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Judgment
Arunachalam, J.—Ekambaram, Petitioner herein is the father of deceased Prema. He was examined as P.W. 11 in Sessions case No. 202 of 1990, on the file of the Principal Asst. Sessions Judge Chengalpattu P.W. 11 has another daughter elder to the deceased and she is Mrs. Kumari, examined as P.W.4 The first Respondent Vedachalam is the husband of deceased Prema, he having married her on 16-10-1988. Second Respondent Selvi is the sister of first Respondent and third Respondent Janaki is the mother of Respondents 1 and 2. Respondents 1 to 3 were charged u/s 498A, I.P.C. and u/s 306, I.P.C. in the aforesaid stated session''s case. They were so charged because, on 14-5-1990 at or about 9.50 a.m. deceased Prema allegedly committed suicide as a consequence of cruelty inflicted on her by these three Respondents. She allegedly poured kerosene over herself and set herself ablaze by using a match stick at her residence in Chengalpattu at 9.50 a.m. on 14.5.1990 and ultimately breathed her last at 10.45 a.m. on 15.5.90 at Government Medical College Hospital Chengalpattu. On conclusion of trial during the course of which 12 witnesses were examined by the prosecution and Exs.P-1 to P-14 were marked apart from production of material objects 1 to 5 Learned trial judge, on the basis of his assessment of evidence found that the prosecution had not established the guilt of Respondents 1 to 3 beyond reasonable doubt and in that view directed their acquittal. The judgment of the learned trial judge will further indicate mat he was not satisfied with Ex.P.2 the dying declaration recorded from the deceased by P.W.1 Natarajan then judicial Magistrate No. 1 Chengalpattu. He has assigned some reasons for the same. Learned trial Judge has further commented upon the long delay in setting the law in motion which obviously was done only after the death of the deceased. In other words the first information report was registered admittedly 26 hours after crime commission.
Needless to state that this prosecution was initiated on a final report laid by the 4th Respondent, Inspector of Police, Chengalpattu Town Police station on the basis of Ex.P.2 Dying Declaration recorded by the Magistrate which was obtained by the investigating officer and made the foundation of this prosecution.
Even at the outset it must be stated that the State which had initiated the prosecution has not chosen to challenge the correctness of the verdict of acquittal recorded against Respondents 1 to 3.
Facts in brief may have to be stated to appreciate to the contentions urged by counsel on either side. The death of the deceased does appear gruesome but the cause for such death may have to be audited with great care. It must be further assessed to find out if the evidence brought on record would show cruelty contemplated under Explanation to Section 498-A I.P.C. This cruelty, if established, will have and link with Section 306 I.P.C. to consider about the role of Respondents to in having abetted commission of suicide by Prema.
The prosecution put forth a definite case that since Prema was issueless, Respondents 2 and 3 induced the first Respondent to abuse his wife and her parents and. also snatch away her thali (mangalasutra) which resulted in extreme grief to the deceased who, unable to bear such cruelty decided to put an end of her life by setting herself ablaze. P.W. 11 Ekambaram, father of the deceased was a resident Gokulpuram in Chengalpattu Town. Soon after the marriage, Respondents 2 and 3 arranged for separate living of the first Respondent and his wife at Tambaram. In the past Prema had complained to her father that her husband was in the habit of scolding arid beating her. The deceased had also informed P.W.2 about such treatment for, during certain period, P.W.2 was the landlord of the house in which these spouses resided. It appears that after sometime the first Respondent and the deceased shifted to Gokulapuram in Chengalpattu to reside in a house belonging to P.W.11 Even in that house there were bickering between the husband and the wife probably because the father in law of the first Respondent was the owner of the house. Thereafter in Chengalpattu P.W. 11 helped his daughter and son-in-law to find accommodation for their living in the upstairs portion of the house of P.W.2, P.W.3 Ghandhimathi is the daughter of P.W.2 and she was also aware of the unhappiness between Prema and her husband when they were living in a portion of a house belonging to her father. P.W.3 was aware of the first Respondent beating his wife. P.W.2 also advised the first Respondent not to be aggressive. Admittedly 15 days prior to the death of the deceased she had gone over to her parental house. She chose to return to her matrimonial home at or about 8.00 or 9.00 a.m. on 14-5-90, the occurrence morning. At or about 9.45 a.m. P.W.2 and 3 heard the hue and cry of the first Respondent shouting "Please help there is danger" when they came out and saw they noticed all the windows in the house of the first Respondent closed. As far as the entrance doors were concerned, one was open, while the other was closed. P.W.3 noticed flames above the head of Prema inside her house. P.W.3 questioned Prema as to why she had hastened to commit this unbecoming act. The reply was that she was fed up with life and did not desire to live any more. The first Respondent himself was restless. He fetched an auto rickshaw and escorted his injured wife to government Medical College Hospital. Chengalpattu. P.W.4 the elder sister of the deceased on information reached the Hospital on the same afternoon. When she questioned her sister, who according to her was conscious, she stated that her husband was insisting on her living with him in Tambaram on the instigation of his sister and mother, to which course she was not willing, since there will be lack of protection. She appears to have further told her that since the first Respondent insisted that they should live at Tambaram, she deemed it fit to immolate herself. P.W.5 Dr. Asaraf, examined injured Prema at 10.40 am. on 14-5-90. He found on her extensive burns. She was brought to him by the first Respondent herein. It appears from his evidence that the husband of the victim had brought her alleging that there was a fire accident. P.W.5 has deposed that when he examined the victim she was conscious She was able to answer questions. Ex.P.3 is the copy of the accident register. He forwarded accident intimation Ex.P.4. to the concerned police station as well as a message to the Judicial Magistrate Chengalpattu to record the dying declaration of the victim. P.W.5 claims to have been present when the dying declaration was recorded and to affirm the same he has pointed out his signature. Ex.P.5. in Ex.P.2, the dying declaration recorded by the Magistrate. Soon after his examination of die victim, P.W.5 sent her to the Emergency ward for treatment.
