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Saturday, February 28, 2015

whether the alleged Dying Declaration attracts authenticity. Since the prosecution has succeeded in showing/proving by preponderance of probability that a dowry death has occurred, the burden of proving innocence has shifted to the accused. It appears to us to be unexceptionable that whenever a person is brought to a hospital in an injured state which indicates foul-play, the hospital authorities are enjoined to treat it as a medico-legal case and inform the police. If the doctor, who has attended the injured, is of the opinion that death is likely to ensue, it is essential for him to immediately report the case to the police; any delay in doing so will almost never be brooked. The police in turn should be alive to the need to record a declaration/statement of the injured person, by pursuing a procedure which would make the recording of it beyond the pale of doubt. This is why an investigating officer (I.O.) is expected to alert the jurisdictional Magistrate of the occurrence, who in turn should immediately examine the injured. When this procedure is adopted, conditional on the certification of a doctor that the injured is in a fit state to make a statement, a Dying Declaration assumes incontrovertible evidentiary value. We cannot conceive of a more important duty cast on the Magistrate, since the life & death of a human being is of paramount importance. We think that only if it is impossible for the Magistrate to personally perform this duty, should he depute another senior official. Non-adherence to this procedure would needlessly and avoidably cast a shadow on the recording of a Dying Declaration. The prosecution, therefore, would be expected to prove that every step was diligently complied with. The prosecution would have to produce the doctor or the medical authority to establish that on the examination of the injured/deceased, the police had been immediately informed. The I.O. who was so informed would then have to testify that he alerted the Magistrate, on whose non- availability, some responsible person was deputed for the purpose of recording the Dying Declaration. We are not in any manner of doubt that where medical opinion is to the effect that a person is facing death as a consequence of unnatural events, the responsibility of the Magistrate to record the statement far outweighs any other responsibility. There may be instances where there was no time to follow this procedure, but that does not seem to be what has transpired in the case in hand. In cases where some other person is stated to be recipient of a Dying Declaration, doubts may reasonably arise. 10 Since the burden of proving innocence beyond reasonable doubt shifts to the Accused in the case of a dowry death, as it has in the present case, it was imperative for the defence to prove the sequence of events which lead to the recording of the alleged Dying Declaration by the Tehsildar DW1. This burden has not even been faintly addressed. It appears that at the time of seeking bail the accused had requested the Sessions Court to call for the alleged Dying Declaration. Keeping in perspective that none of the Accused was present when the deceased was receiving medical treatment in the hospital, or when the Dying Declaration was allegedly recorded, or at the time of death, or even at the time of cremation, the manner in which the Accused learnt of the existence of the Dying Declaration has not been disclosed. The statement of the I.O. also does not clarify the position; he has stated that he learnt of the existence of the Dying Declaration from the relatives of the deceased. On the application of Sher Singh, the burden and necessity of proving this sequence of events stood transferred to the shoulders of the Accused since Section 304B of the IPC had been attracted. The I.O. has deposed that all the Accused, including the late father-in-law, Gorakh Nath, had absconded after the incident. In fact, in the cross-examination, the I.O. states that - "there is no reliable information about the Dying Declaration... On keeping this information that the Dying Declaration of Vijay Lakshmi was recorded by the Magistrate I did not consider any need of this thing". Neither the Doctor DW2 who had allegedly certified that the deceased was in a fit condition to make a statement nor the Tehsildar who had allegedly written down the alleged Dying Declaration has stated the manner in which the Tehsildar had been conscripted or located to perform this important recording. The Dying Declaration appears to have mysteriously popped up and referred to at the time of praying for bail. The chain or sequence of events which lead to its recording remains undisclosed. In his statement, the Tehsildar has not clarified the manner in which he happened to record the Dying Declaration and the timing of its transmission to the Court. Since the onus of proof had shifted to the Accused, this alleged sequence of events should have been proved beyond reasonable doubt by them. We may emphasise that the Tehsildar as well as the Doctor who allegedly certified that the deceased was in a fit state to make the Dying Declaration has been produced by the defence. The Doctor should have spoken of the sequence of events in which the Tehsildar came to record the Dying Declaration. The alleged exculpating Dying Declaration is, therefore, shrouded in suspicion and we have not been persuaded to accept that it is a genuine document. The defence has failed to comply with Section 113B of the Evidence Act. The Accused being charged of the commission of a dowry death ought to have entered the witness box themselves. The Accused were present on the scene at the time of the occurrence, which turned out to be fatal, and that added to their responsibility to give a credible version of their innocence in the dowry death.



