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Friday, July 25, 2014

Sec. 498 A . .304 B and 302 I.P.C - ACQUITTED UNDER SEC.498 A, 304 B - No conviction under sec.302 I.P.C. be given on doubting dying declaration - Apex court held that The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. After considering the evidence and the judgments of the Courts below, we are of the considered opinion that the evidence available on record and the dying declaration does not inspire confidence in the mind of this Court to make it the basis for the conviction of the appellants. Apart from this, the High Court basing on the same dying declaration, ought not to have convicted the appellants under Section 302 IPC, when they were acquitted under Section 304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by the High Court. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed by the High Court vide its judgment dated 24th September, 2010 in Criminal Appeal No. 495 of 2005, against the appellants for the offence under Section 302 r/w 34 IPC, is set aside. = UMAKANT & ANR. … APPELLANTS VERSUS STATE OF CHHATISGARH … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743

Sec. 498 A . .304 B and 302 I.P.C - ACQUITTED UNDER SEC.498 A, 304 B - No conviction under sec.302 I.P.C.  be given on  doubting dying declaration - Apex court held that The burden of proof in criminal law is beyond  all  reasonable  doubt. The prosecution has to prove the guilt of the accused beyond all  reasonable doubt and it is also rule of justice in criminal law that if two  views  are possible on the evidence adduced in the case, one pointing to the  guilt  of the accused  and  the  other  towards  his  innocence,  the  view  which  is favourable  to  the  accused  should  be  adopted.   After  considering  the evidence and the judgments of the Courts below, we  are  of  the  considered opinion that the evidence available on  record  and  the  dying  declaration
does not inspire confidence in the mind of this Court to make it  the  basis for the conviction of the appellants.   Apart  from  this,  the  High  Court basing on the same dying  declaration,  ought  not  to  have  convicted  the appellants under Section 302 IPC, when they  were  acquitted  under  Section 304-B and 498-B IPC and Sections 3 and 4 of the  Dowry  Prohibition  Act  by
the High Court. Accordingly, this Criminal Appeal  is  allowed.   The  conviction  and sentence imposed by the High Court vide its judgment dated  24th  September, 2010 in Criminal Appeal No. 495 of 2005,  against  the  appellants  for  the offence under Section 302 r/w 34  IPC,  is  set  aside. =
 certain   guidelines   while
considering a dying declaration:
   1. Dying declaration can be the sole basis of conviction if  it  inspires
      full confidence of the Court.


   2. 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.


   3. Where the  Court  is  satisfied  that  the  declaration  is  true  and
      voluntary,  it  can  base   its   conviction   without   any   further
      corroboration.


   4. 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
      corroborative.  The rule requiring corroboration is merely a  rule  of
      prudence.


   5. Where the dying declaration is suspicious, it should not be acted upon
      without corroborative evidence.


   6. A dying declaration  which  suffers  from  infirmities,  such  as  the
      deceased was unconscious and could never  make  any  statement  cannot
      form the basis of conviction.


   7. Merely because a dying declaration does not contain all the details as
      to the occurrence, it is not to be rejected.


   8. Even if it is a brief statement, it is not to be discarded.


   9. 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.

  10. If after careful scrutiny the Court is satisfied that it is 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 basis of conviction, even if there is no corroboration.

21.    In  the  light  of  the  above  legal  position  that   governs   the
consideration  of  a  dying  declaration,  the  factual  matrix  has  to  be
scrutinised. As already extracted above, in the dying  declaration  Ex.P-13,
the deceased stated before  the  Magistrate  that  the  appellants  demanded
dowry and that the appellants set fire to her and she asked her  brother-in-
law to rescue her, but he had chosen not to do so, and  further  on  hearing
her cries, the neighbours came and extinguished the fire  and  admitted  her
in the hospital.  After she was admitted in the hospital, her  parents  came
and she informed them about the incident.=