P.W.6 Dr. Adhi, thenceforth took care of the victim. It is die evidence of P.W.6 that when he examined injured Prema at or about 10:45 a.m. on 14.5.1990 she was conscious .
However her pulse could not be felt. She had 90 per cent extensive burns. It was this doctor who treated the victim till she died on the next morning at 10:30 a.m. he claims to have forwarded Ex.P.1 to die Magistrate for recording of dying declaration. As P.W.5 has claimed P.W.6 also would have it that he was present when P.W.1 the Magistrate recorded the dying declaration from Prema. Through him, Ex.P.6 the case sheet stood marked. It was P.W.8 Dr. Sundararaurthi who conducted autopsy and issued Ex.P.9 postmortem certificate P.W. 12 Shajahan, Inspector of Police took up investigation and ultimately laid the final report before the concerned Magistrate, resulting in the instant prosecution.
The case of Respondents 1 to 3 before the learned trial Judge was one of denial, as far as the offences alleged against them. They did admit marriage between the first Respondent and Prema on 16.10.1988. In unison, they stated, that this prosecution was the outcome of inducement by the parents of Prema with an ulterior motive. The first Respondent would have it, that it was he who had taken his injured wife to the Hospital and informed the Medical Officer about his wife having sustained injuries, due to a fire accident. He has asserted, that he was apprehended in the Hospital by the Police. He attempted to put down the fire, which he noticed, as he was returning from the hotel. He has further affirmed that only on that morning, his wife returned to his house.
The narration of facts, will portray, that the prosecution chose to rely upon Ex.P.2, the dying declaration recorded by P.W. 1, Judicial Magistrate, Chengalpattu, and the oral dying declarations made to P.Ws. 3, 4 and 11 by the deceased on 14.5.1990, the first of them at her residence and the rest of them at the Hospital. It will be necessary to list out the reasons, which impelled the learned trial Judge, to acquit Respondents 1 to 3. As a matter of fact, Petitioner''s learned Counsel was fair enough in submitting, that there was no worthwhile evidence against Respondents 2 and 3 and if at all scrutiny in this revision will have to centre around, availability of material sufficient enough, to incriminate the first Respondent. Such a concession has been correctly made, for P.W.3 Mrs. Gandhimathi, has categorically deposed, that Prema and her husband were living separately and on a solitary occasion alone, she had noticed Respondents 2 and 3 visiting them. One ground for acquittal, is that the first information report was registered only at 12.15 noon on 15.5.90, though the occurrence had taken place on 14.5.90 at 9.50 a.m. Further, learned trial judge has doubted as to how die First Information Report could have been registered on the statement of Prema at 12.15. noon, after her death, which had occurred an hour and half earlier. The second ground for acquittal is founded on the non-recording of Ex.P.2, the dying declaration, by P.W. 1 in question and answer form. Coupled with this infirmity, learned trial Judge has pointed out certain other lacuna like the impossibility of the victim having been in a fit state of mind to come out with a statement, especially after injection Pethidine was administered, the presence of her close relations which could have in all probability, tainted her statement, the absence of certificate in Ex.P.2 by the Medical Officer, that the victim was in a good state of mind to offer her statement and lack of precaution on the part of P.W. 1 in not having questioned the victim about her fitness (physical and mental) to speak to him as to the manner in which she had sustained injuries and the person or persons responsible for the same. The third ground for acquittal is the alleged mention made by die victim to P.W.6, that she had sustained certain burn injuries due to bursting of a stove. The evidence of P.Ws. 24 and 11 did not impress the learned trial Judge due to their prior conduct in not having taken any action in spite of their awareness of rupture in the family life between Prema and the first Respondent.
