2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41951
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1422 OF 2009
Prem Kumar Gulati ….Appellant
Versus
State of Haryana and another ..Respondents
WITH
CRIMINAL APPEAL NOL.1423 OF 2009
Mahender Singh alias
Mahender Gulati ……Appellant
Versus
State of Haryana and another ..Respondents
J U D G M E N T
M.Y. EQBAL, J.
These appeals are directed against judgment and order dated
06.09.2008 passed by the High Court of Punjab and Haryana in Criminal
Appeal No. 342-DB of 2006, whereby the High Court dismissed the appeal of
the accused persons and upheld the judgment dated 25.04.2006 passed by the
Additional Sessions Judge, Bhiwani (Haryana) in Sessions Case No.8 RBT of
18.3.2004, inflicting sentence with rigorous imprisonment for life under
Section 302/498-A read with Section 34, Indian Penal Code and imposed fine
with default clause.
2. The facts leading to the prosecution story are that on 16.1.1995,
Rajni-deceased was married with Mahender Singh alias Mahender Gulati and
out of this wedlock, three children were born. Both the appellants, namely
Mahender Gulati and Prem Kumar Gulati (brother in-law (jeth) of deceased)
are the brothers. The prosecution case is that on receipt of V.T. message
on 10.12.2003, ASI Ram Singh rushed to PGIMS, Rohtak with regard to
admission of Rajni in burnt condition. After obtaining Doctor’s
certificate regarding fitness of the victim to give statement, Additional
Chief Judicial Magistrate, Rohtak recorded her statement (dying
declaration) to the effect that on 9.12.2003, at around 9.30/10.00 P.M. the
accused persons being her husband, Jeth and Jethani poured kerosene oil on
her and set ablaze. It is also stated in her dying declaration that her
husband had illicit relation with his Bhabi Bimla (since deceased), with
the result she used to pick up quarrel with him. Her husband gave her
beatings under the influence of intoxication. None made attempt to
extinguish fire.
3. On the basis of the above dying declaration a case was registered and
the investigation agency swung into action. Statements of witnesses were
accordingly recorded under Section 161, Cr.P.C. The Investigating Officer
investigated the spot and prepared rough site plan with correct marginal
notes and took into possession burnt clothes of Rajni, ash of burnt
clothes, one kerosene lamp after converting the same into sealed parcel.
On the night of 12.12.2003, message was received from PGIMS, Rohtak that
Rajini had died as a result of burn injuries. Post mortem report was
obtained, site plan was sketched and FSL report was obtained. After
completion of investigation, only accused Mahender Singh alias Mahender
Gulati was arraigned to stand trial under Sections 302/498A, I.P.C. by
Police, whereas Prem Kumar Gulati and Smt. Bimla alias Nirmla were summoned
to face trial along with other accused Mahender, as additional accused, by
invoking the provisions of Section 319, Cr.P.C.
4. In order to substantiate the charges, the prosecution examined nine
witnesses. According to Dr. Ravi Kanta (PW-1), who conducted post mortem
examination, burn injuries were approximately 50% and cause of death of
Rajni was due to ante mortem burns, which were sufficient to cause death in
ordinary course of nature. According to Dr. Naresh Kumar Kardwal (PW-3),
who medico-legally examined the deceased, found superficial deep burns all
over the body except back, hip, lower leg, left hand and forearm. He
stated that possibility of burn injuries in this case by fall of kerosene
oil on the head cannot be ruled out. Agyapal (PW-7), father of the
deceased, stated that accused person started harassing his daughter three
months after marriage for want of dowry although sufficient dowry was
given. Ultimately, she was shunted out from the matrimonial abode and her
husband filed a divorce petition. Later, the matter was resolved on the
apology being tendered and assurance given by the accused persons before
the panchayat on 1.12.1996. Ironically she fell prey to recurrence and was
turned out from the matrimonial house in the year 1997. His daughter
divulged about the illicit relations between her husband and sister-in-law.
Again accused persons were apologized before the Panchayat on the
assurance given by them. In 2001, a criminal case was filed, which was
also compromised with the intervention of panchayat. Against willingness
of his daughter, he persuaded and sent her daughter back to the matrimonial
house through panchayat. He further highlighted that about one week prior
to the occurrence, his daughter informed him telephonically about
harassment and requested him to take her to parental house. Thereafter, on
10.12.2003 at around 5.00 A.M. a telephonic message, was received and he
along with his wife and son rushed to the hospital, where the victim
disclosed that accused Prem and Bimla caught hold of her and her husband
Mahender poured kerosene oil and set her on fire. PW8, brother of Rajni,
supported the version of his father PW7.
5. Accused denied all the charges and in defence accused Mahender Singh
stated that at the time of occurrence he was present on the ground floor
and was working at flour mill. His wife and children were on the first
floor. After hearing cries of children, he went upstairs on the first
floor and saw that his wife was having burn injuries accidentally due to
falling of a lamp upon her in the kitchen. Complaint against his brother
and bhabhi, who were residing separately, was filed at the instance of her
parents. The accused examined deceased’s eight years’ old daughter Kumari
Manshu (DW-1), who deposed that she heard cries of her mother in the
kitchen. She came out and told that she had caught fire due to falling of
burning lamp on her as glass of the lamp got broken after falling upon her.
The Child called her father, who was on the ground floor in the flour mill
at that time. Her father and neighbours extinguished fire and took her
mother to the hospital. Upon this, trial court has opined that the child
has been tutored as she was residing with accused persons, namely, Prem and
Bimla, after the death of her mother and she had come along with them on
the date of examination in the Court. Trial court further observed that
broken glasses of the lamp had fallen in the verandah and not in the
kitchen.