      The deceased is said to have stated that when she was pregnant she was
beaten up by the accused and because of which the child died  in  the  womb.
At that time, she had taken treatment in Revival Hospital].  This  statement
is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not  in  Ex.P13
dying declaration.
22.   When we look at the dying declaration, it is not inspiring  confidence
in the mind of this Court and throws  serious  doubt  that  the  same  is  a
product of tutoring by the family members of the  deceased  for  the  reason
that, the sister of the deceased who  was  present  when  the  deceased  was
admitted in the hospital had signed in Ex.P-2 wherein it is stated  that  it
was an accident and nobody has burnt the  deceased,  but  later  she  turned
around and stated that unless she signed on that, they were  told  that  the
deceased would not be treated, and the High Court has taken this  fact  into
consideration, whereas in the dying declaration,  the  deceased  has  stated
that when her parents came to the hospital on 06.08.2003, she  informed   to
the parents for the first time and she had not mentioned that  she  informed
her sister or anybody before that,  but  according  to  the  sister  of  the
deceased, on 02.08.2003, she  was  aware  of  this,  which  shows  that  the
evidence of the witness is not reliable and clouded with doubt.
23.   The other circumstances which draw our attention is when the  deceased
informed her parents on 06.08.2003, it is quite  natural  that  the  parents
will inform the police about the incident, because it is nobody’s case  that
they were restrained in any manner from  informing  the  police.   Even  the
deceased throughout the stay in the hospital for those 11 days had  many  an
occasion to meet the Doctors and other staff of the hospital,  but  she  had
chosen not to give any complaint nor tried to share  her  agony  with  them,
which throws a grave doubt on the genuineness of the dying declaration.   We
have gone through the judgment of  the  High  Court,  where  P.W.7  who  has
specifically deposed that they have tutored the deceased to state  that  she
was burnt by the accused.=
24.   The High Court while considering Ex.P-2 has come to a conclusion  that
the statement given in that one line is contradictory to  one  another.   In
one line, it says that the  injuries  sustained  by  her  are  by  accident.
Nobody has  burnt  her  and  she  burnt  herself.   Hence,  the  High  Court
discarded Ex.P-2.  But, in our considered opinion, the High  Court  did  not
appreciate the same in its proper perspective and interpreted it in a  wrong
way.  What Ex.P-2 states is that it is an accident, and  nobody  has  pushed
her and for that accident, only the deceased is responsible.

The burden of proof in criminal law is beyond  all  reasonable  doubt.
The prosecution has to prove the guilt of the accused beyond all  reasonable
doubt and it is also rule of justice in criminal law that if two  views  are
possible on the evidence adduced in the case, one pointing to the  guilt  of
the accused  and  the  other  towards  his  innocence,  the  view  which  is
favourable  to  the  accused  should  be  adopted.   After  considering  the
evidence and the judgments of the Courts below, we  are  of  the  considered
opinion that the evidence available on  record  and  the  dying  declaration
does not inspire confidence in the mind of this Court to make it  the  basis
for the conviction of the appellants.   Apart  from  this,  the  High  Court
basing on the same dying  declaration,  ought  not  to  have  convicted  the
appellants under Section 302 IPC, when they  were  acquitted  under  Section
304-B and 498-B IPC and Sections 3 and 4 of the  Dowry  Prohibition  Act  by
the High Court.
26.   Accordingly, this Criminal Appeal  is  allowed.   The  conviction  and
sentence imposed by the High Court vide its judgment dated  24th  September,
2010 in Criminal Appeal No. 495 of 2005,  against  the  appellants  for  the
offence under Section 302 r/w 34  IPC,  is  set  aside.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743


REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO.  1424 OF 2012


UMAKANT & ANR.                    …     APPELLANTS

VERSUS

STATE OF CHHATISGARH              …     RESPONDENT


                                  JUDGMENT

N.V. RAMANA, J.


