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Sunday, July 21, 2013

Dying Declaration =It may not be an absolute proposition of law that a dying declaration should be recorded by a Magistrate There is nothing on record to suggest that Dr. Rajinder Rai (PW- 4) is an unreliable witness. To the contrary, he is a natural witness and his testimony has not been shaken during a long cross examination. The theory of tutoring is also ruled out in the present case as the accused persons only were present with the deceased during that time and none of the family members of the deceased were present when the dying declaration was recorded by the Doctor. The husband (appellant no.1) Manoj has also affixed his signature on the MLR on which the dying declaration was recorded by the Doctor. The evidence of PW-4 is trustworthy, cogent and reliable. What we find in the present case is that the dying declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4) was also signed by Manoj (appellant no.1) which indicates that appellant No.1 was present when statement was recorded. Nothing on the record to suggest that any of the relation of the deceased was present to influence Dr. Rajinder Rai (PW-4). The law is well settled that if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. Such view was taken by this Court in Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1 SCC 73 wherein this Court held: the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW 5, the doctor very clearly shows that the deceased was conscious and was medically in a fit state to make a statement. It is because of the fact that a Judicial Magistrate was not available at that point of time, he was requested to record the statement, which he did. His evidence in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been challenged in the cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below. The next question for our consideration is whether this statement is voluntary and truthful. It is not the case of the defence that when she made the statement either she was surrounded by any of her close relatives who could have prompted her to make an incorrect or false statement. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, the doctor (PW 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted.........”

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40535
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1853 OF 2012


MANOJ & ORS.                                      ...APPELLANTS

                                   Versus

STATE OF HARYANA                           ...RESPONDENT

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.

