REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.865-866 OF 2013
STATE OF MAHARASHTRA ...Appellant(s)
:Versus:
NISAR RAMZAN SAYYED ...Respondent(s)
JUDGMENT
Pinaki Chandra Ghose, J.
1. These appeals have been directed against the judgment and order dated
19th March, 2012 passed by the High Court of Judicature at Bombay,
Bench at Aurangabad, in Confirmation Case No.1 of 2011 with Criminal
Appeal No.584 of 2011, whereby the conviction order dated 22nd
September, 2011 passed by learned District Judge-3 and Additional
Sessions Judge, Shrirampur, against the respondent herein was quashed
and set-aside. The Confirmation Case No.1 of 2011 was filed by the
State for confirmation of the death sentence awarded to the accused
respondent. The High Court, however, rejected the death sentence and
acquitted the accused respondent.
2. The brief facts leading to present criminal appeals may be summarized
as follows:
Respondent Nisar Ramzan Sayyed got married with one Summayya
(deceased herein) on 30.03.2007. After the marriage they were jointly
living with the respondent’s family and were blessed with a male
child, namely Sayej who was three years old on the fateful day of
incident. The deceased was seven months pregnant at the time of the
incident. The respondent and his family members treated Summayya well
for a period of one year after the marriage. Thereafter, the
respondent started ill-treating her on the pretext of demand of
Rs.50,000/- for purchasing an auto rickshaw. As the financial
condition of the father of Summayya was poor, the said demand could
not be met. The respondent continued the act of ill-treatment with the
deceased. On 29th October, 2010 at 5:00 a.m. the respondent herein
allegedly set the deceased on fire by pouring kerosene oil and also
threw the son (Sayej) on the burning body of the deceased. Summayya
and her son sustained burn injuries. Thereafter the deceased was taken
to the hospital by the respondent but her son died on the spot due to
burn injuries. The deceased succumbed to her injuries on 3rd November,
2010 after giving birth to a dead baby fetus.
3. Law was set into motion against the respondent and his family members
when FIR No.I-227 of 2010 was lodged at Police Station Newasa at the
instance of one Nisar Ashraf Pathan after registration of report AD
No.91 of 2010 under Section 174 of Code of Criminal Procedure. Learned
Additional Sessions Judge while taking cognizance on the basis of
charge-sheet No.12 of 2011 received on 27.01.2011 initiated Sessions
Case No.18 of 2011 and vide his judgment and order dated 22nd
September, 2011 convicted the respondent herein for the offence
punishable under Sections 302 and 498-A of the Indian Penal Code, 1860
and sentenced him to suffer death sentence and pay a fine of Rs.2000/-
. Five other accused who were family members of the respondent were,
however, acquitted from all the charges.
4. The respondent herein preferred Criminal Appeal No.584 of 2011 before
the High Court against the above-noted conviction order and the State
of Maharashtra filed Confirmation Case No.1 of 2011 for confirmation
of the death sentence awarded to the respondent by the Trial Court.
The High Court vide impugned judgment quashed and set-aside the
conviction order passed against the respondent herein and
consequently, the death sentence confirmation case was dismissed.
Hence, the present appeals before us by the State of Maharashtra.
5. We have heard the learned counsel on both sides. On a perusal of the
judgments passed by the High Court and the Trial Court, we find that
in the present case there is no eye-witness of the incident and the
prosecution has been totally depending upon the dying declarations of
the deceased, namely, Summayya. There are three written and three oral
dying declarations. Since there is no direct evidence but only dying
declarations of the deceased and proof proffered by the prosecution,
tested by the conventional process of cross-examination and the
standard yardsticks of credibility, we confine ourselves to the
contentious issue of acquittal order and its legality.
6. From a perusal of the records of the Courts below, we have noticed
that there are three written dying declarations viz, Exhibit No.61,
Exhibit No.67 and Exhibit No.73, recorded before PW8–Dr.Prabhakar, PW7-
ASI Argade and Circle Inspector, respectively. Three oral dying
declarations were given before PW-1, PW-2 and PW-3, respectively. The
role attributed to accused No.1 (respondent herein) is consistent in
all the dying declarations whereby it has been proved beyond all
reasonable doubt that the respondent herein had poured kerosene on his
wife and set her on fire in their house itself during early hours of
29th October, 2010. The demand of an amount of Rs.50,000/- by accused
No.1 was also reiterated by the deceased in her dying declarations.