      Aggrieved by the judgment and order dated 24th September, 2010 of  the
Division Bench of the High  Court  of  Chhattisgarh,  Bilaspur  in  Criminal
Appeal No. 495 of 2005  maintaining  their  conviction  and  sentence  under
Section 302 read with Section  34,  IPC,  the  appellants  have  filed  this
appeal by special leave.
2.    Brief history of the case, as per  prosecution  case,  is  that  Anita
Jaiswal (deceased) was married to Umakant (appellant  No.1)  and  after  six
months of the marriage, her husband and in-laws  started  harassing  her  to
bring money from her father whenever she visits her parental home  and  also
made a demand of Rs.50,000/- as dowry.  She was also  subjected  to  torture
and cruelty every now and then by the husband and in-laws.  On  2nd  August,
2003, within one and a half years of her marriage, the  appellant     No.  1
(husband) beat her with an iron rod before night and while she was going  to
take bath in the morning,  he  caught  hold  of  her  and  allegedly  poured
kerosene on her body. Appellant No. 2  (mother-in-law)  set  her  ablaze  by
lighting a match stick. The victim was immediately taken to Revival  Medical
Centre, Bhilai where appellant No. 2 stated to the Doctors that  the  victim
sustained burn injuries due to accident (Ext. P-2)  with  a  chimney  (local
lamp). The victim was treated  at  the  Revival  Medical  Centre  till  13th
August, 2003 on which date, when the condition of  the  victim  was  getting
deteriorated, the Revival Medical Centre  intimated  the  police  about  the
incident vide Ext. P-21. Immediately  thereafter,  F.I.R.  (Ext.  P-24)  was
registered by the ASI, PS Newai (PW23). Investigation was taken  up  by  PWs
26 and 27, the Superintendent  of  Police  and  the  Station  House  Officer
respectively who also seized a bottle of kerosene  oil,  one  wooden  stool,
one iron pipe etc., and a seizure memo was  accordingly  prepared.  On  13th
August, 2003 itself the victim’s dying  declaration  (Ext.  P-13)  was  also
recorded by the Executive Magistrate (PW 12). The victim  was  then  shifted
to  Jawaharlal  Nehru  Hospital  &  Research  Centre,  Bhilai  for   further
treatment. However, on  7th  September,  2003,  during  the  course  of  her
treatment, the victim died.
3.    After the death of the deceased,  investigation  continued,  witnesses
were summoned, inquest was made, dead body was sent for  autopsy,  spot  map
was prepared.  Having recorded statements of witnesses  under  Section  161,
Cr.P.C., charge sheet was filed against the accused (husband,  mother-in-law
and father-in-law). The learned Judicial Magistrate, First  Class  committed
the case to the Court of Session. The learned  Trial  Judge  framed  charges
against the accused under Sections 3 & 4 of Dowry Prohibition Act, 1961  and
under Sections 304B/34, 302/34 and 498-A,  IPC.  In  their  statement  under
Section 313, Cr.P.C. the accused  denied  the  charges  and  claimed  to  be
tried. At the trial, they took the plea that the deceased died as  a  result
of accident of chimney (local lamp) and they have been falsely implicated.
4.     To bring home the charges against the  accused,  the  prosecution  in
all examined 27 witnesses whereas the accused,  in  their  defence  examined
two witnesses.
5.    The Trial Court, after  analyzing  the  statements  of  witnesses  and
keenly considering the material  evidence  came  to  the  opinion  that  the
prosecution had got established its case and the dying declaration (Ext.  P-
13) was also proved from its writer (PW-12). After going through the  entire
process of trial and in the light of various  rulings  of  this  Court,  the
Trial Court came to the conclusion that all the three  accused  were  guilty
of the offences charged against them, except charge under Section  304/B/34,
IPC against father-in-law of  the  deceased.  The  Trial  Court  accordingly
acquitted him of the said charge  and  sentenced  all  the  accused  in  the
following terms.
        Accused No.1-Umakant (Appellant No.1-husband of the deceased)
|Under Section 3 of   |R.I. for 5 years and fine of Rs.2000/-, in   |
|Dowry Prohibition    |default, additional RI for one year          |
|Act, 1961            |                                             |
|Under section 4 of   |R.I. for 1 year and fine of Rs.1000/-, in    |
|Dowry Prohibition    |default, additional RI for six months.       |
|Act, 1961            |                                             |
|Under Section 498-A  |RI for 3 years and fine of Rs.2,000/-, in    |
|of IPC               |default, additional RI for six months.       |
|Under Section 304-B  |Life imprisonment and fine of Rs.2,000/-, in |
|of IPC               |default, additional RI for one year          |
|Under Section 302/34,|Life imprisonment and fine of Rs.2,000/-, in |
|IPC                  |default, additional R.I. for one year.       |

