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.
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
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