6. After careful examination of the evidence and pleadings of the
parties, the trial court held that the prosecution has proved that the
accused persons, in furtherance of the common intention, subjected Rajni to
cruelty as her husband had illicit relations with co-accused Bimla
(Bhabhi). The Trial Court convicted all the three accused persons under
Section 302/498-A read with Section 34 IPC and sentenced them with rigorous
imprisonment for life and imposed a fine of Rs.5,000/-under Section 302
read with Section 34 IPC and rigorous imprisonment for one year and fine
of Rs. 500/- under Section 498A-read with Section 34 IPC on each accused
convicts.
7. Aggrieved by the decision of the trial court, the accused persons
preferred criminal appeal before the High Court of Punjab and Haryana at
Chandigarh, which was dismissed by the Division Bench of the High Court
upholding the judgment of the trial Court. Hence, the present appeals by
special leave by two accused persons.
8. Mrs. Meenakshi Arora, learned senior counsel appearing for the
appellants assailed the judgment of conviction as being contrary to law and
the facts of the case and that the prosecution has not proved the case
beyond reasonable doubt. At the very outset, learned senior counsel
submitted that two of the accused persons, viz., Prem Kumar Gulati and his
wife were in no way involved in the commission of the alleged offence. She
drew our attention to the evidence of PW-2 Sub-Inspector who investigated
the case and recorded the statement of witnesses under Section 161 of
Cr.P.C. He deposed that during investigation the accused Prem Kumar Gulati
and his wife were found innocent. Hence they were not summoned to face
trial along with the deceased’s husband Mahender Singh Gulati. Similarly,
PW-9 ASI Ram Singh Investigating Officer in the case deposed inter alia
that the accused appellant Prem and his wife Bimla were residing
separately. However, they could not escape themselves from the clutches of
law on the basis of so called dying declaration. She further submitted
that the dying declaration cannot be relied upon and conviction cannot be
based on vague statement. She submitted that in the dying declaration,
there is neither anu mention of time of its recording nor there is any
mention about the state of mind of the deceased while making her statement
before the Magistrate. The dying declaration is also not in question
answer form. Learned senior counsel submitted that in case of any
inconsistency between the dying declaration and the evidence adduced by the
prosecution such dying declaration cannot be relied upon. Learned senior
counsel relied upon few of the decisions of this Court viz., P. Mani vs.
State of Tamil Nadu, (2006) 3 SCC 161; Mohan Lal & Ors. vs. State of
Haryana, (2007) 9 SCC 151.
9. Mrs. Arora further submitted that there is no eye-witness in the case
except one eight year old daughter of the deceased who was examined as DW-
1. She further submitted that it is wrong to disbelieve the child on the
ground that she is a tutored witness being residing with the accused
persons after the death of her mother and on the date of examination in
court, she had come along with them. It was contended that father of
the deceased (PW-7) did not express that he would keep the child in his
care and guardianship. Learned counsel submitted that because of the past
history of alleged torture and several litigations, the motive of giving
dying declaration cannot be ruled out.
10. Mrs. Arora, specifically mentioned the innocence of the accused-
appellant Prem Kumar Gulati (brother of the main accused) who is found
innocent during the investigation and was not put on trial. It was only
after the orders passed under Section 319 of Cr.P.C. he faced the trial
along with the main accused. Finally, she submitted that in the absence of
eye-witness to the incident the prosecution story based on inconsistent
evidence of the witnesses cannot be relied upon.
11. Mr. Rupansh Purohit, learned Addl. Advocate General appearing for
the State, firstly submitted that the statement made by the deceased on the
dying declaration is sufficient to convict the appellants for the offence
committed by them. Ld. AAG submitted that dying declaration is not
necessary to be in question answer form, rather dying declaration in
narrative form is more natural. In this connection he relied upon a
decision of this Court in State of Karnataka v. Shariff (2003) 2 SCC 473.
Learned AAG further submitted that evidence given by the father (PW-7) is
more reliable evidence and there is nothing on record to suggest that the
deceased made a dying declaration on the influence of her father. Lastly,
he submitted that the accused Prem Kumar Gulati and his wife were residing
in the same building and there is no evidence that they were living
separately.
12. First of all we shall consider the authenticity of the dying
declaration recorded by the Magistrate. The dying declaration reads as
under:-
“Statement of Rajni W/o Mahender, aged 28 years, Household, Jamalpur,
District Bhiwani.
Stated that yesterday night at 9.30/10.00 my husband Mahender, my Jeth Prem
Gulati, my Jethani Bimla have poured kerosene oil upon me. My husband used
to reside with his bhabhi. There was quarrel between us daily. After
drinking liquor, I was beaten up with lathi and shoes. None has
extinguished the fire. I have three children. I have heard my statement,
which is correct. I do not want to say anything else.”
RO & AC Sd/-
Sd/- ACJM, Rohtak
R.T.I. Rajni 10.12.2003”
13. It is well settled that a truthful and reliable dying declaration may
form the sole basis of conviction even though it is not corroborated.
However, the reliability of declaration should be subjected to close
scrutiny and the courts must be satisfied that the declaration is truthful.
In the case of Godhu & Anr. vs. State of Rajasthan, (1975) 3 SCC 241, a
three Judge Bench of this Court has thoroughly discussed the evidentiary
value and reliability of dying declaration observed:-
“16. We are also unable to subscribe to the view that if a part of the
dying declaration has not been proved to be correct, it must necessarily
result in the rejection of the whole of the dying declaration. The
rejection of a part of the dying declaration would put the court on the
guard and induce it to apply a rule of caution. There may be cases wherein
the part of the dying declaration which is not found to be correct is so
indissolubly linked with the other part of the dying declaration that it is
not possible to sever the two parts. In such an event the court would well
be justified in rejecting the whole of the dying declaration. There may,
however, be other cases wherein the two parts of a dying declaration may be
severable and the correctness of one part does not depend upon the
correctness of the other part. In the last mentioned cases the court would
not normally act upon a part of the dying declaration, the other part of
which has not been found to be true, unless the part relied upon is
corroborated in material particulars by the other evidence on record. If
such other evidence shows that part of the dying declaration relied upon is
correct and trustworthy the court can act upon that part of the dying
declaration despite the fact that another part of the dying declaration has
not been proved to be correct.”