      The appellants in this case were found guilty of   offence  punishable under Sections 498-A and 304-B Indian Penal Code (for short, “IPC”)  by  the Sessions Judge, Bhiwani.
They were sentenced  to  undergo  imprisonment  for
life for the offence under Section 304-B IPC and also  to  undergo  rigorous imprisonment for three years, besides, payment of fine  of  Rs.5,000/-  each and in default of which to undergo further imprisonment for a period of  six months for the offence under Section 498-A IPC.  
Their  appeal  against  the
said judgment and conviction to the  High  Court  of  Punjab  &  Haryana  at
Chandigarh got dismissed
except with  a  modification  in  the  sentence  of
imprisonment from imprisonment for life to imprisonment  for  10  years  for the offence under Section 304-B IPC.
2.    The prosecution case, in brief, is that on 14.4.2005 on receipt  of  a
telephonic  message  from  the  Incharge,  Police  Post,  General  Hospital,
Bhiwani regarding admission of Meena Devi wife  of  Manoj  Kumar  (appellant
no.1) resident of Village Hetampura in burnt condition, ASI Chattarmal  (PW-
11) of P.S. Sadar,Bhiwani along with  other  police  officials  reached  the
said hospital and  collected  medical  ruqa  (memo)  alongwith  medico-legal
report of  injured  Meena.
After  obtaining  the  opinion  of  the  Doctor
regarding fitness of the injured to make statement when he brought the  Duty Magistrate to record her statement in the hospital, the Doctor  had  already referred her to PGIMS Rohtak.  
Thereafter, he alongwith  Magistrate  reached
PGIMS, Rohtak and collected two medical ruqas from  Incharge,  Police  Post,
PGIMS Rohtak out of which one was regarding death of Meena. 
Then he  reached
in the gallery of emergency ward where complainant  Vedpal  (PW-9)  met  him
and got recorded his statement (Ex.PA).
It is alleged by  the  complainant-
Vedpal (PW-9) that he had one daughter  and  two  sons.
His  daughter  was
married with Manoj (appellant no.1) son of Mahabir about five years  earlier
(the actual date of marriage found to be 6.05.2000)  to  the  incident  that
had occurred on 14.04.2005.
He further stated that in the  marriage  of  his
daughter, he had given dowry beyond his financial  capacity.   However,  his
daughter on her return from her matrimonial home for  the  first  time  told
him that her in-laws were not satisfied with the dowry  articles  that  were
given in marriage.
The complainant  had  given  double  bed,  T.V.,  fridge,
cooler, sofa set, almirah, 21 utensils and clothes etc., besides,  Rs.2100/-
in  cash.
When  the  daughter  of  the  complainant  (PW-9)  went  to   her
matrimonial home for  the  second  time,  his  son-in-law  Manoj  (appellant
no.1), the mother-in-law of his  daughter  namely  Chameli  Devi  (appellant
no.2), the  father-in-law  namely  Mahabir  (since  acquitted)  and  Jethani
(husband's elder brother's wife) of his  daughter  namely  Suman  (appellant
no.3) raised a demand for a motor cycle and started torturing her  (beating)
for  this.
Therefore,  Meena  Devi  (deceased)  started  living  with  him
(complainant).  She  stayed  with  her  father  (complainant)  for  fourteen
months. About ten months earlier from the date of  incident  that   occurred
on 14.04.2005, the complainant (PW-9) made his daughter understand and  sent
her back in the presence of panchayat of Hetampura and Sant Mann  Singh  s/o
Chandu Ram r/o Hissar.
However, even then  the  accused  were  demanding  a
motor cycle and kept troubling his daughter for dowry.
On  14.04.2005,  at
about 8.00 a.m, Mahabir  informed him on  telephone  from  the  Hospital  at
Bhiwani that Meena Devi (deceased)  had  been  admitted  in  the  Government
Hospital, Bhiwani with burn injuries.
On  receiving  this  information,  the
complainant (PW-9)  and Dayanand s/o  Jogi  Ram  and  his  brother  Shamsher
reached the Hospital at Bhiwani.
There they came to  know  that  Meena  Devi
(deceased) had been referred to PGIMS, Rohtak.
Then they all reached  PGIMS,
Rohtak where he met his daughter in the emergency  ward  of  PGIMS,  Rohtak.
His daughter told him that
in the morning on  that  day,  her  mother-in-law
namely Chameli Devi (appellant no.2) had called her  in  the  room  and  her husband Manoj (appellant no.1) poured kerosene oil on her and her  husband's elder  brother's  wife  (Jethani)  namely  Suman  (appellant  no.3)  lit   a matchstick and set her on fire on account of  which  she  got  burnt.  
After sometime Meena Devi (deceased) while she was under  treatment  breathed  her last.
It it alleged by the complainant (PW-9) that on account  of  greed  of
dowry, his daughter Meena Devi (deceased) had been set on  fire  by  pouring
kerosene oil on her by her husband  Manoj  (appellant  no.1),  mother-in-law
Chameli Devi (appellant no.2) and husband's elder brother's  wife  (Jethani)
Suman  (appellant  no.3)  after  colluding  with  each  other.
He   further
requested for action being taken against the accused.
3.    On the basis of  such  complaint  FIR  No.103  dated  14.4.2005  under Sections 304-B/498-A/406/34 IPC was registered
Subsequently
on  the  basis
of above allegations, 
all the four accused were charged under Section  304-B in alternative under Sections 302, 498-A and 406 r/w Section 34 of  the  IPC
to which they pleaded not guilty and claimed trial.
4.    All together eleven witnesses were  produced  by  the  prosecution  in
support  of  their  case.  Exhibits  were  proved  through  the  prosecution
witnesses. Defence also produced two witnesses in its favour.
5.    The Sessions Judge, Bhiwani  by  judgment  dated  4.09.2006  acquitted Mahabir father-in-law of the deceased and held  the  appellants  guilty  for the offence under Sections 498-A and 304-B of the IPC.  
The  Sessions  Judge
further held that the prosecution has miserably failed  to  prove  its  case
against all the four accused for the offence under Sections 302 and 406  r/w
Section 34 IPC and, hence, all the four  accused  were   acquitted  for  the
said offence.
6.    An appeal was preferred by the appellants against the judgment  passed
by the Sessions Judge, Bhiwani and  another  appeal  was  preferred  by  the
complainant-Ved  Pal  (PW-9)  against  acquittal  of  Mahabir.  By  impugned
judgment dated 15.02.2012 the Division Bench of the  High  Court  of  Punjab
and Haryana at  Chandigarh  dismissed  the  appeal  preferred  by  Ved  Pal-
complainant(PW-9). The judgment passed by the Sessions  Judge  was  affirmed
with the modification in the sentence of imprisonment, the appeal  preferred
by the appellants was also dismissed.
7.     In  this  appeal,  learned  counsel  appearing  for  the   appellants
contended that in view of severity of burn  injuries  of  the  deceased  she
could not have been in a fit state of mind or  condition  to  make  a  dying declaration. 
The said dying declaration is purported to be made in  presence of Dr. Rajender Rai (PW-4). 
In absence of any other material to  corroborate the same, the dying declaration should not be relied upon.
8.    It was submitted that PW-7, the Police Inspector who  had  prepared  a report under Section 173 Cr.PC, in his statement admits that  there  was  no mention of the statement of the deceased allegedly recorded  by  the  Doctor at the time of her MLR.  
Even under Section 313 Cr.PC, no question was  ever
put to the accused with regard to his signing of the said MLR  in question.
The said dying declaration raises suspicion and doubt.  
It  may  not  be  an absolute proposition of law 
that a dying declaration should be  recorded  by a  Magistrate  but  if  in  a  given  case,  there   is   ample   time   and opportunity,the services of a Magistrate should be called upon in  order  to lend credence to the said dying declaration.  
The  I.O  (PW-11)  has  stated
that after reading of the statement Ex.PF, he did not approach the  deceased to verify from her if she had made such statement or not.
9.    Per contra, according  to  counsel  for  the  prosecution,  the  dying
declaration  recorded  by  Dr.  Rajinder  Rai  (PW-4),  Medical  Officer  is
reliable.
There is nothing on record to suggest that Dr. Rajinder Rai  (PW-
4) is an unreliable witness. To the contrary, he is a  natural  witness  and his testimony has not been shaken  during  a  long  cross  examination.
 The theory of tutoring is also ruled out in the  present  case  as  the  accused persons only were present with the deceased during that  time  and  none  of the family members of the deceased were present when the  dying  declaration was recorded by the Doctor. 
The husband  (appellant  no.1)  Manoj  has  also
affixed his signature  on  the  MLR  on  which  the  dying  declaration  was recorded by the Doctor.  The evidence of PW-4  is  trustworthy,  cogent  and reliable.
10.   Further according to  the  learned  counsel  for  the  prosecution  an
alternate charge under Section 302   shall be framed in addition to  Section
304-B and in view of dying declaration  of  the  deceased,  which  has  been
believed by both the courts below.
A grave error of law has  been  committed
by the trial Court as well as the High Court by not convicting  the  accused
persons under Section 302.
It was submitted that this is a fit case  wherein
this Court may exercise its extraordinary powers under Article  142  of  the
Constitution of India  and  shall  consider  altering  the  conviction  from
Section 304-B to Section 302 IPC.
11.   Coming to the evidence  of  Dr.  Rajinder  Rai  (PW-4)  who  conducted
medico-legal examination and recorded the  statement  of  the  deceased,  we
find that he specifically deposed that the deceased  Meena  was  brought  to
the Hospital with the history of burns. Kerosene  like  smell  was  present.
Smell was also present in the clothes.  On examination  she  was  conscious.
There were superficial to deep burns about 100% with in  a  duration  of  12
hours. Dr. Rajender Rai (PW-4) stated that the deceased told  him  that  she
was called inside and the door was latched from inside.   Kerosene  oil  was
sprinkled upon her and her Jethani Suman had ignited the fire by  the  match
stick. Her husband  and  mother-in-law  were  also  involved  in  it.  After
recording the statement of the deceased, he signed  it.  The  statement  was
again read over to the patient by him in Hindi. She stated  Yes.   He  again
asked the patient whether the above statement  was  correct  and  she  again
stated Yes. He again signed the endorsement and put the time  of  7.55  a.m.
He prepared MLR including statement of the patient recorded by  him  in  his
handwriting and his endorsement. He further stated that  he  had  sent  ruqa
(Ex.PG) to the Incharge, Police Post,  General  Hospital,  Bhiwani  at  8.00
a.m.  Therefore, Chhattarmal ASI of P.S. Sadar,  Bhiwani  moved  application
Ex.PH before him asking his opinion regarding fitness of Meena Devi to  make
 statement, on which, he opined vide endorsement Ex.PH/1 at  8.45  a.m  that
she was fit to make statement and thereafter  he  referred  the  patient  to
PGIMS, Rohtak vide endorsement Ex.PH/2. He had  recorded  the  statement  of
deceased Meena Ex.PF correctly without  any  addition  thereto  and  on  the
basis of whatever had been stated before him.
12.   The Defence had tried to make a  futile  effort  to  prove  that   Dr.Rajinder Rai  (PW-4)  was  an  interested  witness  because  cousin  of  the deceased and his wife were posted in the  same  Hospital  and,  thus,  undue influence was exercised upon him by them but it was  not  believed  by  both the courts in absence of any evidence on the file  that  alleged  cousin  of the deceased and his   wife were posted in Government Hospital,  Bhiwani  at
the  time   the  deceased  was  medico-legally  examined  at  7.30  a.m   on 14.4.2005.  Contrary to it, evidence was brought on  record  that  aforesaid cousin of the deceased and his wife were  posted  in  some  private  nursing home in Siwani, which was about 70 kilometers away from Bhiwani.
13.   There is another glaring factor in the present case which proves  that
Dr. Rajinder Rai (PW-4) was not under influence of  anyone  because  had  it
been, he or investigating officer Chhattarmal (PW-11) might  not  have  made
any effort to call  the  Magistrate  for  recording  the  statement  of  the
deceased.
The  law  is  well  settled  that  if  the  declaration  is  made
voluntarily and truthfully by a person who is physically in a  condition  to make such statement, then there is  no  impediment  in  relying  on  such  a declaration. 
Such view was taken by this Court in
 Kanaksingh  Raisingh  Rav v. State of Gujarat, (2003) 1 SCC 73 
wherein this Court held:


