Karan Singh, the appellant herein,
was married to Medabai, the deceased, and was living in Niwadi, District Tikamgarh,
Madhya Pradesh. Bhajju had doubts about the chastity of his wife and often used
to accuse her of having illicit relations with one Ramdas. According to the
appellant, she also had a lose temper and on one occasion, she had left their
one month old child on a platform and had gone to her parental house along with
her son, Harendra, aged about four years.
It is stated that he had
even reported this incident at the Police Station, Niwadi, on 2nd September,
1995. On the other hand, the prosecution has alleged that besides accusing the deceased
of having illicit relations, he used to ill-treat her and even question the paternity
of the children born out of the wedlock. In fact, on the evening before the
incident in question, he had beaten his wife with slipper. On 12th September,
1995, at about 7.00 a.m., when she was cleaning the kitchen, Bhajju poured
kerosene oil on her and set her ablaze with the help of a match stick. She raised
hue and cry. Ayub (PW3) and Pratap (PW2) from the neighbourhood reached the
spot.
They took her to the
hospital in the taxi where she was examined by Dr. Suresh Sharma (PW9), vide report
Exhibit 14. Dehati Nalishi, Exhibit P16 was recorded on the basis of which FIR Exhibit
P14 was recorded and a case was registered under Section 307 of the Indian Penal
Code, 1860 (IPC). She was admitted to the hospital and was found to be having
60 per cent burn injuries and her blouse was smelling of kerosene oil at that time.
Her dying declaration was recorded by the Executive Magistrate-cum- Tehsildar at
about 9.10 a.m. vide Exhibit P4. She succumbed to the burn injuries and died on
17th October, 1995. A case under Section 302 IPC was registered against the appellant-accused.
After registration of
the case, the Investigating Officer prepared the inquest report. Post mortem was
performed and the cause of death was opined to be extensive burn injuries. During
the investigation, statements of other witnesses including Pratap, Ayub and
Lakhanpal (PW-1) were recorded and the site plan was prepared. Certain items
were recovered from the site like broken bangles, match box, half burnt match sticks,
clothes of the deceased, kerosene oil container, etc. Based on the ocular and documentary
evidence, the Investigating Officer filed the charge- sheet before the court of
competent jurisdiction.
The appellant- accused
was committed to the Court of Sessions where he was tried. The appellant put up
the defence that because of her illicit relationship with Ramdas, their neighbor,
and her arrogant attitude, the deceased was a difficult person to live with. However,
on 12.9.1995, she accidentally caught fire and got burnt while she was
preparing the food. As a result, she died and the accused was innocent.
Disbelieving the
defence of the accused and forming an opinion that the prosecution has been able
to prove its case beyond reasonable doubt, the learned Sessions Judge convicted
the accused for the offence under Section 302 IPC and awarded him rigorous imprisonment
for life vide his judgment dated 9th February, 1998. This was challenged before
the High Court. The High Court affirmed the judgment of conviction and order of
sentence passed by the learned trial court and dismissed the appeal of the
appellant/accused, giving rise to the present appeal.
3.
Not
only the facts of this case but also the legal issues involved herein fall in a
narrow compass. It is for the reason that the incident in question is not disputed.
Pratab (PW-2), Ayub (PW-3) and Lakhanpal (PW-1) , who were later declared
hostile by the prosecution and subjected to cross-examination had stated that the
deceased had got burnt accidentally while she was cooking food.
They have denied any involvement
of the appellant/accused as well as the fact that the deceased had told them that
the appellant/accused had burnt her by pouring kerosene oil on her. Furthermore,
Exhibit D1 is the affidavit stated to have been sworn by the deceased on 30th September,
1995 while she died on 17th October, 1995. In this affidavit, which is the
backbone of the defence, a similar stand has been taken by the deceased,
Medabai. In this affidavit, it was stated that at the time of swearing-in of
the affidavit in the Medical College, she was more or less healthy in all
respects. The appellant/accused in his statement under Section 313 of the Criminal
Procedure Code, 1973 (for short `Cr.P.C.') has given the usual reply that he
knows nothing and that he was not present at his residence at the time of the
occurrence.
4.
