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Judgment
This appeal has been filed by the appellant being aggrieved by the judgment dated 30.11.2005, passed by learned Ist Addl.Sessions Judge, Shahdol in Sessions Trial No. 154/2005, whereby the appellant has been found guilty for the offence punishable under Section 302 of IPC and has been sentenced to undergo life imprisonment and fine of Rs.2000/-,with default stipulation.
The prosecution story setting in motion the aforesaid trial, in nut shell, is that deceased Shyamkali and accused-appellant Dharamdas loved each other and got married against the wishes of her mother Ramratibai (PW.1) and were living together for the last 5-6 months.
According to prosecution, on the fateful night Shankar (DW.1) ate bread in the house of accused and went
away. Thereafter, the appellant came home at about 9.30 PM and on coming to know that Shankar had eaten bread hit the deceased and set her on fire after pouring kerosene on her. Hearing the shouts of the deceased Ramratibai (PW.1) mother of the deceased, Jitendra Kumar (PW.2) brother of the deceased and Pooranlal (PW.3) brother of the appellant all came to the spot and extinguished the fire. Pooranlal (PW.3) then took the deceased to Primary Health Centre, Amarkantak for treatment where she was treated by Dr.S.K.Singh (PW.11) who then informed the matter to the Police Station- Amarkantak vide Ex.P/19. Yogendra Singh Mourya (PW.7) Naib Tahsildar recorded the dying declaration (Ex.P/15) of the deceased at about 11.45
PM. On this information,offence under Section 307 of the IPC was registered against the appellant which was later on converted to Section 302 IPC as the injured Shyamkali succumbed to the injuries after 25 days of the incident.
To bring home the charge, prosecution examined 13 witnesses. The accused-appellant abjured the guilt and pleaded false implication. He has examined Shankar as DW.1 and himself as DW.2. The definite case of the defence was that appellant and Shankar (DW.1) were eating food in the night. The deceased went inside the room to make more bread. As there was no electricity in the house, while lightening the Chimney the kerosene accidentally fell on her and she got burnt. The appellant tried to extinguish the fire and got himself burnt in that process.
The trial Court, after enumerating the facts and analyzing the evidence, has come to the conclusion that prosecution has proved the case beyond reasonable doubt and placing reliance mainly on the dying
declaration (Ex.P/15) convicted the appellant and sentenced him as aforesaid.
The learned counsel appearing for the appellant have submitted that the trial Court has gravely erred in relying on the dying declaration which was not trust worthy on account of the fact that the deceased was having 50-60% burn injuries and both her palms were
burnt. It is further submitted that in view of the statement of Jitendra Kumar (PW.2) brother of the deceased and the fact that Ramratibai (PW.1) after hearing the victim had narrated and explained the version to the officer taking the statement, no reliance could be placed on the dying declaration.
Learned counsel appearing for the respondent/State, on the other hand, has submitted that the judgment rendered by the trial Court after careful analysis and appreciation of the evidence, and the dying declaration which is certified by the doctor, is flawless and requires no interference from this Court.
We have heard the learned counsel for the parties and meticulously perused the record.
In the instant appeal, the conviction of the accused- appellant is solely based on the dying declaration made by the deceased and recorded by Naib Tahsildar in presence of the doctor. It is settled law that while recording the dying declaration, factors such as mental condition of the maker, alertness of the mind and memory, evidentiary value has to be taken into account.
In Atbir vs. Government of NCT of Delhi (2010)
9 SCC 1 , the Supreme Court, after analyzing the various decisions on the issue has observed :-
"22.The analysis of the above decisions clearly shows that, (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration"
In Laxman vs. State of Maharashtra (2002) 6 SCC 710 , the Supreme Court has observed thus :-
"The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. "
Similar view is taken in Ramesh and others vs. State of Haryana (2017) 1 SCC 529 and in Pawan Kumar vs. State of Himachal Pradesh (2017) 7 SCC
780.
In the case at hand, the trial Court has found the dying declaration credit worthy and has held the same to have been made by the deceased in a fit state of mind on the basis of the certificate given by the doctor. The dying declaration (Ex.P/15) has been made by the deceased to Yogendra Singh (PW.7) in presence of Dr. S.K.Singh (PW.11). It is evident from the evidence of Dr. S.K.Singh (PW.11), who had first examined and treated the victim, that she was brought at 11.15 PM pm and at that time the victim was 50-60% burnt. There were blisters in both her hands. Her face, eye,chest were deeply burnt. Head and hair on it were also burnt.
According to the doctor, the injuries sustained by the victim were grievous in nature and her condition was serious and very weak and she was under terrible pain.