     “5. ….... The question then is, can a conviction be based primarily on the dying declaration of the deceased in this case? In this regard  we do not think it is necessary for us to discuss the cases cited by  the  learned counsel which are noted herein above because, in  our  opinion,
the law is well settled i.e. if the declaration  is  made  voluntarily
and truthfully by a person who is physically in a  condition  to  make such statement, then there is no  impediment  in  relying  on  such  a declaration. 
In the instant case, the evidence of  PW  5,  the  doctor
 very clearly shows that the deceased was conscious and  was  medically in a fit state to make a statement. It is because of the fact  that  a Judicial Magistrate was not available at that point of  time,  he  was requested to record the statement,  which  he  did.  His  evidence  in regard to the state of mind or the physical condition of the  deceased to make such a declaration has  not  been  challenged  in  the  cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below.
     The next question for our consideration is whether this  statement  is voluntary and truthful. It is not the case of the  defence  that  when she made the statement either she was surrounded by any of  her  close relatives who could have prompted her to make an  incorrect  or  false  statement. In the absence of the same so far as the  voluntariness  of  the statement is concerned, there can be no doubt because the deceased was  free  from  external  influence  or  pressure.  
So  far  as the truthfulness of the statement is concerned,  the  doctor  (PW  5)  has stated that she has made the said statement which, as noted above,  is not challenged in the cross-examination. 
The  deceased  in  her  brief statement has, in clear terms, stated  that  because  of  the  quarrel between her and the accused, the accused had poured kerosene  and  set her on fire which, in our opinion, cannot be doubted.........”