14. In the case of K. Ramachandra Reddy vs. Public Prosecutor, (1976) 3
SCC 618, this Court observed that:-
“6. The accused pleaded innocence and averred that they had been falsely
implicated due to enmity. Thus it would appear that the conviction of the
accused depends entirely on the reliability of the dying declaration Ext. P-
2. The dying declaration is undoubtedly admissible under Section 32 of the
Evidence Act and not being a statement on oath so that its truth could be
tested by cross-examination, the courts have to apply the strictest
scrutiny and the closest circumspection to the statement before acting upon
it. While great solemnity and sanctity is attached to the words of a dying
man because a person on the verge of death is not likely to tell lies or to
concoct a case so as to implicate an innocent person yet the court has to
be on guard against the statement of the deceased being a result of either
tutoring, prompting or a product of his imagination. The court must be
satisfied that the deceased was in a fit state of mind to make the
statement after the deceased had a clear opportunity to observe and
identify his assailants and that he was making the statement without any
influence or rancour. Once the court is satisfied that the dying
declaration is true and voluntary it can be sufficient to found the
conviction even without any further corroboration. The law on the subject
has been clearly and explicitly enunciated by this Court in Khushal Rao v.
State of Bombay, AIR 1958 SC 22, where the Court observed as follows:
“On a review of the relevant provisions of the Evidence Act and of the
decided cases in the different High Courts in India and in this Court, we
have come to the conclusion, in agreement with the opinion of the Full
Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down
as an absolute rule of law that a dying declaration cannot form the sole
basis of convictiorn unless it is corroborated; (2) that each case must be
determined on its own facts keeping in view the circumstances in which the
dying declaration was made; (3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind of evidence than
other pieces of evidence; (4) that a dying declaration stands on the same
footing as another piece of evidence and has to be judged in the light of
surrounding circumstances and with reference to[pic]the principles
governing the weighing of evidence; (5) that a dying declaration which has
been recorded by a competent Magistrate in the proper manner, that is to
say, in the form of questions and answers, and, as far as practicable, in
the words of the maker of the declaration, stands on a much higher footing
than a dying declaration which depends upon oral testimony which may suffer
from all the infirmities of human memory and human character, and (6) that
in order to test the reliability of a dying declaration, the court has to
keep in view the circumstances like the opportunity of the dying man for
observation, for example, whether there was sufficient light if the crime
was committed at night, whether the capacity of the man to remember the
facts stated had not been impaired at the time he was making the statement,
by circumstances beyond his control; that the statement has been consistent
throughout if he had several opportunities of making a dying declaration
apart from the official record of it; and that the statement had been made
at the earliest opportunity and was not the result of tutoring by
interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to
be subjected to a very close scrutiny, keeping in view the fact that the
statement has been made in the absence of the accused who had no
opportunity of testing the veracity of the statement by cross-examination.”
The above observations made by this Court were fully endorsed by a Bench of
five Judges of this Court in Harbans Singh v. State of Punjab AIR 1962 SC
439. In a recent decision of this Court in Tapinder Singh v. State of
Punjab,(1970) 2 SCC 113, relying upon the earlier decision referred to
above, this Court observed as follows: [SCC p. 119, para 5]
“It is true that a dying declaration is not a deposition in court and it is
neither made on oath nor in the presence of the accused. It is, therefore,
not tested by cross-examination on behalf of the accused. But a dying
declaration is admitted in evidence by way of an exception to the general
rule against the admissibility of hearsay evidence, on the principle of
necessity. The weak points of a dying declaration just mentioned merely
serve to put the court on its guard while testing its reliability, by
imposing on it an obligation to closely scrutinise all the relevant
attendant circumstances.”
In Lallubhai Devchand Shah v. State of Gujarat, (1971)3 SCC 767, this Court
laid special stress on the fact that one of the important tests of the
reliability of a dying declaration is that the person who recorded it must
be satisfied that the deceased was in a fit state of mind and observed as
follows: [SCC p. 772 : SCC (CRI) p. 18, para 9]
“The Court, therefore, blamed Dr Pant for not questioning Trilok Singh with
a view to test whether Trilok Singh was in a ‘fit state of mind’ to make
the statement. The ‘fit state of mind’ referred to is in relation to the
statement that the dying man was making. In other words, what the case
suggests is that the person who records a dying declaration must be
satisfied that the dying man was making a conscious and voluntary statement
with normal understanding.”
15. In the case of Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC
808, a three Judge Bench of this Court elaborately discussed the mode of
appreciation of evidence and the general principles regarding presumption
of innocence of the accused. The Bench observed:-
“25. Another golden thread which runs through the web of the administration
of justice in criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance in cases wherein
the guilt of the accused is sought to be established by circumstantial
evidence. Rule has accordingly been laid down that unless the evidence
adduced in the case is consistent only with the hypothesis of the guilt of
the accused and is inconsistent with that of his innocence, the Court
should refrain from recording a finding of guilt of the accused. It is also
an accepted rule that in case the Court entertains reasonable doubt
regarding the guilt of the accused, the accused must have the benefit of
that doubt. Of course, the doubt regarding the guilt of the accused should
be reasonable; it is not the doubt of a mind which is either so vacillating
that it is incapable of reaching a firm conclusion or so timid that is is
hesitant and afraid to take things to their natural consequences. The rule
regarding the benefit of doubt also does not warrant acquittal of the
accused by report to surmises, conjectures or fanciful considerations. As
mentioned by us recently in the case of State of Punjab v. Jagir
Singh(1974)3SCC 227 a criminal trial is not like a fairy tale wherein one
is free to give flight to one’s imagination and phantasy. It concerns
itself with the question as to whether the accused arraigned at the trial
is guilty of the offence with which he is charged. Crime is an event in
real life and is the product of interplay of different human emotions. In
arriving at the conclusion about the guilt of the accused charged with the
commission of a crime, the Court has to judge the evidence by the yardstick
of probabilities, its intrinsic worth and the animus of witnesses. Every
case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the
accused, the Courts should not at the same time reject evidence which is ex
facie trustworthy on grounds which are fanciful or in the nature of
conjectures.