Before analyzing the evidence available and deciding the possibility of interference in this revision, the settled principle of law, about scope for interference in revisions against acquittals, at the instance of private parties, in a prosecution initiated by the State, will have to be clearly kept in the foreground. Often times, it has been observed that the High Court may exercise in revision any of the powers conferred on a Court of Appeal, which includes the power to reverse an order of acquittal or to direct a retrial. In view of Section 401(3) of the Code of Criminal Procedure, nothing in mat Section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. In other words, if interference is needed, to further the cause of justice, a re-trial alone can be ordered. Keeping this limitation in view, the principle enunciated is, that interference should be limited and sparingly exercised, when the impugned judgments suffered from any manifest illegality or the interests of justice required the acquittal to be set aside and a re-trial ordered. It is also the confirmed principle, that the revisional jurisdiction in such cases is limited, and while transgression on narrow limits, stands tested, there shall be compelling grounds, the ultimate object being setting right gross miscarriage of justice committed by the trial Judge. The Supreme Court has listed some guidelines and added an observation, that those limitations cannot be deemed to be exhaustive, for the facts prevalent in d particular case, will be the ultimate criterion, to decide about die scope for interference, by exercise of revisional jurisdiction.
Initially, it will be better to consider the effect and impact of Ex.P-2, judicial dying declaration recorded by P.W. 1, with all its advantages and infirmities pointed out by opposing counsel. Ex.P-2 was recorded at 1.20 p.m. on 14.5.90 in the Hospital by P.W. 1. P.W. 1 had received Ex.P. l at 1.15 p.m on 14.5.1990. Ex.P.2 from Prema. The dying declaration, Ex.P.2 recorded by P.W. 1 runs to about 3 72 foolscap pages. It bears the heading "Dying Declaration: and, ends with an endorsement of P.W. 1 that he had recorded the said dying declaration. It has the left thumb impression of Prema affixed to it in the last but one page, an endorsement is found which reads, "Dying Declaration taken in my presence" and P.W.5 claims to be the author of the same. In this Dying Declaration, the victim has stated that at 9.50 a.m. on 14.5.90 in the morning, there was a fight between herself and her husband. Her husband abused her vulgarly and beat her. He made adverse comments about her family members. That was the reason why she poured kerosene over herself and then got ignited, due to disturbed mind. In the second paragraph, she has stated that for this fire accident her husband alone was not responsible, but his elder sister and mother were also the cause. It was only on their inducement that her husband had beaten her in anger. She had set fire to herself. The fire had spread throughout her body, though initially her blouse and petticoat were damaged. In the next paragraph, she has stated, that silk saree was the cause for this act of hers. She had then added up that since her thali was snatched, out of grief, she lit herself with fire. She has further stated that her husband stated that no one could cause any harm to him and she will not be in a position to take away the articles, The beating was only in pursuance of such exclamation. In the next paragraph, the victim has narrated that during earlier Deepavali, her mother-in-law the third Respondent, abused her stating that she will not have any children. It was then she was beaten. There used to be frequent fights. They used to beat her quite often. Her sister-in-law and mother-in-law were attempting to find a new bride for her husband. Incessantly, the uncle of her husband, her mother in law and sister-in-law were troubling her. She was never in the habit of going out of the house. Stating that she cannot remain there, her husband brought her there with her mother and sister. Believing that she cannot live any more there, she came to that conclusion. In the next paragraph, Prema has narrated that she was staying in her father''s house for the past 15 days. Stating that she would hand over the insurance card to her husband, she came over to her husband''s house only on that morning. In her husband''s house, fight ensued resulting in her decision. P.W. 1 ended recording of this declaration at 1.55 p.m.
It is apparent that her statement is quite long. If it had been possible for the victim, to come out freely with such a long statement, it would prima facie lead to a presumption, that she must have been in a fit state of mind and health to speak at length about her past problems leading to her putting an end to her life, on that fateful morning. There is also another alternative look that this document would permit, if one takes note of the nature of burns sustained by her and the physical health condition, that she admittedly must have teen, which is evident not only from oral evidence, but also through the case sheet, marked as Ex.P.6. There is no dispute that when Ex.P.2 was recorded, relations of the deceased were in her company in the Hospital. The elementary precaution that the learned Magistrate ought to have taken was to satisfy himself about the state of mind of the victim before he commenced recording the statement. Equally, he must have taken the precaution of consulting the duty doctor to find out if the victim was in a fit state of mind and health to volunteer her statement. Both these precautions, probably, were not even in the awareness of this Judicial Officer. In this context, it will be necessary to quickly peruse his evidence. In his chief examination, all that he has stated is that on receipt of Ex.P. 1 at 1.16 p.m. he reached the Hospital at 1.20 p.m. and recorded the dying declaration of Prema, wife of Vedachalam, 22 Gopalapuram, Chengalpattu, after enquiring her. Thereafter, a part of the contents of the dying declaration has been narrated by him in the witness box. He then marked Ex.P.2. The only other statement in chief examination is that he recorded Ex.P.2 in the emergency ward in the presence of the doctor and completed recording at 1.50 p.m. Nowhere in his chief examination, he has stated that he satisfied himself that the victim was not only conscious, but also in a fit state of health and mind to give out her dying declaration. When a dying declaration is sought to be made the foundation of a prosecution, onus will be cast on the prosecution even in chief examination to establish that the Magistrate had satisfied himself about the mental and physical state of the victim before he went about his duty of recording the dying declaration. Such an approach by the prosecution is conspicuously absent. However, on that score alone, the evidence of the Magistrate cannot be rejected, if, on the basis of other available evidence, inclusive of the nature of cross examination of the Magistrate, it could safely be concluded, that the victim must have been in a fit state of mind and health to speak out.