14.   In Ashok Kumar v. State of Rajasthan, (1991)  1  SCC  166  this  Court
noticed that if it was a case of death by burning, entries of injury  report
in the bed head ticket can be construed as dying declaration.  In  the  said
case this Court held:


     “11. Entries in the injury report which have been construed  as  dying
     declaration by the two courts below were severely  criticised  and  it
     was submitted  that  although  dying  declaration  was  admissible  in
     evidence and conviction could be recorded on it without  corroboration
     yet the circumstances in which it was recorded created doubt if it was
     genuine. The  High  Court  for  very  good  reasons  rejected  similar
     arguments advanced before it. We also do not find any substance in it.
     When the deceased was examined  by  Dr  Temani  he  having  found  her
     condition to be serious immediately sent message to the police station
     and  also  requested  for  arranging  for  recording  of   the   dying
     declaration. This is corroborated by the entry in the  record  of  the
     police station. But the Inspector of Police came after 11.00 when  the
     injection of morphine had already  been  administered  to  lessen  the
     agony of the patient  who  thereafter  became  unconscious.  She  was,
     however, as indicated earlier conscious between 10.00 to 11.00  during
     which period the bed head ticket was written  by  Dr  Saxena  and  the
     entries were made on the injury report. The judge did  not  doubt  the
     recording on the bed head  ticket  that  the  deceased  complained  of
     misbehaviour by her brother-in-law. Even the learned counsel could not
     point out any infirmity or reason to discard it except  that  by  mere
     word, brother-in-law it was not established  that  it  was  appellant,
     i.e. the effort was to make out a case of doubt. That could have  been
     possible if that entry could have stood alone. But it stands not  only
     corroborated but clarified by identifying the appellant  by  entry  in
     injury report as the  brother-in-law  who  was  responsible  for  this
     crime. We perused the injury report and we could not find  any  reason
     to doubt its authenticity.”