27. It is no doubt true that wrongful acquittals are undesirable and shake
the confidence of the people in the judicial system, much worse, however,
is the wrongful conviction of an innocent person. The consequences of the
conviction of an innocent person are far more serious and its
reverberations cannot but be felt in a civilised society. Suppose an
innocent person is convicted of the offence of murder and is hanged,
nothing further can undo the mischief for the wrong resulting from the
unmerited conviction is irretrievable. To take another instance, if an
innocent person is sent to jail and undergoes the sentence, the scars left
by the miscarriage of justice cannot be erased by any subsequent act of
expiation. Not many persons undergoing the pangs of wrongful conviction are
fortunate like Dreyfus to have an Emile Zola to champion their cause and
succeed in getting the verdict of guilt annulled. All this highlights the
importance of ensuring, as far as possible, that there should be no
wrongful conviction of an innocent person. Some risk of the conviction of
the innocent, of course, is always there in any system of the
administration of criminal justice. Such a risk can be minimised but not
ruled out altogether. It may in this connection be apposite to refer to the
following observations of Sir Carleton Alien quoted on p. 157 of The Proof
of Guilt by Glanville Williams, 2nd Edn.:
“I dare say some sentimentalists would assent to the proposition that it is
better that a thousand or even a million guilty persons should escape than
that one innocent person should suffer; but no responsible and practical
person would accept such a view. For it is obvious that if our ratio is
extended indefinitely, there comes a point when the whole system of justice
has broken down and society is in a state of chaos.”
16. The submission of Ms. Meenakshi Arora, learned senior counsel
appearing for the appellant that the dying declaration is untenable being
without mentioning the time when the statement was recorded as also not in
the question answer form, cannot be sustained. Merely because dying
declaration was not in question answer form, the sanctity attached to a
dying declaration as it comes from the mouth of a dying person cannot be
brushed aside and its reliability cannot be doubted.
17. In the light of the law settled by the Supreme Court, we shall first
examine the case of the accused appellant Prem Kumar Gulati, whose wife
(Bimla, since deceased) was also co- accused. Immediately after the
occurrence took place, the police reached the place of occurrence and
recorded the statement of witnesses in course of investigation and found
that the said accused Prem Kumar Gulati was innocent and he was not
involved in the commission of the offence.
18. Admittedly, they were not put on trial along with the main accused-
appellant Mahender Singh. It was only at the stage of Section 319, Cr.P.C.
the accused persons namely Prem Kumar Gulati and his wife were summoned and
put on trial. Except dying declaration there is nothing on record to
strongly suggest that they were involved in the commission of crime. There
is nothing in the findings of sessions court which suggest that the said
accused persons participated in the commission of the aforesaid crime, and
this fact has been reiterated by the High Court also.
19. As noticed above, in the dying declaration, the deceased declared that
her husband Mahender Singh along with the accused Prem Kumar Gulati and
Bimla (deceased) have poured kerosene oil upon her. Except that, nothing
has been said in the dying declaration as against the accused Prem Kumar
Gulati or his wife- Bimla as to which accused poured kerosene oil upon her
and the accused lighted the fire. In the later part of dying declaration,
the deceased stated that her husband Mahender Singh used to reside with his
Bhabhi. After drinking liquor, she was beaten up by her husband with lathi
and shoes. In other words, in her dying declaration she said that her
husband Mahender Singh used to beat her after drinking liquor. There is no
eye-witness to the occurrence. PW-2, the police officer deposed that he
recorded the statement of several persons and collected all the papers
including ration card and compromise letter written to the Panchayat etc.
He further deposed that during the investigation, the accused Prem Kumar
and Bimla were found innocent as they were living separately. Although
the trial court and the appellate court convicted both the accused Prem
Kumar Gulati and his wife Bimla, but after scrutiny of all the evidence, we
are of the view that there are no corroborative evidence to come to the
conclusion that these two participated along with the main accused Mahender
Singh for the commission of the offence. As noticed above, one of the
accused Bimla already expired. We do not find any reason why Prem Kumar
also participated in the commission of the offence. Admittedly, neither in
the dying declaration nor in the statement of witnesses it has come in
light as to what act was done by the accused- Prem Kumar.
20. In our considered opinion, the benefit of doubt should be given to
accused-appellant Prem Kumar and his conviction cannot be sustained.
21. Sufficient evidence has come on record and the prosecution has
established the case that it was Mahender Singh at whose instance and
instigation she was subjected to death by pouring kerosene oil and lit on
fire. We are, therefore, of the view that the finding recorded by the
trial court as also by the Appellate Court as against main accused Mahnder
Singh (husband of the deceased) cannot be interfered with.
22. We, therefore, dismiss Criminal Appeal No. 1423 of 2009 and uphold
the conviction of Mahender Singh.
23. Criminal Appeal No.1422 of 2009 is allowed and the appellant Prem
Kumar Gulati is acquitted from charges. He is directed to be released
forthwith.
…………………………….J.
(M.Y. Eqbal)
…………………………….J.
