Badri Prasad vs State of M.P.

S.K. Gangele, J.—Appellants have preferred this criminal appeal challenging the impugned judgment of conviction and order of sentence dated 27th March, 2002 delivered by the Court of Second Additional Sessions Judge, Morena in Sessions Trial No. 284/2000, convicting appellant No. 1 Badri Prasad for an offence punishable under section 302 IPC and appellant No. 2 Shrimati Jamuna Devi for an offence under Section 302 read with section 34 IPC and sentencing both of them to undergo imprisonment for life with fine of Rs. 15,000/- each, in default, to further undergo three years rigorous imprisonment.

Appellants are the unfortunate parents who, in the evening of their life, have been tried for committing the murder of their own daughter-Asha (hereinafter, referred to as "deceased") by setting her on fire.

Undisputedly,the deceased was married daughter of the appellants who was married to one Rajesh of District Morena about 18 years ago. Her husband was unemployed, hence, owing to harassment met to her by her in-laws, she came to live with her parents (appellants).

Briefly stated, case of the prosecution is that the deceased caught fire in her parental house on 22/6/1999. Her brother Arvind Sharma (DW 1) took her to the Primary Health Centre, Pahadgarh around 6.10 pm on the same day for medical treatment. Since the deceased suffered extensive burns, she was referred by the doctor at Primary Health Centre to District Hospital, Morena where her MLC was performed. On the requisition of the Police, her dying declaration (Ex.P-7) was recorded on the same day at 11:10 pm by Naib Tahsildar -B.S. Kushwah (PW6) at District Hospital, Morena. Since the condition of the deceased was critical, the doctor at District Hospital, Morena further referred the deceased to JA Hospital, Gwalior for further medical treatment where she was admitted for medical treatment on 23/06/1999 at 2.15 am.

Medical Officer, District Hospital, Morena informed City Kotwali Police Station, Morena about the incident through Ex.P-8. The deceased was admitted to JA Hospital, Gwalior. However, the deceased succumbed to injuries on 30/06/1999 at 3:50 am at JA Hospital, Gwalior due to complications as a result of burn injuries.

On the basis of letter (ExP-14), FIR of the incident was lodged at police station Pahadgarh vide ExP-20. On lodging the FIR, criminal investigation was triggered and set into motion. The police reached the spot and prepared the spot map. Statements of the witnesses were recorded. The dead body of the deceased was sent for post mortem examination. The appellants- accused were arrested vide arrest memos Ex.P-21 and Ex.P-23. After completion of necessary formalities, Police filed challan before the committal Court, which in turn committed the case to the Court of Session for trial.

The trial Court on committal, framed charges against the appellants- accused for commission of offence under Section 302, 34 of IPC. The appellants- accused abjured their guilt and pleaded complete innocence. They pleaded that they had been falsely implicated in the case.

The prosecution, in support of its case, examined as many as fourteen witnesses and proved documents Ex.P-1 to Ex.P-34. The defence also examined one witness, namely, Arvind Krishan Swaroop Sharma as DW1 and proved documents Ex.D-1 to D-5 and Ex.C-1 (subsequent dying declaration of the deceased).

The trial Court after marshalling the evidence on record, came to hold that the appellants- accused have committed the offence for which they have been tried and convicted and sentenced them as indicated herein above. Hence, this appeal.

Shri Madhukar Kulshrestha, learned counsel for the appellants strenuously argued that the trial Court has committed grave error in passing the impugned judgment of conviction and sentence. There is no eye-witness to the incident and the case of the prosecution hinges only on the dying declaration of the deceased. He further argued that the trial Court fell in error in solely relying on the dying declaration of the deceased Ex.P-7 roping in the appellants and ignoring the subsequent dying declaration of the deceased, Ex.C-1. He further attacked the impugned judgment of trial Court on the ground that there was no occasion for the appellants to commit murder of their own daughter. It has further been argued by learned counsel that after recording dying declaration Ex.P-7, the Executive Magistrate recording dying declaration could not send it to the Judicial Magistrate at the earliest possible opportunity and he sent the dying declaration to the Chief Judicial Magisttrate on 01/07/1999 i. e. about eight days after the incident. He submitted that the prosecution has failed to explain the delay in sending the dying declaration to the Chief Judicial Magistrate and possibility of fabrication and false implication of the appellants in the offence could not be ruled out. He further attacked the case of the prosecution on the ground that the deceased was 35 years of age at the time of incident while her parents (appellants) i. e. father around 71 years and mother around 62 years of age and it could be impossible for them to have caught hold of their daughter and set her on fire and the deceased could not have offered any resistance. Further, the plea of alibi has been taken by appellant No. 2 Jamuna Devi while appellant No. 1 was sick and bedridden at the time of incident. He submitted that trial Court has ignored these aspects of the matter and passed the impugned judgment of conviction and order of sentence, which is liable to be set aside and the appellants are liable to be acquitted from the offence.