Let us now scrutinize the cross examination of P.W. 1. He has conceded that he did not question the Medical Officer and equally the Medical Officer also did not endorse, that Prema was either conscious or in a fit state of mind to give her statement. Of course, he has deposed that he was not aware of the name of the Medical Officer. But that will be of no consequence. He has then admitted that he questioned Prema as to her name, native place and details about the case. But, even then, he did not put them down in Ex.P.2 in the form of interrogatories and replies. However, the Medical Officer informed him, that intimation stood forwarded to the police from the Hospital. He has then answered that on the request made by the investigating officer on 15.5.1990, he handed over a copy of Ex. P.2 to him. He has further admitted that when he recorded the dying declaration of Prema, her relations, about four in number, which included women and men, were present. He did not enquire and find out who exactly they were. Even from the cross examination of this witness, it is not possible to arrive at a definite conclusion, at least impliedly, that the victim must have been in a fit state of mind, to offer a dying declaration. Even the Medical Officer who has signed Ex.P.2 has not made an endorsement that the victim was either conscious or in a fit mental state to give a statement. These are important factors, which cannot be brushed aside as not very significant. Admittedly, the victim has suffered 90 per cent burns. Merely because P.W.5 Dr. Ashraf, has stated in his oral evidences, that the victim was conscious when Ex.P.2 was recorded, that would hardly suffice, for, he was examined on 10th July 1991., in respect of an event which had happened on 14.5.1990. It would very difficult for P.W.5 to have spoken out from his memory, of the physical and mental condition of Prema, thirteen months ago, when Ex.P.2 was recorded. If only this doctor had made an endorsement in Ex.P.2 about the mental and physical state of the victim, probably the position might have been totally different. Since Ex.P.6, the case-sheet has been brought on record by the prosecution, it becomes easy to find out the condition of the victim from the time she entered into the hospital till she died on the next day. This case-sheet states that at 10.42 a.m. on 14.5.1990 the victim was admitted in the ward and at 10.45 am, on 15.5.1990 she died. The cause of death is "burns 90% and shock". Further, this case sheet shows, that the victim was shown in the "dangerously ill'' list from 10.42 on 14.5.90. Every half an hour, the pulse and respiration were checked up and it is clear, that from the time of her admission till about 4.30 p.m. on 14.5.90, neither the pulse nor the respiration could be noted, or, in other words, they defied such nothings. Only from 5.00 p.m. onwards, respiration could be deciphered. But, even men, almost till her end, the pulse rate could not be gauged. From 10.45 a.m. onwards, on more than one occasion, injection pethidine has been administered and she was put on i.v. fluid. Of course, other drugs were also administered. From 11.30 a.m., we find entries that the patient was conscious, though the pulse and BP. were not recordable. In this context, it will be relevant to consider the evidence of P.W.6, the doctor, who attended on her, in the Emergency Ward from die beginning to the end. He is certain that the victim, had 90% burn injuries and that she was quite conscious. He has affirmed the contents of Ex. Pv6, that pulse could not be recorded. Since the physical condition of the victim was rather serious, he forwarded Ex.P. 1 to the Magistrate for the purpose of recording of a dying declaration. He has also claimed that he was present, when P.W. 1 recorded the dying declaration, but such presence cannot be taken for granted, for it is not backed up by any endorsement in Ex.P.2. Even P.W.5 has not stated, that P.W.6 was present when the Magistrate recorded Ex.P.2. It may be that P.W.6 was present, but it may be that P.W.6 who seeks to recapitulate the events which had occurred more than a year ago, it will be hazardous, to hold, that he must have been present, when the dying declaration was recorded. In the usual course, while concerned with his professional duties, he must have treated scores of similar such cases and that fact cannot be lost sight of by Courts. Even if he had been present, it does not appear to make much difference, so long as he has also not deposed about the mental and physical state of the victim, to offer a dying declaration. It can easily be discerned that there is a demarcation between a person being conscious and the same person being in a fit state of mind to offer a statement. It is quite often stated that a man is sub conscious when seriously sick or under influence of drugs or intoxicants. The state of mind will be a relevant factor, for that alone can be a measure to find out the possibility of a clear and cogent statement being offered by the victim. In this backdrop, the cross examination of P.W.6 is rather revealing. He has admitted that when the victim was admitted, it was fairly evident, that she would not survive. He has further affirmed the presence of two persons along with the victim, though he was not aware of their identities. When he questioned the victim in the ward, she told him, that she had sustained burn injuries due to bursting of a stove. This piece of his oral evidence will have to be given due weight, since we find an endorsement in Ex. P. 6, which reads "alleged to sustain burns while cocking, when the stove burst out" of course, it was commented by Petitioner''s learned Counsel that if the victim herself has so stated, the doctor would not have added the word "alleged". It all depends upon the manner of recording and on that sole ground alone, it cannot be held, that such a short statement could not have been made by a victim, more so, when we have an oral averment of the same by P.W.6. He has further conceded, that in Ex.P.2 he had not made an endorsement that when the dying declaration was recorded, the victim was in a fit mental and physical state to offer the statement. P.W.6 further admitted that he administered pethidine injection at 10.45 am, to the victim, the result of which would be inclination to sleep, though the patient could still be conscious We have already noticed from the case-sheet that pethidine was administered more than once and on the showing of medical evidence, the victim was rather in a precarious condition defying even recording of pulse, respiration and blood pressure. It is quite possible that she could have come out with some monosyllables. To hold that without any assistance or help from extraneous agency, she would have volunteered a very long statement appears prima facie dubious. It may be mat the evidence of P.W. 1, the Magistrate, who has no axe to grind, will be entitled to sufficient weight age. But, when it is apparent that he has failed to perform his elementary duties to give a stem of authenticity to Ex.P.2., it appears hazardous to invoke the revisional powers of this Court, to set aside an acquittal, which, by no means, can be characterized as one not arising out of proper assessment of evidence and a view that could not plausibly have been taken.