(Pinaki Chandra Ghose)
New Delhi,
September 23, 2014.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1422 OF 2009
Prem Kumar Gulati ….Appellant
Versus
State of Haryana and another ..Respondents
WITH
CRIMINAL APPEAL NOL.1423 OF 2009
Mahender Singh alias
Mahender Gulati ……Appellant
Versus
State of Haryana and another ..Respondents
J U D G M E N T
M.Y. EQBAL, J.
These appeals are directed against judgment and order dated
06.09.2008 passed by the High Court of Punjab and Haryana in Criminal
Appeal No. 342-DB of 2006, whereby the High Court dismissed the appeal of
the accused persons and upheld the judgment dated 25.04.2006 passed by the
Additional Sessions Judge, Bhiwani (Haryana) in Sessions Case No.8 RBT of
18.3.2004, inflicting sentence with rigorous imprisonment for life under
Section 302/498-A read with Section 34, Indian Penal Code and imposed fine
with default clause.
2. The facts leading to the prosecution story are that on 16.1.1995,
Rajni-deceased was married with Mahender Singh alias Mahender Gulati and
out of this wedlock, three children were born. Both the appellants, namely
Mahender Gulati and Prem Kumar Gulati (brother in-law (jeth) of deceased)
are the brothers. The prosecution case is that on receipt of V.T. message
on 10.12.2003, ASI Ram Singh rushed to PGIMS, Rohtak with regard to
admission of Rajni in burnt condition. After obtaining Doctor’s
certificate regarding fitness of the victim to give statement, Additional
Chief Judicial Magistrate, Rohtak recorded her statement (dying
declaration) to the effect that on 9.12.2003, at around 9.30/10.00 P.M. the
accused persons being her husband, Jeth and Jethani poured kerosene oil on
her and set ablaze. It is also stated in her dying declaration that her
husband had illicit relation with his Bhabi Bimla (since deceased), with
the result she used to pick up quarrel with him. Her husband gave her
beatings under the influence of intoxication. None made attempt to
extinguish fire.
3. On the basis of the above dying declaration a case was registered and
the investigation agency swung into action. Statements of witnesses were
accordingly recorded under Section 161, Cr.P.C. The Investigating Officer
investigated the spot and prepared rough site plan with correct marginal
notes and took into possession burnt clothes of Rajni, ash of burnt
clothes, one kerosene lamp after converting the same into sealed parcel.
On the night of 12.12.2003, message was received from PGIMS, Rohtak that
Rajini had died as a result of burn injuries. Post mortem report was
obtained, site plan was sketched and FSL report was obtained. After
completion of investigation, only accused Mahender Singh alias Mahender
Gulati was arraigned to stand trial under Sections 302/498A, I.P.C. by
Police, whereas Prem Kumar Gulati and Smt. Bimla alias Nirmla were summoned
to face trial along with other accused Mahender, as additional accused, by
invoking the provisions of Section 319, Cr.P.C.
4. In order to substantiate the charges, the prosecution examined nine
witnesses. According to Dr. Ravi Kanta (PW-1), who conducted post mortem
examination, burn injuries were approximately 50% and cause of death of
Rajni was due to ante mortem burns, which were sufficient to cause death in
ordinary course of nature. According to Dr. Naresh Kumar Kardwal (PW-3),
who medico-legally examined the deceased, found superficial deep burns all
over the body except back, hip, lower leg, left hand and forearm. He
stated that possibility of burn injuries in this case by fall of kerosene
oil on the head cannot be ruled out. Agyapal (PW-7), father of the
deceased, stated that accused person started harassing his daughter three
months after marriage for want of dowry although sufficient dowry was
given. Ultimately, she was shunted out from the matrimonial abode and her
husband filed a divorce petition. Later, the matter was resolved on the
apology being tendered and assurance given by the accused persons before
the panchayat on 1.12.1996. Ironically she fell prey to recurrence and was
turned out from the matrimonial house in the year 1997. His daughter
divulged about the illicit relations between her husband and sister-in-law.
Again accused persons were apologized before the Panchayat on the
assurance given by them. In 2001, a criminal case was filed, which was
also compromised with the intervention of panchayat. Against willingness
of his daughter, he persuaded and sent her daughter back to the matrimonial
house through panchayat. He further highlighted that about one week prior
to the occurrence, his daughter informed him telephonically about
harassment and requested him to take her to parental house. Thereafter, on
10.12.2003 at around 5.00 A.M. a telephonic message, was received and he
along with his wife and son rushed to the hospital, where the victim
disclosed that accused Prem and Bimla caught hold of her and her husband
Mahender poured kerosene oil and set her on fire. PW8, brother of Rajni,
supported the version of his father PW7.
5. Accused denied all the charges and in defence accused Mahender Singh
stated that at the time of occurrence he was present on the ground floor
and was working at flour mill. His wife and children were on the first
floor. After hearing cries of children, he went upstairs on the first
floor and saw that his wife was having burn injuries accidentally due to
falling of a lamp upon her in the kitchen. Complaint against his brother
and bhabhi, who were residing separately, was filed at the instance of her
parents. The accused examined deceased’s eight years’ old daughter Kumari
Manshu (DW-1), who deposed that she heard cries of her mother in the
kitchen. She came out and told that she had caught fire due to falling of
burning lamp on her as glass of the lamp got broken after falling upon her.
The Child called her father, who was on the ground floor in the flour mill
at that time. Her father and neighbours extinguished fire and took her
mother to the hospital. Upon this, trial court has opined that the child
has been tutored as she was residing with accused persons, namely, Prem and
Bimla, after the death of her mother and she had come along with them on
the date of examination in the Court. Trial court further observed that
broken glasses of the lamp had fallen in the verandah and not in the
kitchen.