         Accused No. 2-Yashoda (Appellant No. 2-mother-in-law of the
                                  deceased)
|Under Section 3 of   |R.I. for 5 years and fine of Rs.1000/-, in   |
|Dowry Prohibition    |default, additional RI for six months.       |
|Act, 1961            |                                             |
|Under section 4 of   |R.I. 6 month and fine of Rs.1000/-, in       |
|Dowry Prohibition    |default, additional RI for one month.        |
|Act, 1961            |                                             |
|Under Section 498-A  |RI for 3 years and fine of Rs.1,000/-, in    |
|of IPC               |default, additional RI for six months.       |
|Under Section 304-B  |Life imprisonment and fine of Rs.1,000/-, in |
|of IPC               |default, additional RI for six months.       |
|Under Section 302/34 |Life imprisonment and fine of Rs.1,000/-, in |
|of IPC               |default, additional RI for six months.       |

         Accused No. 3 – Om Prakash (father-in-law of the deceased)

|Under Section 3 of   |R.I. for 5 years and fine of Rs.2,000/-, in  |
|Dowry Prohibition    |default, additional RI for six months.       |
|Act, 1961            |                                             |
|Under section 4 of   |R.I. for 1 year and fine of Rs.1,000/-, in   |
|Dowry Prohibition    |default, additional RI for two months.       |
|Act, 1961            |                                             |
|Under Section 498-A  |RI for 3 years and fine of Rs.2,000/-, in    |
|of IPC               |default, additional RI for six months.       |