Per contra, Shri Prabal Solanki, learned Public Prosecutor for the respondent- State, argued in support of the impugned judgment of conviction by submitting that there is clinching evidence on record connecting the appellants with the offence in question. There was no one in the house except the present appellants at the time of commission of the offence. He further submitted that the trial court has passed a well reasoned judgment and has not committed any error in relying on the dying declaration Ex.P-7 and other evidence on record. He prayed that the appeal be dismissed maintaining the impugned judgment of conviction and sentence.

We have heard learned counsel for the parties and minutely perused the evidence on record. Having gone through the evidence on record, we are of the considered opinion that this appeal deserves to be allowed by setting the impugned judgment of conviction and sentence, for the reasons given herein under:-

Admittedly, there is no eye-witness to the incident and the entire case of prosecution rests upon the dying declaration Ex.P-7 coupled with the medical evidence. The trial court has not believed the subsequent dying declaration of the deceased Ex.C-1 on the ground that it was not recorded by any Executive Magistrate, nor the police personnel Viththal Das (PW 14) who recorded the dying declaration Ex.C-1 did make any efforts to get the dying declaration recorded by any gazetted officer or Magistrate.

Ex.P-7 is the first dying declaration of the deceased recorded by B.S. Kushwaha (PW 6) Executive Magistrate. It reads thus :-

Shri B.S. Kushwaha (PW 6) in his deposition, has deposed that on 22-06-1999 he was posted as Naib Tahsildar, an Executive Magistrate at Morena. He got requisition from the Town Inspector for recording the dying declaration. He recorded the dying declaration of the deceased and sealed it in a cover and sent it to the Chief Judicial Magistrate, Morena. He has deposed that he took every care in recording the dying declaration viz. certificate of the doctor in regard to mental state of patient to give statement before and after recording the dying declaration. This witness was subjected to grueling cross-examination. In para 16 of his cross-examination, he admitted that he kept the dying declaration in a pocket of his shirt. He sent the dying declaration to the CJM on 01/07/1999 vide Ex. P-7. He admitted in para 18 of his cross-examination that he did not remember the place where the dying declaration was laying between the period from 22/06/1999 to 01/07/1999. He also did not make any endorsement to the effect that the dying declaration was read over to the patient and found it correct. This witness could not offer any plausible explanation as to why he did not sent the dying declaration to the Chief Judicial Magistrate at an earlier point of time and why he kept it for considerable long time i. e. near about 7 days.

Dr. A.R. Khan (PW4) was posted on emergency duty at District Hospital, Morena. He medically examined the deceased on 22/06/199 at 10:00 pm. There were 90% burns all over the body of the deceased, i.e. back side of the neck, back side of head, complete chest etc. He certified on the dying declaration Ex.P/7 about the state of mind of deceased to give statement at the time of recording dying declaration.

Dr.P.L. Gupta (PW 12) conducted postmortem examination on the dead body of the deceased and proved the postmortem report Ex.P/29. He opined that the cause of death was cardiorespiratory failure as a result of burn and its complications.

Ex.C-1 is subsequent dying declaration of the deceased recorded by PW-14 Vithal Das. It reads thus:-

From perusal of said dying declaration Ex. C-1, it appears to be recorded in the form statement under Section 161 of CrPC. And became the dying declaration of the deceased consequent upon her death. In this dying declaration, the deceased has stated that while she was preparing tea, the strove extinguished. When she again tried to lit it, her cloths caught fire, as a result of which she sustained burn injuries. She further stated in Ex. C-1 that the earlier dying declaration given by her Ex. P-7 was in unconscious state of mind and now she is giving the statement in fully conscious state.

PW14-Vithal Das is Head Constable who recorded the dying declaration of the deceased Ex. C-1. He has deposed that on the oral instructions of in-charge Police Station Pahadgarh, he went to the hospital at Gwalior where the deceased was undergoing medical treatment for enquiry. He has deposed that he has recorded the statement of the deceased as what has been stated to him by the deceased. He was permitted to be cross-examined by the public prosecutor. He deposed that he had no information about the earlier dying declaration and the deceased herself told him that she had given a false dying declaration earlier and now she wants to give statement. He did not see the earlier dying declaration of the deceased. He further stated that since the deceased was talking, hence, he recorded her statement.

Hon''ble the Supreme Court in the case of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P., , has held as under in regard to evidentiary value of dying declaration after considering its earlier judgments.

There is a historical and a literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearian origin. In The Life ad Death of King John, Shakespeare had made Lord Melun utter "Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, lose the use of all deceit" and asked, "Why should I then be false, since it is true that I must died here and live hence by truth ?" William Shakespeare, The Life and Death of Kind John, Act 5, Scene 4, lines 22-29.

In passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including the weapon which injured the victim, nature and extent of injuries, victim''s physical condition his conduct, and what was said to and by him. This Court has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, hearsay exception is a mixed question of fact and law.

It s equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, the courts have to look for the medical opinion.

It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is though to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator.

There is a legal maxim "nemo moriturus praesumitur mentire" meaning, that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act state:

when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross-examination are dispensed with.

The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to Court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.

It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the makes was in a fit condition-mentally and physically-to make such statement.

In Paniben V. State of Gujarat this Court while stating that a dying declaration is entitled to great weight however cautioned to note that the accused has not power to cross-examination: (SCC pp.480-81, para 18)

18.--- 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, 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 assailants. 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:

(i) There is neither rule or law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja Vs. State of M.P)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P V. Ram Sagar Yadav; Ramawati Devi V. State of Bihar).

(iii) This 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 opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy V. Public Prosecutor)

(iv) Where dying declaration is suspicious it should not be acted upon

Without corroborative evidence. (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 (Kake Singh V. State of M.P)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (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. (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. (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 has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhua 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. (State of U.P V. Madan Mohan).

Hon''ble the Supreme Court has further held in regard to conviction that may be based solely on the basis of the dying declaration :

The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration-be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.

The principle of law that emerges from the above referred judgment of Hon''ble the Supreme Court is that the dying declaration must inspire confidence so as to make it safe to act upon. Apart from this, the evidence and material available on record must be properly weighed in each case to arrive at a proper conclusion.

The two dying declarations i. e. Ex.P-7 and Ex. C-1 are to be examined in the light of dictum of Supreme Court in the case of Nallapati Sivaiah (supra). If these two dying declarations vis-a-vis Ex.P-7 and Ex.C-1 are examined by keeping them juxta position, it is clear that Ex. P-7 raises every possible doubt about its authenticity, though it has been recorded by the Executive Magistrate after getting certificate of the doctor regarding fitness of the patient giving dying declaration. It remained with the Executive Magistrate for considerably long period, hence, possibility of its fabrication or manipulation could not be ruled out. On the other hand, subsequent dying declaration Ex.C-1 was recorded in due course in a form of statement under Section 161 of CrPC. It has also come in evidence that the deceased was exasperated due to unemployment of her husband and the behaviour of her in-laws, and which she came to her parental house and was living with her parents (appellants).

Arvind Krishan Swaroop Sharma (DW1) is one of the son of the appellants. He has deposed that they are five brothers and three sisters and all the brothers are living separately from the appellants. He has admitted that the deceased was mentally disturbed due to ill treatment met to her by her husband and her in-laws and as such she came to live with her parents. He deposed that the husband of the deceased was unemployed. He admitted that his wife used to assist the deceased financially. He has stated that on the date of incident the deceased was disturbed and when he asked the deceased to prepare tea, she at once rushed to her father''s house and after sometime the incident took place.

If the case of the prosecution is seen in the backdrop of the statement of Arvind Krishan Swaroop Sharma (DW1), it appears that the deceased was mentally disturbed due to harassment in the hands of her in-laws owing to financial hardship and in a fit of anger she might have tried to commit suicide or she caught fire accidentally. Appellant No. 1 was a retired Government servant and was carrying on his livelihood with great difficulty. It has also come in the statement that the appellants had given a considerable amount (Rs. 95,000/-) to one of his sons-in-law which he could not get back. When the appellants could lend a considerable amount to one of their sons-in-law, then how can they be expected to deprive their own daughter, particularly when she was facing great financial hardship and ill-behaviour from her in-laws including her husband and to commit her murder by setting her on fire. Thus, the story put forth by the prosecution does not appeal to the conscience of the Court.

Further, non-sending of the dying declaration of the deceased recorded by the Executive Magistrate to the Chief Judicial Magistrate well in time also creates a reasonable doubt in the mind of Court about its authenticity and trustworthiness. There was no occasion for the Executive Magistrate recording the dying declaration to have kept it with him for such a long time. The prosecution has also not tendered any plausible examination on this point. Hence, we are of the considered opinion, that non sending of the dying declaration to the Chief Judicial Magistrate in time is fatal to the prosecution and creates a reasonable doubt in the mind of the Court about its authenticity and the prosecution has failed to bring home the guilt of the appellants- accused beyond reasonable doubt. Thus, we are of the considered opinion, that the appellants are entitled for benefit of doubt.

Hon''ble the Supreme Court in a series of judgments has ruled that where there are two dying declarations and they are contradictory to each other, then benefit of doubt should go to the accused. [See:- Sanjay Vs. State of Maharashtra, ]

Taking a cumulative effect of the discussions made herein above, we allow the appeal, set aside the impugned judgment of conviction and order of sentence and acquit both the appellants from the offence.

The appellants are on bail, they need not surrender. Their bail bonds and surety bonds stand discharges. Amount of fine, if any, deposited shall be refunded to the appellants after due verification.