6. After careful examination of the evidence and pleadings of the
parties, the trial court held that the prosecution has proved that the
accused persons, in furtherance of the common intention, subjected Rajni to
cruelty as her husband had illicit relations with co-accused Bimla
(Bhabhi). The Trial Court convicted all the three accused persons under
Section 302/498-A read with Section 34 IPC and sentenced them with rigorous
imprisonment for life and imposed a fine of Rs.5,000/-under Section 302
read with Section 34 IPC and rigorous imprisonment for one year and fine
of Rs. 500/- under Section 498A-read with Section 34 IPC on each accused
convicts.
7. Aggrieved by the decision of the trial court, the accused persons
preferred criminal appeal before the High Court of Punjab and Haryana at
Chandigarh, which was dismissed by the Division Bench of the High Court
upholding the judgment of the trial Court. Hence, the present appeals by
special leave by two accused persons.
8. Mrs. Meenakshi Arora, learned senior counsel appearing for the
appellants assailed the judgment of conviction as being contrary to law and
the facts of the case and that the prosecution has not proved the case
beyond reasonable doubt. At the very outset, learned senior counsel
submitted that two of the accused persons, viz., Prem Kumar Gulati and his
wife were in no way involved in the commission of the alleged offence. She
drew our attention to the evidence of PW-2 Sub-Inspector who investigated
the case and recorded the statement of witnesses under Section 161 of
Cr.P.C. He deposed that during investigation the accused Prem Kumar Gulati
and his wife were found innocent. Hence they were not summoned to face
trial along with the deceased’s husband Mahender Singh Gulati. Similarly,
PW-9 ASI Ram Singh Investigating Officer in the case deposed inter alia
that the accused appellant Prem and his wife Bimla were residing
separately. However, they could not escape themselves from the clutches of
law on the basis of so called dying declaration. She further submitted
that the dying declaration cannot be relied upon and conviction cannot be
based on vague statement. She submitted that in the dying declaration,
there is neither anu mention of time of its recording nor there is any
mention about the state of mind of the deceased while making her statement
before the Magistrate. The dying declaration is also not in question
answer form. Learned senior counsel submitted that in case of any
inconsistency between the dying declaration and the evidence adduced by the
prosecution such dying declaration cannot be relied upon. Learned senior
counsel relied upon few of the decisions of this Court viz., P. Mani vs.
State of Tamil Nadu, (2006) 3 SCC 161; Mohan Lal & Ors. vs. State of
Haryana, (2007) 9 SCC 151.
9. Mrs. Arora further submitted that there is no eye-witness in the case
except one eight year old daughter of the deceased who was examined as DW-
1. She further submitted that it is wrong to disbelieve the child on the
ground that she is a tutored witness being residing with the accused
persons after the death of her mother and on the date of examination in
court, she had come along with them. It was contended that father of
the deceased (PW-7) did not express that he would keep the child in his
care and guardianship. Learned counsel submitted that because of the past
history of alleged torture and several litigations, the motive of giving
dying declaration cannot be ruled out.
10. Mrs. Arora, specifically mentioned the innocence of the accused-
appellant Prem Kumar Gulati (brother of the main accused) who is found
innocent during the investigation and was not put on trial. It was only
after the orders passed under Section 319 of Cr.P.C. he faced the trial
along with the main accused. Finally, she submitted that in the absence of
eye-witness to the incident the prosecution story based on inconsistent
evidence of the witnesses cannot be relied upon.
11. Mr. Rupansh Purohit, learned Addl. Advocate General appearing for
the State, firstly submitted that the statement made by the deceased on the
dying declaration is sufficient to convict the appellants for the offence
committed by them. Ld. AAG submitted that dying declaration is not
necessary to be in question answer form, rather dying declaration in
narrative form is more natural. In this connection he relied upon a
decision of this Court in State of Karnataka v. Shariff (2003) 2 SCC 473.
Learned AAG further submitted that evidence given by the father (PW-7) is
more reliable evidence and there is nothing on record to suggest that the
deceased made a dying declaration on the influence of her father. Lastly,
he submitted that the accused Prem Kumar Gulati and his wife were residing
in the same building and there is no evidence that they were living
separately.
12. First of all we shall consider the authenticity of the dying
declaration recorded by the Magistrate. The dying declaration reads as
under:-
“Statement of Rajni W/o Mahender, aged 28 years, Household, Jamalpur,
District Bhiwani.
Stated that yesterday night at 9.30/10.00 my husband Mahender, my Jeth Prem
Gulati, my Jethani Bimla have poured kerosene oil upon me. My husband used
to reside with his bhabhi. There was quarrel between us daily. After
drinking liquor, I was beaten up with lathi and shoes. None has
extinguished the fire. I have three children. I have heard my statement,
which is correct. I do not want to say anything else.”
RO & AC Sd/-
Sd/- ACJM, Rohtak
R.T.I. Rajni 10.12.2003”
13. It is well settled that a truthful and reliable dying declaration may
form the sole basis of conviction even though it is not corroborated.
However, the reliability of declaration should be subjected to close
scrutiny and the courts must be satisfied that the declaration is truthful.
In the case of Godhu & Anr. vs. State of Rajasthan, (1975) 3 SCC 241, a
three Judge Bench of this Court has thoroughly discussed the evidentiary
value and reliability of dying declaration observed:-
“16. We are also unable to subscribe to the view that if a part of the
dying declaration has not been proved to be correct, it must necessarily
result in the rejection of the whole of the dying declaration. The
rejection of a part of the dying declaration would put the court on the
guard and induce it to apply a rule of caution. There may be cases wherein
the part of the dying declaration which is not found to be correct is so
indissolubly linked with the other part of the dying declaration that it is
not possible to sever the two parts. In such an event the court would well
be justified in rejecting the whole of the dying declaration. There may,
however, be other cases wherein the two parts of a dying declaration may be
severable and the correctness of one part does not depend upon the
correctness of the other part. In the last mentioned cases the court would
not normally act upon a part of the dying declaration, the other part of
which has not been found to be true, unless the part relied upon is
corroborated in material particulars by the other evidence on record. If
such other evidence shows that part of the dying declaration relied upon is
correct and trustworthy the court can act upon that part of the dying
declaration despite the fact that another part of the dying declaration has
not been proved to be correct.”