6.    While dealing with the appeal filed by the  accused,  the  High  Court
formed the opinion  that  there  was  not  enough  evidence  to  uphold  the
conviction and sentence of the appellants as  awarded  by  the  Trial  Court
under  Sections  498-A,  304-B,  IPC  and  Sections  3  &  4  of  the  Dowry
Prohibition Act, 1961. Therefore, the High Court acquitted all  the  accused
from the charges against the aforementioned Sections. But, placing  reliance
solely on the dying declaration (Ext. P-13), the High Court thought  it  fit
to convict the appellants under Section 302 read with  Section  34,  IPC  on
the  basis  of  dying  declaration  itself.  Accordingly,  the  High   Court
maintained the conviction and sentence awarded by the  Trial  Court  against
the appellants under Section 302 read with Section 34, IPC.
7.    In view of the above conviction and sentence maintained  by  the  High
Court, the appellants approached this Court in  this  appeal  finding  fault
with the decision of the High Court, which is impugned herein.
8.    Learned counsel for the appellants contended  that  the  Courts  below
have dealt with the case without proper application of mind and  there  were
several discrepancies and contradictories in the  statements  of  witnesses.
Normally, before convicting  an  accused  under  Section  302,  IPC,  Courts
provide so many safeguards to the  defence,  whereas  in  the  present  case
those safeguards have not been provided. Thus, entire process of  trial  has
been vitiated and led to the miscarriage of justice against the  appellants.
He also contended that when the High Court was of the opinion that there  is
no cogent evidence to sustain the order of conviction passed  by  the  Trial
Court under Sections 498A, 304B, IPC  and  Sections  3  &  4  of  the  Dowry
Prohibition Act, 1961, the  dying  declaration  also  ought  not  have  been
relied upon for  punishing  the  accused  under  Section  302/34,  IPC.  The
alleged dying declaration was a product  of  tutoring  and  not  voluntarily
given by the deceased, hence it is not trustworthy.  He,  therefore,  argued
that the conviction of appellants under Section 302/34, IPC.  is  completely
erroneous, misconceived and deserves to be set aside.
9.    On the contrary, learned counsel for  the  State  submitted  that  the
impugned judgment was rendered by the High Court after a  thorough  analysis
of the entire case with scrutiny of the evidence of all material  witnesses.
Considering the facts  and  circumstances  of  the  case,  particularly  the
nature of cruelty and torture caused by the appellants to the  victim  which
stands  proved  by  the  dying  declaration,  the  High  Court  has  rightly
convicted and sentenced the appellants and there is  no  illegality  in  the
impugned order. He therefore submitted that there is no ground  calling  for
interference by this Court and the appeal deserves to be dismissed.
10.   We have heard learned counsel  for  the  parties  and  carefully  gone
through the records of both the Trial Court as well as the High Court.
11.   Before we deal with the judgment of the High Court which  is  impugned
before us, whereby it  has  acquitted  the  accused  of  the  charges  under
Section 498-A, 304-B IPC and Sections 3 & 4 of  the  Dowry  Prohibition  Act
and convicted them for the offence under  Section  302  IPC,  curiously  the
basis for acquittal under the other offences and conviction of  the  accused
under Section 302 IPC is based on the  dying  declaration  of  the  deceased
which is marked as Ex.P-13.   For better appreciation,  we  shall  refer  to
the important facts of the case.  As per the case of  the  prosecution,  the
deceased was admitted  in  the  hospital  i.e.  Revival  Medical  Centre  on
02.08.2003 with burn injuries.  The deceased when enquired by the Doctor  as
to how she sustained burn injuries, she informed him that  she  caught  fire
accidentally.  This version of the deceased, was recorded by the Doctor,  in
the presence of her sister.  Her  sister  and  brother-in-law  gave  consent
letter, which was marked  as  Ex.P-2,  and  it  reveals  that  the  deceased
suffered burn  injuries  accidentally  and  the  deceased  Anita  had  burnt
herself.  Nobody had burnt her. When the Doctor asked the  deceased  several
times, she gave the same answer.  On 06.08.2003, her parents  also  came  to
Bhilai and stayed with her.  She remained in the hospital  till  10.00  p.m.
of 13.08.2003. Thereafter, as her condition deteriorated,  she  was  shifted
to another hospital.   On  13.08.2003,  for  the  first  time,  Police  were
informed about the  incident.   On  that  day,  her  dying  declaration  was
recorded by the Magistrate who was later examined as P.W.12.   The  deceased
succumbed to the burn injuries on 07.09.2003.
12.   The trial Court basing on the evidence available on  record  convicted
and sentenced the appellants under Section 498-A, 304-B, 302 r/w 34 IPC  and
Sections 3 and 4 of the Dowry Prohibition Act.  While the High Court  though
acquitted the accused under Section 498-A and 304-B IPC and Sections  3  and
4 of the Dowry Prohibition Act, but found them guilty for the offence  under
Sections 302 r/w 34 IPC and confirmed the  sentence  imposed  by  the  trial
Court on that count.
13.   We have given our anxious consideration to the judgment  of  the  High
Court which is impugned before us, to find out the legality or otherwise  of
the judgment  of  conviction  and  order  of  sentence  passed  against  the
appellants for the offence under Section 302 r/w 34 IPC.   The  whole  basis
for the High Court to convict and sentence the  accused  under  Section  302
IPC is the dying declaration recorded by the Magistrate which was marked  as
Ex.P-13.  It would be appropriate to extract the same, which reads:
    “Question: Whether would you able to give your statement?