                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS.1279-1281 OF 2011



RAMAKANT MISHRA @ LALU ETC.                  APPELLANTS

                                     VS.

STATE OF U.P.                                            RESPONDENT



                               J U D G M E N T



VIKRAMAJIT SEN, J.


1     These Appeals assail the Judgment  dated  13.07.2010  of  the  learned
Single Judge, High Court  of  Judicature  at  Allahabad,  Lucknow,  who  had
affirmed the conviction of the Appellants and the sentencing under  Sections
498A and 304B of the IPC pronounced by  the  VIIIth  Additional  District  &
Sessions Judge, Faizabad on 15.4.1999.  The essay, therefore, is to  reverse
the concurrent findings and sentence of the Courts below.

2     The endeavour of the learned counsel  for  the  Appellants  is  almost
entirely predicated on an exculpatory Dying Declaration  allegedly  made  by
the deceased, who was the wife of the 1st Appellant  and  the  sister-in-law
of the 2nd Appellant and the 3rd Appellant.    The  deceased  Vijay  Lakshmi
was married to the 1st Appellant, Ramakant Mishra, in  1989  and  from  that
wedlock a son named Sonu was begotten.    Sonu  has  been  living  with  his
maternal grandparents who have cared for all his requirements,  without  any
efforts on the part of the  Accused  towards  taking  over  his  custody  or
making any contribution for his expenses.  The prosecution has  shown/proved
that due to non-fulfillment of demands of dowry the deceased  was  harassed,
tortured and treated with cruelty.   The exact date of the marriage  is  not
forthcoming, but it avowedly took place much  before  the  expiry  of  seven
years of  the  unnatural  death  of  Vijay  Lakshmi.    On  the  morning  of
21.9.1994 she has been shown by the prosecution to have  been  put  on  fire
after sprinkling kerosene oil on her body.   The husband/Appellant No.1  and
the  other  Accused  appear  to  have  admitted  her  in  a  hospital   and,
thereafter, disappeared from the  scene,  not  even  being  bothered  to  be
present at her cremation.  She succumbed to 90-95 per cent burn injuries  at
11.30 p.m. that very day.    Jagdamba, Appellant No.2 and brother-in-law  of
the deceased, has stated that when the deceased was preparing  milk  on  the
chulah, Sonu toppled the container of kerosene oil and its contents  spilled
on the floor; in her endeavour to pick up her son Sonu, her saree  allegedly
got caught in the chulah, resulting in  the  saree  catching  fire  and  her
receiving 90-95 per cent burns.   In the Impugned Order it  has  been  noted
that the opinion of the Doctor was that death resulted from  burn  injuries.
The Chargesheet was submitted against four Accused named in the FIR, one  of
whom (the father-in-law of the deceased) has died.

3     Very recently, this Court had the opportunity of interpreting  Section
304B of the IPC in Criminal Appeal No.1592 of 2011,  titled  Sher  Singh  v.
State of Haryana, [reported in (2015) 1 SCR 29] which was  authored  by  one
of us (Vikramajit Sen,J.). Succinctly stated, it had been held therein  that
the use of word 'shown' instead of 'proved' in Section 304B  indicates  that
the onus cast on the prosecution would stand satisfied on  the  anvil  of  a
mere preponderance of probability.  In other words, 'shown' will have to  be
read up to mean  'proved'  but  only  to  the  extent  of  preponderance  of
probability.   Thereafter, the word 'deemed' used in that Section is  to  be
read down  to  require  an  accused  to  prove  his  innocence,  but  beyond
reasonable doubt.  The 'deemed' culpability of the accused leaving  no  room
for the accused to prove innocence was, accordingly, read down to  a  strong
'presumption' of his culpability.   However,  the  accused  is  required  to
dislodge this presumption by proving his innocence beyond  reasonable  doubt
as distinct from preponderance of possibility.