14. In the case of K. Ramachandra Reddy vs. Public Prosecutor, (1976) 3
SCC 618, this Court observed that:-
“6. The accused pleaded innocence and averred that they had been falsely
implicated due to enmity. Thus it would appear that the conviction of the
accused depends entirely on the reliability of the dying declaration Ext. P-
2. The dying declaration is undoubtedly admissible under Section 32 of the
Evidence Act and not being a statement on oath so that its truth could be
tested by cross-examination, the courts have to apply the strictest
scrutiny and the closest circumspection to the statement before acting upon
it. While great solemnity and sanctity is attached to the words of a dying
man because a person on the verge of death is not likely to tell lies or to
concoct a case so as to implicate an innocent person yet the court has to
be on guard against the statement of the deceased being a result of either
tutoring, prompting or a product of his imagination. The court must be
satisfied that the deceased was in a fit state of mind to make the
statement after the deceased had a clear opportunity to observe and
identify his assailants and that he was making the statement without any
influence or rancour. Once the court is satisfied that the dying
declaration is true and voluntary it can be sufficient to found the
conviction even without any further corroboration. The law on the subject
has been clearly and explicitly enunciated by this Court in Khushal Rao v.
State of Bombay, AIR 1958 SC 22, where the Court observed as follows:
“On a review of the relevant provisions of the Evidence Act and of the
decided cases in the different High Courts in India and in this Court, we
have come to the conclusion, in agreement with the opinion of the Full
Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down
as an absolute rule of law that a dying declaration cannot form the sole
basis of convictiorn unless it is corroborated; (2) that each case must be
determined on its own facts keeping in view the circumstances in which the
dying declaration was made; (3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind of evidence than
other pieces of evidence; (4) that a dying declaration stands on the same
footing as another piece of evidence and has to be judged in the light of
surrounding circumstances and with reference to[pic]the principles
governing the weighing of evidence; (5) that a dying declaration which has
been recorded by a competent Magistrate in the proper manner, that is to
say, in the form of questions and answers, and, as far as practicable, in
the words of the maker of the declaration, stands on a much higher footing
than a dying declaration which depends upon oral testimony which may suffer
from all the infirmities of human memory and human character, and (6) that
in order to test the reliability of a dying declaration, the court has to
keep in view the circumstances like the opportunity of the dying man for
observation, for example, whether there was sufficient light if the crime
was committed at night, whether the capacity of the man to remember the
facts stated had not been impaired at the time he was making the statement,
by circumstances beyond his control; that the statement has been consistent
throughout if he had several opportunities of making a dying declaration
apart from the official record of it; and that the statement had been made
at the earliest opportunity and was not the result of tutoring by
interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to
be subjected to a very close scrutiny, keeping in view the fact that the
statement has been made in the absence of the accused who had no
opportunity of testing the veracity of the statement by cross-examination.”
The above observations made by this Court were fully endorsed by a Bench of
five Judges of this Court in Harbans Singh v. State of Punjab AIR 1962 SC
439. In a recent decision of this Court in Tapinder Singh v. State of
Punjab,(1970) 2 SCC 113, relying upon the earlier decision referred to
above, this Court observed as follows: [SCC p. 119, para 5]
“It is true that a dying declaration is not a deposition in court and it is
neither made on oath nor in the presence of the accused. It is, therefore,
not tested by cross-examination on behalf of the accused. But a dying
declaration is admitted in evidence by way of an exception to the general
rule against the admissibility of hearsay evidence, on the principle of
necessity. The weak points of a dying declaration just mentioned merely
serve to put the court on its guard while testing its reliability, by
imposing on it an obligation to closely scrutinise all the relevant
attendant circumstances.”
In Lallubhai Devchand Shah v. State of Gujarat, (1971)3 SCC 767, this Court
laid special stress on the fact that one of the important tests of the
reliability of a dying declaration is that the person who recorded it must
be satisfied that the deceased was in a fit state of mind and observed as
follows: [SCC p. 772 : SCC (CRI) p. 18, para 9]
“The Court, therefore, blamed Dr Pant for not questioning Trilok Singh with
a view to test whether Trilok Singh was in a ‘fit state of mind’ to make
the statement. The ‘fit state of mind’ referred to is in relation to the
statement that the dying man was making. In other words, what the case
suggests is that the person who records a dying declaration must be
satisfied that the dying man was making a conscious and voluntary statement
with normal understanding.”
15. In the case of Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC
808, a three Judge Bench of this Court elaborately discussed the mode of
appreciation of evidence and the general principles regarding presumption
of innocence of the accused. The Bench observed:-
“25. Another golden thread which runs through the web of the administration
of justice in criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance in cases wherein
the guilt of the accused is sought to be established by circumstantial
evidence. Rule has accordingly been laid down that unless the evidence
adduced in the case is consistent only with the hypothesis of the guilt of
the accused and is inconsistent with that of his innocence, the Court
should refrain from recording a finding of guilt of the accused. It is also
an accepted rule that in case the Court entertains reasonable doubt
regarding the guilt of the accused, the accused must have the benefit of
that doubt. Of course, the doubt regarding the guilt of the accused should
be reasonable; it is not the doubt of a mind which is either so vacillating
that it is incapable of reaching a firm conclusion or so timid that is is
hesitant and afraid to take things to their natural consequences. The rule
regarding the benefit of doubt also does not warrant acquittal of the
accused by report to surmises, conjectures or fanciful considerations. As
mentioned by us recently in the case of State of Punjab v. Jagir
Singh(1974)3SCC 227 a criminal trial is not like a fairy tale wherein one
is free to give flight to one’s imagination and phantasy. It concerns
itself with the question as to whether the accused arraigned at the trial
is guilty of the offence with which he is charged. Crime is an event in
real life and is the product of interplay of different human emotions. In
arriving at the conclusion about the guilt of the accused charged with the
commission of a crime, the Court has to judge the evidence by the yardstick
of probabilities, its intrinsic worth and the animus of witnesses. Every
case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the
accused, the Courts should not at the same time reject evidence which is ex
facie trustworthy on grounds which are fanciful or in the nature of
conjectures.