At this juncture, it will be relevant to notice the case law available on the subject. In K.R. Reddy v. Public Prosecutor (1976 Cri. L.J. 15481). Supreme Court stated as hereunder:
The dying declaration is undoubtedly admissible u/s 32 of the Evidence Act and not being a Statement on oath so that its truth could be tested by cross examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While 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. 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 rancor.
Again, on the fact situation in that case, the Supreme Court noticed, that when the deceased had reached the hospital, he was not in a position to talk and was groaning. The doctor had also stated that the state of mind of the deceased was restlessness. The doctor had further deposed that till the Magistrate arrived, he had no opportunity to assess the mental capacity of the injured. It further became evident to Supreme Court that the Magistrate who had recorded the dying declaration had admitted that the injured was suffering from pain and was taking time to answer questions. In spite of such a situation, the Magistrate appeared to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement. Thereafter, the Supreme Court, referred to one of its earlier pronouncements wherein it stood stated that the person who recorded the dying declaration was bound to question the deceased regarding his state of mind to make die statement. Such omission, in certain circumstances, can be very serious, sufficient enough to threw a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement. In that particular case, the Supreme Court found it extremely unsafe to place any reliance on the judicial dying declaration.
In Lallubhai Devchand Shah and Others Vs. The State of Gujarat, Supreme Court considered the argument of the defense counsel, that though the witnesses had stated in evidence that the deceased was conscious and was able to speak, it did not necessarily mean that she was in a proper mental condition to make a consciously truthful statement and unless clear evidence about her mental state was produced, the statement could not be regarded as reliable evidence. Learned Counsel in that case referred to an unreported decision rendered by the Supreme Court in Criminal Appeal No. 225 of 1967 (Sucha Singh v. State of U.P.) wherein it was held as follows:
It would be very unsafe to record a conviction for the offence of murder relying solely upon a statement recorded as a dying declaration which is not shown to be made by a person in a fit state of mind.
Thereafter, the Supreme Court stated, that there can be no doubt, that when a dying declaration is recorded, the person who records the statement must be satisfied, that such person was consciously making the statement understanding the implication of the words used. The expression "fit state of mind" used in the case referred to above means no more than that. In that case, the dying man whose statement was apparently recorded had died in a few minutes and just before recording of his statement, he had been surrounded by other Sikh Sardars who were speaking to him in Punjabi. It was felt, in that background, that the possibility of the dying man having transmitted suggestions made to him by Sikh Sardars could not be ruled out and hence it cannot be stated mat he had made a conscious and voluntary statement. The Court also blamed the doctor for not having put a question to test whether the deceased was in a fit state of mind to make the statement.
In Gopal v. State of U.P. (1994 Cri. L.J.240), the Supreme Court found that the doctors who had recorded the dying declaration, had deposed that the injured was conscious and his mental condition was such that he could give a statement and whatever he stated was correctly recorded and read out to him.
In Padmabhan Shamalbhai Patel v. State of Gujarat (1991 L.W. (Cri.) 237). Supreme Court stated, that the mere, fact that the deceased had suffered 90% burns and her general condition was poor was no reason to discard the testimony of both medical men when they stated that she was in a fit state of mind and was able to make the dying declaration. It was also observed by the Supreme Court in the same case that, as stated earlier, the dying declaration should preferably be in question and answer form and they did not think that failure on the part of medical men to record the statement of the deceased in that particular case in question and answer form, could in any manner, affect the probative value to be attached to their evidence. The Supreme Court noticed mat the deceased therein had answered the relevant questions in a coherent manner. Apparently, the learned Magistrates had recorded the dying declaration in the form of question and answer. Further, the doctor had also certified that the deceased was in a conscious state and good mental condition during recording of dying declaration. It was opined by the Supreme Court, that assuming that there are certain incorrect particulars regarding motives, that by itself will not affect the dying declaration, which had been duly recorded. Further, the Supreme Court found ample corroboration to the said dying declaration, even if some infirmity stood attached to it.
In Vithal Sadashiv Gaikwad Vs. State of Maharashtra, a Division Bench of the Bombay High Court stated as her under;
It is true as pointed out by the learned Counsel, that the correct and ideal situation would require a proper certificate from the doctor and an endorsement, that the patient is not only conscious but is in a fit condition to record the dying declaration, the latter being far more important than the former. In the absence of that certificate a Court could always fall back on other parts of the record for the purpose of satisfying itself. In the present case the record is satisfactory but we do concede that in the absence of such a certificate in other cases a dying declaration may be rendered heavily suspect.