Before
we comment upon this defence and the evidentiary value of Exhibit D1, it will
be appropriate to examine the case of the prosecution. The FIR, Ext P-17 itself
was registered on the basis of a statement made by the deceased referred as Dehati
Nalishi, Exhibit P-16, and a case was registered under Section 307 IPC. It is a
matter of common prudence that a person who had been burnt and was having 60
per cent burn injuries would not be able to go to the hospital on her own and somebody
must have taken her to the hospital. According to the prosecution, PW3 and PW2,
had reached the spot and had taken the deceased to the hospital.
Thus, they were the first
persons whom the deceased met and as per the case of the prosecution, she had
told them that Bhajju had poured kerosene on her and set her ablaze. At the hospital,
she was examined by Dr. Suresh Sharma, PW9, who in his statement had recorded that
he has examined the deceased and she had as many as 10 injuries on her body and
that some wounds on her body which were bleeding. According to the said 6 doctor,
these injuries could have been caused by a Kada or some sharp object.
The burn injuries
were found to be 60 per cent. The person was burnt with kerosene oil. Lower
parts of her body were burnt. Her left hand was burnt, right hand and arm were also
burnt. He further stated that the statement of the deceased was recorded by the
Tehsildar, on which she had put her thumb impression and that the dying declaration
also had been written by the doctor declaring that she was in full senses to make
the statement. In his cross-examination, this witness clearly stated that the blouse
that Medabai was wearing was smelling of kerosene oil. Thus, the doctor is a witness
to the dying declaration as well as to the condition and cause of death of the deceased.
5.
PW5,
Vijay Kumar is the Tehsildar who recorded the dying declaration of the
deceased. When he appeared as a witness, he admitted to having recorded the
dying declaration of the deceased, which bore his signatures at A to A of Exhibit
P4 and recording was in his hand-writing of what was stated by Medabai and that
he added or subtracted nothing from what she had stated. Nothing material could
be brought out during the lengthy cross- examination of this witness. Thus, the
dying declaration had been recorded by the competent officer of the executive, duly
attested by the doctor and the cross-examination of both these witnesses did not
bring out any legal or substantial infirmity in the dying declaration of the
deceased, which could render it inadmissible or unreliable.
6.
The
post mortem of the body of the deceased was performed by Dr. S.K. Khare, PW10, and
his report is Exhibit P15 which confirms the burn injuries and the death being due
to these injuries. There is evidence which clearly shows that she tried to fight
before she succumbed to the burn assault by the appellant/accused. In that process,
her bangles were broken which were recovered vide Exhibit P6 from the site and she
also suffered injuries which, as already noticed, were bleeding when she was
examined by Dr. Suresh Sharma, PW9.
Other recoveries were
also made from the site, which evidences that the occurrence took place in the manner
as stated by the deceased. It is a common behaviour that if a person is pouring
kerosene on herself then the maximum kerosene will be poured on the head, face
and upper parts of the body and lesser amount will reach the lower parts of the
body and clothes. Contrary to this, the lower half of the body of the deceased
had received more burn injuries than her upper part and, in fact, if one has to
even remotely believe that Exhibit D1 could be executed by her, then on the photograph
8 annexed to it, not even a single burn injury on her face and upper part of
the body is visible. If this photograph is of a date prior to the incident then
there was no occasion for the appellant/accused or the Oath Commissioner attesting
the affidavit to affix this photograph on this affidavit. This document, thus, appears
to have been created and is, thus, incapable of being relied upon by the Court.
7.
Besides
recording of Exhibit P4, two other statements of the deceased were also
recorded. Both of them were recorded by the Police Officers on different occasions.
Firstly, as already noted, Exhibit P16 was the statement recorded immediately after
the occurrence on 12th September, 1995, on the basis of which FIR, Ext. P-17, was
registered and thereafter Exhibit P18, the statement of the deceased under
Section 161 of the Cr. P.C. was recorded, that too, on 12th September, 1995. Exhibit
P16 and P18 may, by themselves, not carry much evidentiary value but they definitely
have the same version as was recorded by PW11, the Tehsildar in Exhibit P4, the
dying declaration, which is not only admissible in evidence but is reliable,
coherent and in conformity with the requirements of law.
8.
The
primary contention raised on behalf of the accused is 9 that the dying
declaration, Ex. P4 being the sole piece of evidence, cannot be relied upon by the
courts. There is no evidence corroborating Ex.P4. As such, the concurrent judgments
of conviction are unsustainable.