27. It is no doubt true that wrongful acquittals are undesirable and shake
the confidence of the people in the judicial system, much worse, however,
is the wrongful conviction of an innocent person. The consequences of the
conviction of an innocent person are far more serious and its
reverberations cannot but be felt in a civilised society. Suppose an
innocent person is convicted of the offence of murder and is hanged,
nothing further can undo the mischief for the wrong resulting from the
unmerited conviction is irretrievable. To take another instance, if an
innocent person is sent to jail and undergoes the sentence, the scars left
by the miscarriage of justice cannot be erased by any subsequent act of
expiation. Not many persons undergoing the pangs of wrongful conviction are
fortunate like Dreyfus to have an Emile Zola to champion their cause and
succeed in getting the verdict of guilt annulled. All this highlights the
importance of ensuring, as far as possible, that there should be no
wrongful conviction of an innocent person. Some risk of the conviction of
the innocent, of course, is always there in any system of the
administration of criminal justice. Such a risk can be minimised but not
ruled out altogether. It may in this connection be apposite to refer to the
following observations of Sir Carleton Alien quoted on p. 157 of The Proof
of Guilt by Glanville Williams, 2nd Edn.:
“I dare say some sentimentalists would assent to the proposition that it is
better that a thousand or even a million guilty persons should escape than
that one innocent person should suffer; but no responsible and practical
person would accept such a view. For it is obvious that if our ratio is
extended indefinitely, there comes a point when the whole system of justice
has broken down and society is in a state of chaos.”
16. The submission of Ms. Meenakshi Arora, learned senior counsel
appearing for the appellant that the dying declaration is untenable being
without mentioning the time when the statement was recorded as also not in
the question answer form, cannot be sustained. Merely because dying
declaration was not in question answer form, the sanctity attached to a
dying declaration as it comes from the mouth of a dying person cannot be
brushed aside and its reliability cannot be doubted.
17. In the light of the law settled by the Supreme Court, we shall first
examine the case of the accused appellant Prem Kumar Gulati, whose wife
(Bimla, since deceased) was also co- accused. Immediately after the
occurrence took place, the police reached the place of occurrence and
recorded the statement of witnesses in course of investigation and found
that the said accused Prem Kumar Gulati was innocent and he was not
involved in the commission of the offence.
18. Admittedly, they were not put on trial along with the main accused-
appellant Mahender Singh. It was only at the stage of Section 319, Cr.P.C.
the accused persons namely Prem Kumar Gulati and his wife were summoned and
put on trial. Except dying declaration there is nothing on record to
strongly suggest that they were involved in the commission of crime. There
is nothing in the findings of sessions court which suggest that the said
accused persons participated in the commission of the aforesaid crime, and
this fact has been reiterated by the High Court also.
19. As noticed above, in the dying declaration, the deceased declared that
her husband Mahender Singh along with the accused Prem Kumar Gulati and
Bimla (deceased) have poured kerosene oil upon her. Except that, nothing
has been said in the dying declaration as against the accused Prem Kumar
Gulati or his wife- Bimla as to which accused poured kerosene oil upon her
and the accused lighted the fire. In the later part of dying declaration,
the deceased stated that her husband Mahender Singh used to reside with his
Bhabhi. After drinking liquor, she was beaten up by her husband with lathi
and shoes. In other words, in her dying declaration she said that her
husband Mahender Singh used to beat her after drinking liquor. There is no
eye-witness to the occurrence. PW-2, the police officer deposed that he
recorded the statement of several persons and collected all the papers
including ration card and compromise letter written to the Panchayat etc.
He further deposed that during the investigation, the accused Prem Kumar
and Bimla were found innocent as they were living separately. Although
the trial court and the appellate court convicted both the accused Prem
Kumar Gulati and his wife Bimla, but after scrutiny of all the evidence, we
are of the view that there are no corroborative evidence to come to the
conclusion that these two participated along with the main accused Mahender
Singh for the commission of the offence. As noticed above, one of the
accused Bimla already expired. We do not find any reason why Prem Kumar
also participated in the commission of the offence. Admittedly, neither in
the dying declaration nor in the statement of witnesses it has come in
light as to what act was done by the accused- Prem Kumar.
20. In our considered opinion, the benefit of doubt should be given to
accused-appellant Prem Kumar and his conviction cannot be sustained.
21. Sufficient evidence has come on record and the prosecution has
established the case that it was Mahender Singh at whose instance and
instigation she was subjected to death by pouring kerosene oil and lit on
fire. We are, therefore, of the view that the finding recorded by the
trial court as also by the Appellate Court as against main accused Mahnder
Singh (husband of the deceased) cannot be interfered with.
22. We, therefore, dismiss Criminal Appeal No. 1423 of 2009 and uphold
the conviction of Mahender Singh.
23. Criminal Appeal No.1422 of 2009 is allowed and the appellant Prem
Kumar Gulati is acquitted from charges. He is directed to be released
forthwith.
…………………………….J.
(M.Y. Eqbal)
…………………………….J.
(Pinaki Chandra Ghose)
New Delhi,
September 23, 2014.