The importance of the state of mind of the victim when the dying declaration was recorded cannot easily be overlooked, though, on available facts, in a particular case, due to other material available, certain infirmities, though existent, may not be taken to affect the inherent truth of the dying declaration.
The observations of the Division Bench of Andhra Pradesh High Court in Wadacally Venkanna v. State of Andhra Pradesh (1992 M.L.J (Cri.) 204) is certainly very relevant and needs extractions
Before parting with the case, we wish to add that since it is a well settled law that a Court is entitled to convict on the basis of a dying declaration, all precautious he taken to see that the said dying declaration is recorded being fully satisfied that the declarant was in a fit state of mind while making the statement. The Magistrates should not record dying declaration unless he is fully satisfied about the same and before recording the dying declaration the Magistrate should state therein that he was fully satisfied that the declarant was in a fit condition to make a statement. The Magistrate, while recording the dying declaration, to the possible extent, should insist upon the presence of the medical officer while recording the same and obtain an endorsement from the said medical officer that the declarant was in a fit condition to make a statement and not the usual statement that the declarant was conscious.
In Satya Narain Vs. The State, a Division Bench of the Allahabad High Court stated as follows:
The third dying declaration relied upon by the prosecution is the one taken by the Magistrate, which is Ext. Ka. 21 on the next date, namely, 22nd October, 1971. There are two serious infirmities in this statement although Sri Abbas, who was examined in this case, stated that he had recorded the statement as given to him by the deceased. The first infirmity is that there is no certificate appended to this statement by the doctor that the deponent was in a fit mental condition to give a statement. The second infirmity in this statement is that the time of recording such a statement was not mentioned by Dr. Abbas. We must remark at this stage that it is the duty of the Magistrate to know these rudimentary things, namely, that before recording dying declarations they must get a certificate of the doctor, appended regarding mental state of the deponent and, secondly, they should mention the time when such a statement was taken down. In these circumstances, we do not think it safe to rely upon this statement.
A Division Bench of this Court to which I was a party, in Arumugham Appellant. In re. (1994 2 L.W. (Cri.) 133 S.N.), stated, that the admissibility and value of a dying declaration recorded by a police officer depended on availability of time and facility to the prosecution, for adopting a better method. In that case, the police officer had recorded a dying declaration without satisfying himself about the condition of the maker and further failed to call the doctor to satisfy about the condition of the maker. Under such, circumstances, it was held that it was not prudent to base a conviction on a dying declaration made to an investigating officer, more so, when it was not even signed by the declarant or the witnesses. In the same case this Court stated as follows:
Great sanctity is attached to the words of a dying man, since a person on the verge of death is not likely to tell lies or concoct a case so as to implicate an innocent person; but the court has to be vigilant against the statement of the deceased being a result of either tutoring, prompting or a product of his or her imagination. The court must also be fully satisfied, that the deceased person was in a fit state of mind, to make the statement. Once the Court is satisfied about the truth and voluntary nature of the dying declaration, even in the absence of corroborative evidence, the dying declaration could be acted upon to record a conviction. If the circumstances are either suspicious or suffer from infirmities, it would be highly unsafe to act upon such a declaration without seeking ample and cogent corroboration. Similarly where the version contained in the dying declaration is found inconsistent with the actual facts collected during declaration itself, much importance should not be attached, merely because the statement was a dying declaration. The test of proximity is not always relevant. Distance of time would depend or vary with the circumstances of each case.
It was further observed by the said Division Bench, that the case dealt with by them was one of those cases where the commission of the Judicial Magistrate who recorded the dying declaration to question the deceased regarding her state of mind to make the dying declaration threw a good deal of doubt on the fact whether the deceased was in a fit state of mind to make a statement. In that case, the doctor concerned was also not examined. The further observations in the said case may also be relevant for the instant case. They read as hereunder:
While dastardly crimes of bride burning should be put down with a heavy hand, merely because of the gravity of the crime, it cannot always be presumed, that cases of bride burning should always be taken to indicate homicide and not accidental or suicidal deaths. The Court owes an enormous duty to analyze and scrutinize the evidence with great care and caution for as much as an offender should not be allowed to escape the clutches of law, a possible innocent should not be allowed to be found guilty, even if a least amount of suspicion is generated on the available evidence. The anxiety of the law maker is quite evident by the introduction of Sections 113A and 113B in the Indian Evidence Act, in 1983, dealing with presumption as to abetment of suicide by a married woman and presumption as to dowry death., if the death of the woman had occurred within 7 years of her marriage and if such woman had been subjected to cruelty or harassment. The stricter the law the greater the vigilance that is required by Courts in analyzing threadbare, the entire circumstances placed before it, for consideration, to prove the guilt of the offender.