9.
Firstly,
we must notice that this is not a case where the dying declaration, Ex.P4, is the
only evidence against the appellant/accused or that whatever is stated in it,
is not partially or otherwise supported by other evidence given the fact that
there is no dispute to the occurrence in question, the statements of the doctor,
PW9 and the Investigating Officer, PW10 and the Exhibits including the site plan,
post-mortem report etc., which are admissible pieces of substantive evidence, fully
corroborate the dying declaration.
If the deceased had poured
kerosene oil on herself, then in the normal course;
a. there could not be
bleeding wounds on her body,
b. broken bangles could not
have been recovered from the site, in question and
c. she could not have suffered
injuries on her hands and arms.
All these factors
show struggle before death and this indication is further strengthened by the
fact that lower part of her body had suffered greater burn injury, than the
upper part. Had that been the case, then alone the case of the defence could be
considered by this Court, even as a remote probability. That certainly is not the
situation in the present case.
10.
The
law is very clear that if the dying declaration has been recorded in accordance
with law, is reliable and gives a cogent and possible explanation of the occurrence
of the events, then the dying declaration can certainly be relied upon by the Court
and could form the sole piece of evidence resulting in the conviction of the accused.
This Court has clearly stated the principle that Section 32 of the Indian
Evidence Act, 1872 (for short `the Act') is an exception to the general rule against
the admissibility of hearsay evidence. Clause (1) of Section 32 makes the
statement of the deceased admissible, which is generally described as a `dying declaration'.
The `dying declaration'
essentially means the statement made by a person as to the cause of his death
or as to the circumstances of the transaction resulting into his death. The admissibility
of the dying declaration is based on the principle that the sense of impending
death produces in a man's mind, the same feeling as that the conscientious and virtuous
man under oath. The dying declaration is admissible upon the consideration that
the declaration was made in extremity, when the maker is at the point of death and
when every hope of this world is gone, when every motive to file a false suit
is silenced in the mind and the person deposing is induced by the most powerful
considerations to speak the truth.
Once the Court is
satisfied that the declaration was true and voluntary, it undoubtedly can base its
conviction on the dying declaration, without requiring any further
corroboration. It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is corroborated
by other evidence.
11.
There
is a clear distinction between the principles governing the evaluation of a dying
declaration under the English law and the Indian law. Under the English law,
credence and relevancy of a dying declaration is only when the person making such
a statement is in hopeless condition and expecting an imminent death. So under the
English law, for its admissibility, the declaration should have been made when
in the actual danger of death and that the declarant should have had a full
apprehension that his death would ensue.
However, under the
Indian law, the dying declaration is relevant, whether the person who makes it was
or was not under expectation of death at the time of such declaration. The dying
declaration is admissible not only in the case of homicide but also in civil suits.
The admissibility of a dying declaration rests upon the principle of nemo meritorious
praesumuntur mentiri (a man will not meet his maker with a lie in his mouth).
12.
The
law is well-settled that a dying declaration is admissible in evidence and the admissibility
is founded on the principle of necessity. A dying declaration, if found reliable,
can form the basis of a conviction. A Court of facts is not excluded from
acting upon an uncorroborated dying declaration for finding conviction. The
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 light of the surrounding
circumstances and its weight determined by reference to the principle governing
the weighing of evidence.
If in a given case a particular
dying declaration suffers from any infirmity, either of its own or as disclosed
by the other evidence adduced in the case or the circumstances coming to its notice,
the Court may, as a rule of prudence, look for corroboration and if the
infirmities are such as would render a dying declaration so infirm that it pricks
the conscience of the Court, the same may be refused to be accepted as forming
basis of the conviction.
13.
Another
consideration that may weigh with the Court, of course with reference to the facts
of a given case, is whether the dying declaration has been able to bring a confidence
thereupon or not, is it trust-worthy or is merely an attempt to cover up the latches
of investigation. It must allure the satisfaction of the Court that reliance ought
to be placed thereon rather than distrust.
14.
In
regard to the above stated principles, we may refer to the judgments of this
Court in the cases of Ravikumar @ Kutti Ravi v. State of Tamil Nadu (2006) 9
SCC 240, Vikas and Others v. State of Maharashtra (2008) 2 SCC 516, Kishan Lal v.
