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.