4     In harmony with the ratio of Sher Singh, so far as  the  present  case
is concerned, there can be no cavil that the prosecution  has  'shown'  that
Section 304B stands attracted since the death of the  wife  occurred  within
seven years of the solemnization of the marriage;  indubitably,  it  was  an
unnatural death.  It has also come in evidence that  immediately  after  her
marriage a demand for a scooter was  made  and  this  demand  recurred  with
regularity.   It is in  evidence  that  about  fifteen  days  prior  to  the
unnatural death of the hapless young wife, her  Grandfather  PW1  first  did
not accede to the request of the Accused to send the deceased/victim to  her
 matrimonial house because of their harassment and cruelty towards  her  for
not meeting their demands of dowry.   Only  when  the  Accused  assured  her
Grandfather that she would not be ill-treated, that she  was  sent  back  to
her matrimonial house. The statement of the Mother PW2 is also to  the  same
effect.   We are not persuaded, therefore, to hold that there  was  no  live
link between the dowry demand  and  the  death  or  that  the  Accused  have
succeeded in proving that  the  demand,  if  any,  was  of  a  much  earlier
vintage, on which count no support can  be  rallied  from  the  judgment  in
Tarsem Singh  v.  State  of  Punjab  (2008)  16  SCC  155.   Therefore,  the
requirement of Section 304B of the IPC that the dowry demand should be  made
soon before the death stands satisfied. Accordingly, it appears to  us  that
the prosecution has succeeded in  showing,  or  proving  prima  facie,  that
dowry demands had been made by the Accused even shortly before the death  of
the deceased.

5     The defence has rested very  heavily  nay,  almost  entirely,  on  the
alleged Dying Declaration attributed to the deceased. The  admissibility  of
a Dying Declaration as a piece  of  evidence  in  a  Trial  is  governed  by
Section 32(1) of the Evidence Act, 1872. Section 32, as a whole,  enunciates
the exceptions to  the  rule  of  non-admissibility  of  hearsay  evidences,
eventuated out of necessity to give relevance to the statements  made  by  a
person whose attendance cannot be procured for  reasons  stipulated  in  the
section. Postulating the essential ingredients to define what exactly  would
constitute a hearsay is an arduous task, and since  we  are  only  concerned
with one of its exceptions, we  should  forbear  entering  into  the  entire
arena. The risks while admitting a  Dying  Declaration  and  the  statements
falling within the domain of Section 32(1) run higher in contrast  to  other
sundry evidences, and this entails a huge  bearing  on  their  admissibility
and credibility. Such statements are neither made on oath nor the  maker  of
the statement would be available for cross-examination  nor  are  they  made
under the influence of the supremacy and the solemnity  of  the  court-room.
This is the reason why this Court has consistently underlined the  necessity
to examine this specie of  evidence  with  great  circumspection  and  care.
However, once a Dying Declaration is held to be  authentic,  inspiring  full
confidence beyond the pale of doubt,  voluntary,  consistent  and  credible,
barren of tutoring, significant sanctity is  endowed  to  it;  such  is  the
sanctitude that it can even be the exclusive  and  the  solitary  basis  for
conviction without seeking any  corroboration.   At  this  juncture,  it  is
worthwhile noting that the sanctity attached to a Dying Declaration  springs
up from the rationale that a person genuinely under the  sense  of  imminent
death would speak only the truth.  In addition  to  the  Dying  Declaration,
which is only one of the species of the genus of Section 32(1), there  could
be other statements, written or verbal,  which  also  would  be  encompassed
within the sweep of this section, and at this point the  Indian  law  drifts
from the English law. This is further evident from the usage of  phraseology
in the section, embracing not only statements made about  "cause  of  death"
but also about "any of the circumstances of the transaction  which  resulted
in the death", whether or not the person  making  the  statement  was  under
"expectation of death". These statements could be in the form of  a  suicide
note, a letter, a sign or a signal, or a product of any  reliable  means  of
communication; their  genuineness  and  credibility  shall,  of  course,  be
reckoned  by  the  Court  entertaining  the  concerned   matter.   A   Dying
Declaration enjoys a higher level of credence vis--vis any other  statement
abovementioned, which is  on  account  of  the  former  being  made  in  the
"contemplation of death". "Contemplation of death" is the primal  factor  to
segregate Dying Declarations from other statements.   But  no  hard-and-fast
rule can be laid down to confine the contemplation within the  circumference
of few hours or a few days in which death of  the  maker  of  the  statement
must happen so as to  elevate  that  statement  to  the  level  of  a  Dying
Declaration. Moreover, the  state  of  mind  of  the  maker  would  also  be
material in discerning completely as to whether the maker was  mentally  fit
to  make  the  statement  and  whether  the  maker   actually   could   have
contemplated death.