State of Rajasthan (2000) 1 SCC 310, Laxmi (Smt.) v. Om Prakash & Ors. (2001)
6 SCC 118, Panchdeo Singh v. State of Bihar (2002) 1 SCC 577.
15.
In
the case of Jaishree Anant Khandekar v. State of Maharashtra (2009) 11 SCC 647,
discussing the contours of the American Law in relation to the `dying declaration'
and its applicability to the Indian law, this Court held as under: - "24. Apart
from an implicit faith in the intrinsic truthfulness of human character at the dying
moments of one's life, admissibility of dying declaration is also based on the
doctrine of necessity. In many cases victim is the only eyewitness to a crime
on him/her and in such situations exclusion of the dying declaration, on hearsay
principle, would tend to defeat the ends of justice.
25. American law on
dying declaration also proceeds on the twin postulates of certainty of death leading
to an intrinsic faith in truthfulness of human character and the necessity principle.
On certainty of death, the same strict test of English law has been applied in American
jurisprudence. The test has been variously expressed as "no hope of recovery",
"a settled expectation of death". The core concept is that the expectation
of death must be absolute and not susceptible to doubts and there should be no
chance of operation of worldly motives."
16.
It
will also be of some help to refer to the judgment of this Court in the case of
Muthu Kutty and Another v. State by Inspector of Police, T.N., (2005) 9 SCC 113
where the Court, in paragraph 15, held as under:- "15. Though a dying declaration
is entitled to great weight, it is worthwhile to note that the accused has no power
of cross-examination. Such a power is essential for eliciting the truth as an
obligation of oath could be. This is the reason the court also insists that the
dying declaration should be of such a nature as to inspire full confidence of
the court in its correctness. The court has to be on guard that the statement
of the deceased was not as a result of either tutoring, or prompting or a product
of imagination.
The court must be further
satisfied that the deceased was in a fit state of mind after a clear opportunity
to observe and identify the assailant. Once the court is satisfied that the declaration
was true and voluntary, undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of conviction unless it is corroborated.
The rule requiring corroboration is merely a rule of prudence. This Court has laid
down in several judgments the principles governing dying declaration, which
could be summed up as under as indicated in Paniben v. State of Gujarat [(1992)
2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817] (SCC pp. 480-81, paras
18-19)
i.
There
is neither rule of law nor of prudence that dying declaration cannot be acted upon
without corroboration. (See Munnu Raja v. State of M.P.)
ii.
If
the Court is satisfied that the dying declaration is 15 true and voluntary it
can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar
Yadav and Ramawati Devi v. State of Bihar.)
iii.
The
Court has to scrutinise the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants and was in a fit state
to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor)
iv.
Where
dying declaration is suspicious, it should not be acted upon without
corroborative evidence. (See Rasheed Beg v. State of M.P.)
v.
Where
the deceased was unconscious and could never make any dying declaration the evidence
with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
vi.
A
dying declaration which suffers from infirmity cannot form the basis of conviction.
(See Ram Manorath v. State of U.P.)
vii.
Merely
because a dying declaration does not contain the details as to the occurrence,
it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati
Naidu.)
viii.
Equally,
merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar.)
ix.
Normally
the Court in order to satisfy whether deceased was in a fit mental condition to
make the dying declaration look up to the medical opinion. But where the eyewitness
said that the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of
M.P.)
x.
Where
the prosecution version differs from the version as given in the dying declaration,
the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)
xi.
Where
there are more than one statement in the nature of dying declaration, one first
in point of time must be preferred. Of course, if the plurality of dying declaration
could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal
Gangaram Gehani v. State of Maharashtra.)"
17.
Learned
counsel for the parties have relied upon the judgments in the case of Ravikumar
@ Kutti Ravi (supra), Kishan Lal (supra); Laxmi (Smt.) (supra),; Panchdeo Singh
(supra). These judgments do not set any other principle than what we have already
spelt above. The first attempt of the court has to be, to rely upon the dying declaration,
whether corroborated or not, unless it suffers from certain infirmities, is not
voluntary and has been produced to overcome the latches in the investigation of
the case. There has to be a very serious doubt or infirmity in the dying declaration
for the courts to not rely upon the same. Of course, if it falls in that class of
cases, we have no doubt in our minds that the dying declaration cannot form the
sole basis of conviction. However, that is not the case here.