    Answer: Yes.


    Q: What is your name? What is the name of your husband?  Where  do  you
    live at? Please tell your complete name.


    A: My name is Anita Jaiswal.  Umakant is the name  of  my  husband.   I
    reside in Marauda Bhilai.


    Q: Who had admitted you at this place and when they had admitted you?


    A: My husband and mother-in-law have admitted me at this place.   I  do
    not remember the date of my admission.  I  have  been  burnt  therefore
    they have admitted me.


    Q: How you were burnt, the incident is of which date, please  tell  the
    whole description.


    A: My mother-in-law was committing cruelty against me, whenever I  went
    my Mayeka she used to tell me for taking Rs.50,000/-  from  my  Mayeka.
    We are total four sisters and four brothers.  Whenever I returned  from
    my Mayeka, upon not taking the money she  used  to  torture  me  badly,
    recently some mothers back while I went to Gujarat, my mayeka,  when  I
    came back my Sasural then they started telling about  the  money.   One
    day prior to the date of the incident my husband had heavily beaten me,
    he beaten me from the Pirha (wooden structure) and from the  iron  rod,
    on the next day to that at about 8.00 a.m. after holding me my  husband
    poured kerosene oil over me and after lit up a match stick my mother-in-
    law thrown the same at me, after becoming frightened, I held the  hands
    of my Jeth, while my Jeth also started burning then after  giving  jolt
    at me, he got me fell down, the ladies residing in the back side of  my
    residence arrived there and they  changed  my  clothes  after  than  by
    arranging a temp, I got admitted in the hospital.


    Q: Whether you did not tell your parents that your husband and  mother-
    in-law were harassing you?


    A: After the marriage, I visited Mayeka for three times,  then  on  the
    third occasion while I had gone to Mayeka then I  had  told  my  father
    then my father had told me that presently his position  was  not  good,
    after managing the money as earliest he would sent the  money.   I  had
    told abiout the cruelty of my husband and mother-in-law.


    Q: Since how may days from  the  marriage  they  have  been  committing
    cruelty?  You have been burnt at which body parts?


    A: They have been harassing me since 4 -5 months  after  the  marriage.
    They were committing cruelty for the dowry.  My whole body parts  below
    the neck have been burnt.


    Q: Whether you want to tell anything more?


    A: No”.