6      Definition of this legal concept  found  in  Black's  Law  Dictionary
(5th Edition) justifies reproduction:  Dying Declarations - Statements  made
by a person who is lying at the point of death,  and  is  conscious  of  his
approaching death, in reference to the  manner  in  which  he  received  the
injuries of which he is dying, or other immediate cause of  his  death,  and
in reference to the person who inflicted such  injuries  or  the  connection
with such injuries of a  person  who  is  charged  or  suspected  of  having
committed them; which statements are admissible in evidence in a  trial  for
homicide (and occasionally, at least in some jurisdictions, in other  cases)
where the killing of the declarant is the crime charged  to  the  defendant.
Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.    Generally,
the admissibility of such declarations is limited  to  use  in  prosecutions
for homicide; but is  admissible  on  behalf  of  accused  as  well  as  for
prosecution.  In a  prosecution  for  homicide  or  in  a  civil  action  or
proceeding, a statement made by a declarant while believing that  his  death
was imminent, concerning the cause or circumstances of what he  believed  to
be his impending death is not excluded by  the  hearsay  rule.   Fed.Evid.R.
804(b)(2).

7      When a person makes a statement while being  aware  of  the  prospect
that his death is  imminent  and  proximate,  such  a  statement  assumes  a
probative value which is almost unassailable, unlike other statements  which
he may have made earlier, when death was not lurking around, indicating  the
cause of his death.   That is to say that a person might  be  quite  willing
to implicate an innocent person but would not do so when death  is  knocking
at his door.  That is why a Dying Declaration, to  conform  to  this  unique
specie, should have been made when death was in  the  contemplation  of  the
person making the statement/declaration.

8      In the case before us, the statement, if made by the deceased,  would
qualify to be treated as a Dying Declaration because  she  was  admitted  in
the hospital, having sustained 90-95 per cent burn injuries, and because  of
this grave burn injuries, she would be  expecting  to  shortly  breathe  her
last.


9     The central question, however,  remains  as  to  whether  the  alleged
Dying  Declaration  attracts  authenticity.  Since   the   prosecution   has
succeeded in showing/proving by preponderance of probability  that  a  dowry
death has occurred, the burden of  proving  innocence  has  shifted  to  the
accused.   It appears to us to be unexceptionable that whenever a person  is
brought to a hospital in an injured state  which  indicates  foul-play,  the
hospital authorities are enjoined to treat it as  a  medico-legal  case  and
inform the police.    If the doctor, who has attended  the  injured,  is  of
the opinion that death is likely to  ensue,  it  is  essential  for  him  to
immediately report the case to the  police;  any  delay  in  doing  so  will
almost never be brooked.  The police in turn should be alive to the need  to
record  a  declaration/statement  of  the  injured  person,  by  pursuing  a
procedure which would make the recording of it beyond  the  pale  of  doubt.
This is why an  investigating  officer  (I.O.)  is  expected  to  alert  the
jurisdictional Magistrate of the occurrence, who in turn should  immediately
examine the injured.  When this procedure is  adopted,  conditional  on  the
certification of a doctor that the injured is in  a  fit  state  to  make  a
statement, a Dying Declaration assumes incontrovertible  evidentiary  value.
  We cannot conceive of a more important duty cast on the Magistrate,  since
the life & death of a human being is  of  paramount  importance.   We  think
that only if it is impossible for the Magistrate to personally perform  this
duty, should he depute  another  senior  official.   Non-adherence  to  this
procedure would needlessly and avoidably cast a shadow on the  recording  of
a Dying Declaration.   The prosecution,  therefore,  would  be  expected  to
prove that every step was diligently complied with.  The  prosecution  would
have to produce the doctor or the medical authority  to  establish  that  on
the examination of the injured/deceased, the  police  had  been  immediately
informed.  The I.O. who was so informed would then have to testify  that  he
alerted the Magistrate, on whose non- availability, some responsible  person
was deputed for the purpose of recording the Dying Declaration.  We are  not
in any manner of doubt that where medical opinion is to the  effect  that  a
person  is  facing  death  as  a  consequence  of  unnatural   events,   the
responsibility of the Magistrate to record the statement far  outweighs  any
other responsibility.  There may be instances where there  was  no  time  to
follow this procedure, but that does not seem to be what has  transpired  in
the case in hand.   In cases  where  some  other  person  is  stated  to  be
recipient of a Dying Declaration, doubts may reasonably arise.