In his cross-examination, the doctor has admitted that he had given a higher doze of pain killer to the victim so that she could calm down and sleep and thereafter sent the information to the police station. He has further admitted that the speech of the victim was not clear.
She was speaking Gond language, hence her mother was called to translate and narrate her statement and accordingly, dying declaration (Ex.P/15) was written as per the narration made by mother of the victim.
The statement of the doctor has been corroborated by Jitendra Kumar (PW.2) brother of the deceased who had admitted that while recording the dying declaration of the deceased, he and his mother were inside the room and his mother was translating the statement given by the victim.He has also admitted that after his sister died, he and his mother in consultation with the police authorities had made up a case so as to get the accused punished.
Y.S.Mourya (PW.7) Executive Magistrate and Naib Tahsildar who had recorded the dying declaration of the victim at 11.45 PM has admitted that the mother and brother of the victim were present in the room while he had recorded the dying declaration.
It is evident from the material placed before us that the condition of the victim was very serious and she was under the influence of pain killer, her speech was admittedly not clear , her hands were burnt and having blisters. Under such facts and conditions, it is inconceivable that the victim was mentally alert to give her statement and was able to put her thumb impression on the dying declaration. Apart from this, it is also admitted fact that Ramratibai (PW.1) was harboring a grudge against the appellant as her daughter was living with the appellant against her wishes and had also filed a complaint in this regard.
She had admitted that after her daughter started living with the accused-appellant, she severed all ties with her.
In the circumstances, too much reliance cannot be placed on the dying declaration (Ex.P/15) which was recorded on the basis of statement narrated by Ramratibai (PW.1).
Pooran (PW.3) who is the brother of the accused had stated that he heard the shouts of deceased and on reaching he saw the accused trying to extinguish the fire and got his hands burnt in the process. He has further stated that Shankar (DW.1) had informed him that while putting kerosene in Chimney, the deceased got accidentally burnt who then went out to call others. The statement of Pooran (PW.3) is corroborated by Dr. S.K.Singh (PW.11) who had examined the accused and found both his hands burnt and swelling and redness on his palms.
Shankar (DW.1), in his deposition, has stated that on 11.04.2005 accused-appellant Dharamdas had asked him to bring vegetable which he had gone to deliver.
Dharamdas asked him to have food with him and asked the deceased to prepare some more breads. The deceased went inside the room to make more bread.
After sometime she came out ablaze. According to him, appellant Dharamdas tried to extinguish the fire while he went to call other people from the village.
The appellant has chosen to examine himself as DW.2. In his statement recorded under Section 315 of Cr.P.C. The appellant has stated that he and Shankar (DW.1) were eating food when his wife Shyamkali went inside to make bread, after few minutes she came out ablaze. According to the appellant, there was no electricity in the house and while lightening the Chimney, the deceased accidentally got burnt. He tried to extinguish the fire and in that process got his hands
burnt. S.P.Singh (PW.12), the Forensic Science Expert in the crime unit who inspected the place of incident has also corroborated this fact that there was no electricity and Chimney was used as a source of light in the house.
The consistent testimony of the appellant and Shankar (DW.1) is to the effect that both of them were having food in the courtyard while deceased went inside to make more bread and in the process of lightening the Chimney got burnt accidentally. She came out of the room ablaze and the appellant tried to extinguish the fire and got his hands burnt in the process. The report also says that victim was brought to the hospital by the appellant and his brother. The evidence of Investigating Officer when read in conjunction with the testimony of Shankar (DW.1) and appellant (DW.2) does not link the appellant with the act leading to unnatural death of the deceased. The version of the appellant is also in accordance with the statement made by him under Section 313 Cr.P.C.as well.
In Jose @ Pappachan vs. Sub-Inspector of Police, Koyilandy and another (2016) 10 SCC 519 the Apex Court held thus :-
"56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.
The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise "The Law of Evidence" fifth edition by Ian Dennis at page 445:
"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt."
In Dhan Raj @ Dhand vs. State of Haryana (2014) 6 SCC 745, one of us (Hon. Ghose,J.) while dwelling on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture."
In view of the aforesaid facts and circumstances judged on the above parameters, we are of the considered opinion that the finding of guilt recorded by the trial Court solely on the basis of dying declaration, is clearly erroneous and deserves to be and is hereby set
aside. The impugned judgment dated 30.11.2005 passed in ST No.154/2005 by learned Ist Addl. Sessions Judge, Shahdol is hereby set aside. The accused-appellant is acquitted of the alleged offence punishable under Section 302 of IPC.
Accordingly, the appeal filed by the appellant is hereby allowed. The appellant is directed to be released forthwith, if not required in connection with any other case.