14.   According to the High Court, Ex.P-2, the alleged consent letter  given
by sister and brother-in-law, which says that  burn  injuries  sustained  by
the deceased was a case of  accident  and  Anita  had  burnt  herself,  runs
contrary to each other, because in the case of accident,  the  patient  will
burn herself, but if she  burnt  herself,  then  it  cannot  be  a  case  of
accident.  Hence,  the  High  Court  disbelieved  Ex.P-2.   The  High  Court
further observed that not giving the information about the incident  by  the
Revival Medical Centre to the  police  shows  that  the  hospital  staff  in
connivance with the accused, treated the deceased  without  informing  about
the incident to the police.
15.   Another reason given by the High  Court  for  convicting  the  accused
under Section 302, IPC is that, as per the dying declaration,  the  deceased
had stated that when her mother-in-law and husband  lit  fire  to  her,  she
asked the brother-in-law and caught hold of him, and at that time,  he  also
sustained burn injuries, which is supported by the evidence  of  the  Doctor
P.W.13, who has deposed that the injury on the hands of  the  brother-in-law
P.W.14 is possible if a person who is  in  flames  catch  holds  of  another
person.  The High Court disbelieved  the  evidence  of  Doctor  Vijay  Kumar
Sharma, which is in favour of the accused, basing on the  contradictions  in
his evidence with regard to the nature of injuries and not  informing  about
the incident to the police.
16.   Finally, the High Court convicted and sentenced  the  accused,  basing
on  the  dying  declaration  that  the  deceased  was  not  having   cordial
relationship with the accused.  The appellant No.1 poured kerosene oil  upon
the  deceased  and  appellant  No.2  had  set  her  ablaze.  As  the   dying
declaration inspires confidence, it is trustworthy and drew  inference  that
the appellants Umakanth and Yashoda poured kerosene oil upon  the  deceased,
set her afire and caused her death.   However,  the  High  Court  felt  that
there is no cogent evidence to convict the accused under Section  498-A  and
304-B IPC and Sections 3 and 4 of the Dowry Prohibition Act.
17.   Now the issue that falls for consideration before us  is  whether  the
High Court was right in convicting and sentencing the accused under  Section
302 IPC basing on the dying declaration of the deceased?
18.   The philosophy of law  which  signifies  the  importance  of  a  dying
declaration is based on the maxim “nemo moritusus prasumitus mennre”,  which
means, “no one at the time of death is presumed to lie and he will not  meet
his maker with a lie in his mouth”.   Though  a  dying  declaration  is  not
recorded in the Court in the presence of accused nor it  is  put  to  strict
proof of cross-examination by the accused, still it is admitted in  evidence
against the  general  rule  that  hearsay  evidence  is  not  admissible  in
evidence.  The dying declaration does not even require any corroboration  as
long as it inspires confidence in the mind of the Court and that it is  free
from any form of tutoring. At the same time, dying  declaration  has  to  be
judged and appreciated in  the  light  of  surrounding  circumstances.   The
whole point in giving lot of credence and importance to the piece  of  dying
declaration, deviating from the rule of evidence is  that  such  declaration
is made by the victim when he/she is on the verge of death.
19.   In spite of all the importance attached and the sanctity given to  the
piece of dying declaration, Courts have to be very careful  while  analyzing
the truthfulness, genuineness of the dying declaration and should come to  a
proper conclusion that the dying declaration is not a product  of  prompting
or tutoring.
20.   The legal position about the admissibility of a dying  declaration  is
settled by this  Court  in  several  judgments.   This  Court  in  Atbir  v.
Government of NCT of Delhi - 2010 (9) SCC 1, taking into  consideration  the
earlier judgments of this Court in Paniben v. State of Gujarat  -  1992  (2)
SCC 474 and another judgment of this Court  in  Panneerselvam  v.  State  of
Tamilnadu  -  2008  (17)  SCC  190  has  given  certain   guidelines   while
considering a dying declaration:
   1. Dying declaration can be the sole basis of conviction if  it  inspires
      full confidence of the Court.


   2. 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.


   3. Where the  Court  is  satisfied  that  the  declaration  is  true  and
      voluntary,  it  can  base   its   conviction   without   any   further
      corroboration.


   4. 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
      corroborative.  The rule requiring corroboration is merely a  rule  of
      prudence.


   5. Where the dying declaration is suspicious, it should not be acted upon
      without corroborative evidence.


   6. A dying declaration  which  suffers  from  infirmities,  such  as  the
      deceased was unconscious and could never  make  any  statement  cannot
      form the basis of conviction.


   7. Merely because a dying declaration does not contain all the details as
      to the occurrence, it is not to be rejected.


   8. Even if it is a brief statement, it is not to be discarded.


   9. 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.

  10. If after careful scrutiny the Court is satisfied that it is 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 basis of conviction, even if there is no corroboration.