10    Since the burden of proving innocence beyond reasonable  doubt  shifts
to the Accused in the case of a dowry death, as it has in the present  case,
it was imperative for the defence to prove  the  sequence  of  events  which
lead to the recording of the alleged  Dying  Declaration  by  the  Tehsildar
DW1.   This burden has not even been faintly addressed.    It  appears  that
at the time of seeking bail the accused had requested the Sessions Court  to
call for the alleged Dying Declaration.    Keeping in perspective that  none
of  the  Accused  was  present  when  the  deceased  was  receiving  medical
treatment in the hospital, or  when  the  Dying  Declaration  was  allegedly
recorded, or at the time of death, or even at the  time  of  cremation,  the
manner  in  which  the  Accused  learnt  of  the  existence  of  the   Dying
Declaration has not been disclosed.   The statement of the  I.O.  also  does
not clarify the position; he has stated that he learnt of the  existence  of
the  Dying  Declaration  from  the  relatives  of  the  deceased.    On  the
application of  Sher  Singh,  the  burden  and  necessity  of  proving  this
sequence of events stood transferred to the shoulders of the  Accused  since
Section 304B of the IPC had been attracted.  The I.O. has deposed  that  all
the Accused, including the late father-in-law, Gorakh  Nath,  had  absconded
after the incident.   In fact, in the  cross-examination,  the  I.O.  states
that - "there is no reliable information about the Dying Declaration...   On
keeping this information that the Dying Declaration  of  Vijay  Lakshmi  was
recorded by the Magistrate I did not  consider  any  need  of  this  thing".
Neither the Doctor DW2 who had allegedly certified that the deceased was  in
a fit condition to make a statement nor  the  Tehsildar  who  had  allegedly
written down the alleged Dying Declaration has stated the  manner  in  which
the Tehsildar had been conscripted or  located  to  perform  this  important
recording.  The Dying Declaration appears to  have  mysteriously  popped  up
and referred to at the time of praying for bail.   The chain or sequence  of
events which lead to its recording remains undisclosed.   In his  statement,
the Tehsildar has not clarified the manner in which he  happened  to  record
the Dying Declaration and the timing  of  its  transmission  to  the  Court.
Since the onus of proof had shifted to the Accused,  this  alleged  sequence
of events should have been proved beyond reasonable doubt by them.   We  may
emphasise that the Tehsildar as well as the Doctor who  allegedly  certified
that the deceased was in a fit state to make the Dying Declaration has  been
produced by the defence.   The Doctor should have spoken of the sequence  of
events in which the Tehsildar came to record the  Dying  Declaration.    The
alleged exculpating Dying Declaration is, therefore, shrouded  in  suspicion
and we have not been persuaded to accept that  it  is  a  genuine  document.
The defence has failed to comply with Section  113B  of  the  Evidence  Act.
The Accused being charged of the commission of a dowry death ought  to  have
entered the witness box themselves.  The Accused were present on  the  scene
at the time of the occurrence, which turned out to be fatal, and that  added
to their responsibility to give a credible version  of  their  innocence  in
the dowry death.

11    Paniben v. State of  Gujarat (1992) 2  SCC  474,   Mafabhai  Nagarbhai
Raval v. State of Gujarat (1992) 4 SCC 69, Vithal v.  State  of  Maharashtra
(2006) 13 SCC 54, Amarsingh Munnasingh Suryawanshi v. State  of  Maharashtra
(2007) 15 SCC 455, Sher Singh v. State of Punjab (2008) 4 SCC 265,  Samadhan
Dhudaka Koli v. State of Maharashtra (2008) 16 SCC 705  and  Surinder  Kumar
v. State of Punjab (2012) 12 SCC 120, are distinguishable on  facts  because
in the case in hand we are not convinced of the authenticity  of  the  Dying
Declaration; in contradiction to  its  form,  or  the  mental  stability  or
lucidity of the deceased at the time when she allegedly made  the  statement
attributed to her.

12    The Appeals are dismissed in the above terms.   The interim  Order  is
recalled.


....................................J.
(VIKRAMAJIT SEN)


....................................J.
(R.K. AGRAWAL)
New Delhi;
February 27, 2015.

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