18.
Then,
it was also vehemently argued that the two main witnesses PW2 and PW3 as well as
the brother of the deceased PW4, had turned hostile and, therefore, the case of
the prosecution has no legs to stand, much less that they have proved their
case beyond any reasonable doubt. This submission looks to be attractive at the
first glance but when examined in depth, is without any merit.
Firstly, there is no witness
to the dying declaration who has turned hostile. None of the witnesses, i.e. PW2
to PW4, were witnesses to or were even remotely involved in the recording of
the three different dying declarations, i.e. Ex.P4, P16 and P18. Reliance by
the learned counsel appearing for the appellant/accused upon the judgment of
this Court in the case of Munnu Raja and Another v. The State of Madhya Pradesh
(1976) 3 SCC 104 to contend that a dying declaration cannot be corroborated by
the testimony of hostile witnesses is hardly of any help.
As already noticed,
none of the witnesses or the authorities involved in the recording of the dying
declaration had turned hostile. On the contrary, they have fully supported the
case of the prosecution and have, beyond reasonable doubt, proved that the dying
declaration is reliable, truthful and was voluntarily made by the deceased. We
may also notice that this very judgment relied upon by the accused itself
clearly says that the dying declaration can be acted upon without corroboration
and can be made the basis of conviction. Paragraph 6 of the said judgment reads
as under:-
"6......It is well
settled that though a dying declaration must be approached with caution for the
reason that the maker of the statement cannot be subject to cross- examination,
there is neither a rule of law nor a rule of prudence which has hardened into a
rule of law that a dying declaration cannot be acted upon unless it is corroborated
(see Khushal Rao v. State of Bombay). The High Court, it is true, has held that
the evidence of the two eyewitnesses corroborated the dying declarations but it
did not come to the conclusion that the dying declarations suffered from any infirmity
by reason of which it was necessary to look out for corroboration."
19.
Now,
we shall discuss the effect of hostile witnesses as well as the worth of the defence
put forward on behalf of the appellant/accused. Normally, when a witness
deposes contrary to the stand of the prosecution and his own statement recorded
under Section 161 of the Cr.P.C., the prosecutor, with the permission of the
Court, can pray to the Court for declaring that witness hostile and for granting
leave to cross-examine the said witness.
If such a permission is
granted by the Court then the witness is subjected to cross-examination by the prosecutor
as well as an opportunity is provided to the defence to cross-examine such
witnesses, if he so desires. In other words, there is a limited examination-in-chief,
cross-examination by the prosecutor and 19 cross-examination by the counsel for
the accused.
It is admissible to use
the examination-in-chief as well as the cross-examination of the said witness in
so far as it supports the case of the prosecution. It is settled law that the
evidence of hostile witnesses can also be relied upon by the prosecution to the
extent to which it supports the prosecution version of the incident. The
evidence of such witnesses cannot be treated as washed off the records, it remains
admissible in trial and there is no legal bar to base the conviction of the
accused upon such testimony, if corroborated by other reliable evidence. Section
154 of the Act enables the Court, in its discretion, to permit the person, who
calls a witness, to put any question to him which might be put in cross-examination
by the adverse party.
The view that the
evidence of the witness who has been called and cross-examined by the party
with the leave of the court, cannot be believed or disbelieved in part and has
to be excluded altogether, is not the correct exposition of law. The Courts may
rely upon so much of the testimony which supports the case of the prosecution
and is corroborated by other evidence.
It is also now a settled
cannon of criminal jurisprudence that the part which has been allowed to be cross-examined
can also be relied upon by the prosecution. These principles have been encompassed
in the judgments of this Court in the cases : a. Koli Lakhmanbhai Chanabhai v. State
of Gujarat (1999) 8 SCC 624 b. Prithi v. State of Haryana (2010) 8 SCC 536 c. Sidhartha
Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 d. Ramkrushna v. State
of Maharashtra (2007) 13 SCC 525
20.