21.    In  the  light  of  the  above  legal  position  that   governs   the
consideration  of  a  dying  declaration,  the  factual  matrix  has  to  be
scrutinised. As already extracted above, in the dying  declaration  Ex.P-13,
the deceased stated before  the  Magistrate  that  the  appellants  demanded
dowry and that the appellants set fire to her and she asked her  brother-in-
law to rescue her, but he had chosen not to do so, and  further  on  hearing
her cries, the neighbours came and extinguished the fire  and  admitted  her
in the hospital.  After she was admitted in the hospital, her  parents  came
and she informed them about the incident.
      The deceased is said to have stated that when she was pregnant she was
beaten up by the accused and because of which the child died  in  the  womb.
At that time, she had taken treatment in Revival Hospital].  This  statement
is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not  in  Ex.P13
dying declaration.
22.   When we look at the dying declaration, it is not inspiring  confidence
in the mind of this Court and throws  serious  doubt  that  the  same  is  a
product of tutoring by the family members of the  deceased  for  the  reason
that, the sister of the deceased who  was  present  when  the  deceased  was
admitted in the hospital had signed in Ex.P-2 wherein it is stated  that  it
was an accident and nobody has burnt the  deceased,  but  later  she  turned
around and stated that unless she signed on that, they were  told  that  the
deceased would not be treated, and the High Court has taken this  fact  into
consideration, whereas in the dying declaration,  the  deceased  has  stated
that when her parents came to the hospital on 06.08.2003, she  informed   to
the parents for the first time and she had not mentioned that  she  informed
her sister or anybody before that,  but  according  to  the  sister  of  the
deceased, on 02.08.2003, she  was  aware  of  this,  which  shows  that  the
evidence of the witness is not reliable and clouded with doubt.
23.   The other circumstances which draw our attention is when the  deceased
informed her parents on 06.08.2003, it is quite  natural  that  the  parents
will inform the police about the incident, because it is nobody’s case  that
they were restrained in any manner from  informing  the  police.   Even  the
deceased throughout the stay in the hospital for those 11 days had  many  an
occasion to meet the Doctors and other staff of the hospital,  but  she  had
chosen not to give any complaint nor tried to share  her  agony  with  them,
which throws a grave doubt on the genuineness of the dying declaration.   We
have gone through the judgment of  the  High  Court,  where  P.W.7  who  has
specifically deposed that they have tutored the deceased to state  that  she
was burnt by the accused.
24.   The High Court while considering Ex.P-2 has come to a conclusion  that
the statement given in that one line is contradictory to  one  another.   In
one line, it says that the  injuries  sustained  by  her  are  by  accident.
Nobody has  burnt  her  and  she  burnt  herself.   Hence,  the  High  Court
discarded Ex.P-2.  But, in our considered opinion, the High  Court  did  not
appreciate the same in its proper perspective and interpreted it in a  wrong
way.  What Ex.P-2 states is that it is an accident, and  nobody  has  pushed
her and for that accident, only the deceased is responsible.
25.   The burden of proof in criminal law is beyond  all  reasonable  doubt.
The prosecution has to prove the guilt of the accused beyond all  reasonable
doubt and it is also rule of justice in criminal law that if two  views  are
possible on the evidence adduced in the case, one pointing to the  guilt  of
the accused  and  the  other  towards  his  innocence,  the  view  which  is
favourable  to  the  accused  should  be  adopted.   After  considering  the
evidence and the judgments of the Courts below, we  are  of  the  considered
opinion that the evidence available on  record  and  the  dying  declaration
does not inspire confidence in the mind of this Court to make it  the  basis
for the conviction of the appellants.   Apart  from  this,  the  High  Court
basing on the same dying  declaration,  ought  not  to  have  convicted  the
appellants under Section 302 IPC, when they  were  acquitted  under  Section
304-B and 498-B IPC and Sections 3 and 4 of the  Dowry  Prohibition  Act  by
the High Court.
26.   Accordingly, this Criminal Appeal  is  allowed.   The  conviction  and
sentence imposed by the High Court vide its judgment dated  24th  September,
2010 in Criminal Appeal No. 495 of 2005,  against  the  appellants  for  the
offence under Section 302 r/w 34  IPC,  is  set  aside.   Consequently,  the
appellants shall be released forthwith, if they  are  not  required  in  any
other case.

                            …………………………………………J.
                            (DIPAK MISRA)




                            ………………………………………….J.
                            (N.V. RAMANA)


NEW DELHI,
JULY 01,  2014

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