Petitioner''s leaned counsel placed before me the decisions of the Supreme court in Meesata Ramakrishnan v. State of A.P. (1994 SCC (Crt) 833) where the Supreme Court was concerned with the dying declaration recorded on the basis of nods and gestures. On the factual conspectus, it was held, mat such idying declaration was not only admissible, but possessed evidentiary value, the extent of which shall depend upon the person who recorded the statement, his educational attainment and the-manner in which the questions were asked and the nature of gestures and nods that were made. Further, Court had to scrutinize whether the questions asked were simple or complicated and how effective or understandable the nods and gestures were. In that case, the mental conscious state of mind of the deceased was effectively certified. The Supreme Court accepted the dying declaration.
The law laid down by the Supreme Court and other Courts, which have been taken note of by me, clearly fixes the responsibility on the Court, to arrive at its conclusion, on the mental state of victim to offer a dying declaration, not only on the basis of the medical evidence, the manner in which the Magistrate as satisfied, but also on the foundation of surrounding circumstances. It is also possible to discern a difference between a person being conscious and the same person being in a fit state of mind-(mental) fully and consciously, to declare the truth about a particular happening. It may also be possible, that on, the same set of facts, two views may be plausible. But, so long as one view, that had been taken by the learned trail Judge in this case, cannot be discarded as a view not plausible on the available evidence, then scope for interference in a revision against acquittal at the instant of a private party is almost next to nil.
Now that it is certain that based on Ex.P.2 alone it will be hazardous to record a conviction, not only because of its unusual length the physical condition of the victim, but also due to absence of material on the mental state of the victim, it will be the duty of this Court to audit, other material available, to find out if such independent material simplicities, or even seeking some corroboration from; that material to Ex.P.2, a conviction will certainly be possible, and no view other than recording of a conviction would alone prevail on such material. It is further unfortunate, that in miscase, inspite of a message from the hospital; the police agency did not choose to obtain a statement the deceased or anyone else and commence investigation. Only after the death of the deceased, they had entered into the scene.
We have three oral dying declarations made by the Wctim to P.W.3, 4 and 11. The feang declaration made to P.W. 3 was at the spot of crime, when P.W.3 questioned the victim as-to why she had in haste acted in such a pattern; the reply was that she was fed up with life and was no longer interested in living. This statement does not specifically bring out the real object of the decision, taken by the deceased, to put an end to her life or even the proximate cause which had led her, to set herself ablaze. However, it is evident from the version of P.W.3, that the fast Respondent had informed her that he was vacating the house on that particular day and was busy packing up his articles towards that end. It cannot also be overlooked, that admittedly the victim had arrived at the residence of her husband (first Respondent) only on that particular morning after a sojourn in her parent''s house forever a fortnight. It is in this context, that the statement made by the deceased to P.W.4 her elder sister, is rather revealing. The understanding of P.W. 4 on the statement of the victim was, that on that particular morning there was a dispute between the victim and the first Respondent as to the place they should reside together - Tambaram or Chengalpattu. The victim had emphasized the said fact as the cause for the first Respondent abusing her rather in wild language, which has been termed by P.W.4 as "TAMIL". The exact words spoken by the victim to P.W.4 may have to be extracted:
Again, when cross examined, P.W.4 has stated that the first Respondent was employed in Madras and was constrained to proceed to his work spot daily from Chengalpattu. We have already noticed, that the parents of the deceased as well as her sister were residing at Chengalpattu and the pampered deceased, was quite often staying with her parents who were able to win over the first Respondent as well as to live with his wife, in rented accommodation in Chengalpattu, apparently the object being nearness of the victim to them. It appears from the evidence, that the first Respondent was anxious to switch over to Tambaram, since his work spot will be nearer. Each and every misunderstanding or trifling quarrel between husband and wife, cannot be sought to be brought within the term "cruelty" contemplated u/s 498A, I.P.C.
Before considering the aspect of cruelty, necessary in law, to base a conviction u/s 498-A, I.P.C. the admission of this witness that neither the Medical Officer nor the Magistrate had approached the victim during her long stay, commencing from 1.30 p.m. on 14.5.90 till almost the death of the victim, cannot be brushed aside as not significant. She has also stated, that her sister was able to talk. That alone would^ not suffice to have a clear picture of the mental ''state of the victim, more so, when we have abundant material in the case sheet, Ex.P.6, about impossibility of recording of pulse, respiration and blood pressure of the victim. Though it is possible to hold, that in all probability the first Respondent, who had brought his wife to the Hospital, could have told Dr. Asaraf, P.W.5, that his wife had sustained injuries due to a fire accident, it will be Very difficult to get over the oral evidence of P.W. 6, Dr. Adhi, which stands corroborated by the entries in Ex.P.6 that the deceased herself had informed him, that she had sustained injuries due to burst of a stove. That earliest statement made by the victim to the doctor, that statement itself being so short, cannot be erased as not significant.