15.   What we find in  the  present  case  is  that  the  dying  declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4)  was  also  signed  by Manoj (appellant no.1) which indicates that appellant No.1 was present  when statement was recorded.  Nothing on the record to suggest that  any  of  the
relation of the deceased was present to influence Dr. Rajinder Rai (PW-4).
16.   Thus, we find that there  is  no  infirmity  in  the  finding  of  the
Sessions Judge as affirmed by the High Court.
17.   Admittedly, the death of Meena Devi  (deceased)  is  caused  by  burns
i.e. otherwise than under normal circumstances within  seven  years  of  her
marriage.  The complainant (PW-9) father of the deceased has stated that  at
the time of marriage he had given double bed, sofa  set,  T.V.,  cooler  and
other domestic articles, besides, gold ornaments of  4  tolas,  21  utensils
and Rs.2100/- in cash.  However, his daughter  told  him  that  her  in-laws
were not satisfied with those  articles.  When   his  daughter  visited  her
matrimonial home for the second time, all the accused started  taunting  her
and harassing her raising demand for a motor cycle.  She was turned  out  of
her matrimonial home after giving beatings.  Thereafter, she started  living
with him (PW-9) and stayed with him for  14  months.   Then  he  convened  a
panchayat consisting of Sant Man Singh,  Krishan  of  Hetampura  and  others
i.e. his brother Satyawan and his brotherhood from village Khera.   In  that
panchayat, the accused  assured not to harass  Meena  in  future  and   then
accused Mahabir and Chameli came to take her away and  she  was  accordingly
sent to her matrimonial house about 10 months prior  to  her  death.   After
four days, they again started harassing her by  demanding  motor  cycle  and
continued beating her.  His brother Satpal  (PW-10)  has  also  corroborated
his  deposition.  No  mitigating  circumstances  are  found  on  record   to
disbelieve their statements.
18.   In view of such evidence on record  both  the  courts   have  come  to
definite conclusion that soon before her death she was subjected to  cruelty
and harassment by her husband and his relatives in  connection  with  demand
for dowry.  Therefore  all  the  ingredients  are  present  to  convict  the
appellants under Section 304-B of the IPC.  The  prosecution  proved  beyond
reasonable doubts that the appellants  are  guilty  for  the  offence  under
Section 498-A of the IPC.
19.   In these circumstances, we find that the Sessions Judge  has  recorded cogent  and  convincing  reasons  for  convicting  the  appellants  for  the offences under Sections 304-B and 498-A IPC.
20.   So far as conviction of the  appellants  under  Section  302  IPC,  as suggested by  counsel  for  the  State,  we  find  no  wrong  to  alter  the conviction to Section 302 IPC.
21.   In Muthu Kutty and Another v. State  by  Inspector  of  Police,  Tamil
Nadu (2005) 9 SCC 113
this Court held  that  when  it  was  found  that  the
accused were responsible for setting the deceased on fire  and  causing  her
death, Section 302 instead of Section 304-B  was  attracted.
On  facts,  no
prejudice would be caused to accused-appellants of  the  said  case  if  the
conviction is altered to Section 304 Pt. II  on  the  basis  of  conclusions
arrived at by the trial court as they were originally  charged  for  offence
punishable under Section 302 along with Section 304-B IPC.
22.   In the present case,  we  have  noticed  that  after  appreciation  of
evidence, learned Sessions Judge by  judgment  dated  4.9.2006  specifically
held that the prosecution has miserably failed to  prove  its  case  against
all the four accused for the offence under Sections 302 and 406 r/w  Section
34 IPC and, hence, all the  four  accused  were  acquitted  under  the  said
offence.  Against the acquittal of  Mahabir  Singh  the  complainant  (PW-9)
filed an appeal which has been  dismissed  by  the  impugned  judgment.
No
appeal has been preferred by  the  complainant  or  the  State  against  the acquittal of all the accused for the offences under Section 302 and 406  r/w Section 34 IPC. 
The finding of Sessions Judge having reached  finality,  the
question of altering the present sentence under  Section  304-B  to  Section 302 does not arise.
23.   Lastly, it was submitted on  behalf  of  the  appellants  to  consider
reducing the sentence awarded to the appellants from 10  years  to  7  years
which  is  the  minimum  sentence  prescribed  under   Section   304-B   IPC
considering the facts and circumstances of the case.
In the present case  we
find that the appellants were sentenced  for  life  for  the  offence  under
Section 304-B IPC by the trial Court and the High Court  already  considered
the facts and circumstances of the case and reduced the sentence  from  life
imprisonment to 10 years.
24.   We find no other circumstances to reduce it  to  minimum  sentence  of
seven years.  In absence of merit, the appeal is dismissed.
25.   Bail bonds of the appellant nos. 2  and  3  are  cancelled.  Appellant
nos. 2 and 3 are directed to be taken into custody to  serve  out  remainder
of the sentence.

                                            ………………………………………………………………………………J.
                                       (T.S.THAKUR)








                                            ………………………………………………………………………………J.
                            (SUDHANSU JYOTI MUKHOPADHAYA)




NEW DELHI,
JULY 9,2013.





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