PW2
and PW3 were the persons who had met the deceased first after she was put on
fire. They were not the eye-witnesses to the occurrence. It is an admitted case
that they were the first persons to meet the deceased after she suffered the
burn injuries and had taken her to the hospital. This was their consistent version
when stated before the police and even before the court. Contrary to their statement
made to the Investigating Agency, in the Court, they made a statement that the
deceased had told them that she had caught fire by chimney and her burn injuries
were accidental.
This was totally
contrary to their version given to the police where they had stated that she
had told them that Bhajju had poured kerosene on her and put her on fire. To the
extent that their earlier version is consistent with the story of the prosecution,
it can safely be relied upon by the prosecution and court. The later part of their
statement, in cross-examination done either by the accused or by the
prosecution, would not be of any advantage to the case of the prosecution. However,
the accused may refer thereto. But the court will always have to take a very
cautious decision while referring to the statements of such witnesses who turn hostile
or go back from their earlier statements recorded, particularly, under Section 164
of the Cr.P.C. What value should be attached and how much reliance can be placed
on such statement is a matter to be examined by the Courts with reference to
the facts of a given case.
21.
PW4,
brother of the deceased, is another witness who has made an attempt to help the
accused. He stated that Medabai had died and Bhajju was his brother-in-law and she
got burnt while cooking food and that Medabai had told him that Bhajju used to keep
her nicely. Firstly, we must notice that all these witnesses who had turned hostile
or attempted to support the accused are the neighbours or close relations of the
deceased and also that of the appellant/accused.
Their somersault
appears to be founded on the consideration of saving a relation from receiving punishment
at the hands of justice. They appear to have lied before this Court, more out of
sympathy for the appellant/accused. The very opening part of the statement of PW4,
where he says "Medabai mari ja chuki hai" and "Medabai ko khana pakate
samay aag lagi thi" is sufficient indicator of his 22 sympathy and the
fact that his sister has already died and that he would not like to lose his brother-in-law
and secondly, that it is also not clear from his statement as to who told him
that Medabai had caught fire while cooking.
22.
These
are matters of serious consequences and render the statement of all these three
witnesses unreliable and undependable. Thus, these statements we would refer and
rely (examination-in-chief) only to the extent they support the case of the prosecution
and are duly corroborated, not only by other witnesses but even by the dying declaration
and the medical evidence.
23.
Coming
to the credibility of the defence witnesses, we have already noticed that Ex.D1
is a document created by the defence just to escape the punishment under law. If
that is what the deceased wanted to say, she had a number of opportunities to
say so, freely and voluntarily. However, in presence of the Tehsildar and twice
in presence of the Police, she made the same statement implicating her husband Bhajju
of pouring kerosene oil on her and putting her on fire. Where was the necessity
of typing an affidavit and getting the same thumb-marked by the deceased when
she was suffering 60% burn injuries.
If the version given
in this affidavit was true, we see no reason why the deceased should have
stated before the police and the Tehsildar what she did. The two defence
witnesses, namely Prabhat Kumar Sharma, DW1 and Laxmi Prasad Yadav, DW2, were
examined by the defence to prove its innocence. DW1, the Notary Public, does
not state as to where, when and at whose instance the affidavit was typed. This
witness has completely failed to explain as to why the photograph of the deceased
was fixed on the affidavit. If it was the requirement of law, then why the
photograph of a date prior to the date on which the affidavit was sworn and
attested, was affixed on the affidavit.
This witness also
admitted in his cross-examination that he knew that the affidavit was being sworn
for belying a statement made earlier, but he made no enquiries from the
deceased or from any other proper quarters to find out what was the previous
statement of the deceased. It will not be safe for the Court to rely on the statement
of this witness. DW2, is the person who had typed the affidavit, Ex.D1. He knew
Medabai.
According to this
witness, the contents were typed on the basis of what Medabai had stated. There
are contradictions between the statements of DW1 and DW2. We do not think that
these witnesses are reliable and their statements are trustworthy. We would
expect a Notary Public to maintain better professional standards rather than act
at the behest of a particular party.
24.
For
these reasons, we find no ground to interfere in the concurrent judgments of conviction
and order of sentence. The appeal is without merit and is dismissed
accordingly.
.................................J.
[A.K. Patnaik]
.................................J.
[Swatanter Kumar]
New
Delhi;
March
15, 2012
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