Then, the only other dying declaration is one that stood made to P.W. 11, the father of the victim. He had proceeded to the hospital on the occurrence evening and when he questioned her, she apparently replied that her husband beat her after snatching away the thali and that was the cause for her immolating herself. The deceased obviously has given three different stories, one to P.W.6, Medical Officer, another to her sister, P.W.4 and the third to her father. Such a statement postulates the improbability of the deceased having been in a fit state, to give out details, with any amount of cogency or coherence. It is in this context, that if all these details are sought to be mopped up into one, in the form of a long dying declaration, it prima facie appears improbable. The weight that could be attached to such a declaration, gets reduced in view of the probability of its having come out in parts, at least, due to influence, of other people surrounding her. As to the conduct of the husband, the first Respondent herein, it was he who had taken her to the hospital immediately, and brought to the scene, without loss of time, by his hue and cry. Such conduct may not always be in favour of the accused concerned, but such conduct cannot be allowed to take a back seat, if it could certainly get probabilised, on the other evidence brought on record, by the prosecution. Here is a case where admittedly Respondents 2 and 3, were not living in the household of the first Respondent and the deceased, and has allowed them to fend for themselves by residing separately. If Ex.P.2. implicates them, though admittedly they were not present, Ex.P.2 certainly gets tarnished. It is also clear that the deceased was very keen to be nearer to her parents and therefore had chosen to stay in Chengalpattu, where her parents and sister were living, rather than, be of any use to her husband, who was employed at Madras and naturally a residence nearer to Madras, should have been a reasonable and mutually accepted venue. The evidence does not disclose clearly and clinchingly, that there was harassment on account of dowry and the findings recorded by the learned trial Judge on that aspect cannot be held to suffer from any serious infirmity: The net result is that Ex.P.2 cannot be acted upon and other material on record does not commend itself for acceptance, to safely hold, that the first Respondent can be deemed to be the author of these crimes.
Under Explanation (a) to Section 498-A, I.P.C. cruelty is stated to mean any willful conduct, which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. There is no dispute that Explanation (b) does not stand attracted. On the available facts, it will be difficult to conclude, that the proximate cause which led to the deceased immolating herself, namely, not being inclined to shift to Tambaram from Chengalpattu, could be stated to be a willful conduct of such nature, on the part of the first Respondent, which was likely to drive the deceased to commit suicide. If "cruelty" u/s 498A, I.P.C. will have to take in petty quarrels between spouses day in and day out, then in every household the husband''s position will rather be precarious. Certainly, that is not the object of law. Before drawing a presumption u/s 113-A of the India Evidence Act, minimum acceptable evidence must be available, which is absent, in this case of Course, the reasoning of the learned trial Judge that the First Information Report stood registered belatedly and that was cause for the suspicion cannot be upheld.
The test for interference in a revision against acquittal or even as matter of fact in an appeal against acquittal, is not that the High court while exercising its appellate or revisional powers could take a different view on the evidence. The litmus test is whether the findings recorded are or are not clearly plausible or feasible on he available evidence. To put it in other words, merely because another view is also plausible, that cannot be the yardstick for interference. The facts placed before me did initially shock my conscience. But, alter national analysis and the logic behind the circumstances unfurled, I am bound to conclude that the learned trial Judge, on the basis of his reasoning was justified in having exonerated all the three Respondents. As I had occasion to observe in Arumugham-Appellant in re. (1994 2 LW (Cri) 133 S.N.), the Court owes an onerous duty to analyze and scrutinize the evidence with great care and caution for as much as an offender should not be allowed to escape the clutches of law, equally a possible innocent should not be allowed to be found guilty even if a least amount of suspicion is generated on the available evidence. Stricter die law, the greater the vigilance that is required by Courts in analyzing threadbare the entire circumstances placed before it.
The revision case, on the basis of my reasoning, shall stand dismissed. I place on record the valuable assistance rendered, on my request, by Mr. R. Raghupathi, learned Additional Public Prosecutor.
Before parting with this case, I am anxious to make the following observations. It is settled law, that a conviction can be based solely on a dying declaration, if it is capable of unreserved acceptance. If that be the law every precaution should be taken, when a dying declaration is recorded the recorder must be fully satisfied that the declaring was in a fit state of mind while making the statement and such satisfaction must also be exhibited. Judicial Magistrates who proceed to record dying declaration must totally be satisfied about die fit state of mind of the declarant before commencing recording dying declarations. In the declaration the Magistrate should state that he was fully satisfied that the declarant was in a fit state to make a statement on the basis of his own assessment. Further, the Judicial Magistrate, while recording the dying declaration, as far as possible, should insist upon the presence of the Medical Officer and obtain an endorsement from the Medical Officer that the declarant was in a fit condition to make a statement and not the usual statement that the declarant was conscious. The Medical Officers also owe a duty not merely to affix their signatures in dying declaration, but to endorse in these statements that in their presence the recorder had recorded the declaration and during the whole of such process, from commencement to termination the declarant was not only conscious, but also in a fit state of mind to volunteer the statement. It will also be necessary, unless it becomes impracticable, that the declaration is recorded as far as possible in question and answer form. We quite often come across these elementary precautions either not being in the awareness of the Magistrates or the Medical Officers, or their disinclination to strictly follow these procedures. Hence, in my opinion, this last paragraph, of this order, must be communicated to all Magistrates and all Medical Officers through the Director of Medical Services for strict compliance. This communication can be forwarded after placing these observations of mine before the Honorable the Chief Justice.