The Medical Officer gave his opinion in the letter issued by PW7-ASI
Argade, inquiring about the conscious mental state of the deceased
while stating the cause of the burn injuries on the victim wife. The
Trial Court has rightly relied on the judgment passed by this Court in
Satish Ambanna Bansode Vs. State of Maharashtra, (2009) 11 SCC 217,
wherein this court reiterated the principles governing dying
declaration which had been elaborately discussed in an earlier
decision of Paniben Vs. State of Gujarat, (1992) 2 SCC 474 in para 18.
Relevant part of the relied judgment is reproduced herein below:
“14…. (i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration.
[See: Munnu Raja v. State of M.P. (1976) 3 SCC 104]
(ii) If the court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. [See: State of U.P. v. Ram Sagar Yadav (1985) 1
SCC 552, and Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
(iii) The court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the result
of tutoring, prompting or imagination. The deceased had an
opportunity to observe and identify the assailants and was in a
fit state to make the declaration. [See: K. Ramachandra Reddy v.
Public Prosecutor (1976) 3 SCC 618].
(iv) Where a dying declaration is suspicious, it should not be
acted upon without corroborative evidence. [See: Rasheed Beg v.
State of M.P., (1974) 4 SCC 264.]
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be
rejected. [See: Kake Singh v. State of M.P., (1981) Supp. SCC
25.]
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. [See: Ram Manorath v. State of
U.P., (1981) 2 SCC 654.]
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. [See
State of Maharashtra v. Krishnamurti Laxmipati Naidu, (1980)
Supp. SCC 455.]
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See: Surajdeo Ojha v. State
of Bihar, (1980) Supp. SCC 769]
(ix) Normally, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eyewitness said that the deceased was in a fit and conscious
state to make the dying declaration, the medical opinion cannot
prevail. [See: Nanhau Ram v. State of M.P., (1988) Supp. SCC
152.]
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon. [See: State of U.P. v. Madan Mohan (1989) 3 SCC
390.]
(xi) Where there are more than one statements in the nature of
dying declaration, the one first in point of time must be
preferred. Of course, if the plurality of the dying declaration
could be held to be trustworthy and reliable, it has to be
accepted. [See: Mohanlal Gangaram Gehani v. State of
Maharashtra, (1982) 1 SCC 700.]”
In our considered opinion the High Court erred in acquitting the
respondent herein as the spot Panchnama, being Exhibit-86, was duly
proved by PW11-Investigating Officer of the case whereby recovery of
kerosene mixed soil, burnt pieces of Saree and Blouse etc. etc. was
proved.
7. We have also noticed that factum of pregnancy before death of deceased
was also proved by PW9-Dr. Nitin Sudhakar Samudra. The typical conduct
of the accused respondent also describes his guilty intention of
neglecting his wife when she was on death bed as there is no evidence
on record to prove that the respondent got the deceased admitted in
Wadala Mission Hospital. From the testimony of the Investigating
Officer during the cross-examination, it has been proved that the
height between floor and the roof of spot of incident is 13 to 14 feet
and the roof is covered by dried sugarcane leaves which were put on
the plastic gunny bags. The Trial Court has rightly appreciated that
it is not possible to cause any damage to the said roof due to the
incident.
8. Mr. Kunal A. Cheema, learned counsel appearing for the State of
Maharashtra contended that under these circumstances the respondent
and other accused had caused triple murder in one shot and taken lives
of innocent and helpless persons, including a human being who had not
even seen the light of the day. It was further submitted by the
learned counsel that the officers of Executive Magistrate’s office are
independent persons and as a matter of safety, the statements are kept
in sealed condition to prevent tampering or manipulating the same.
Therefore, there is no reason to doubt Ext.-61. Furthermore, once the
dying declarations are duly proved and it is admitted that the
deceased and the minor child were in the custody of the accused
persons, it is for the accused to show that facts were otherwise.
Learned counsel further argued that the delay in registering the FIR
was due to the fact that the incident happened in the jurisdiction of
different police stations and the hospital in which treatment was
given was in different jurisdiction, as could be seen from the FIR,
Ext.67 and Ext.61.
9. Per Contra, Mr. Atul Babasaheb Dakh, learned counsel appearing for the
respondent argued that albeit admittedly, the roof of the house was
made of sugarcane leaves, there were domestic articles and utensils
kept in the room of the accused. As per the arguments advanced by the
learned counsel for the respondent, the prosecution failed to prove
that the alleged incident took place in the house as there was no sign
of burning on the roof (chhappar) of the house. The same was stated by
PW10 – Police Head Constable who was the first person to visit the
place of occurrence and this was corroborated by the I.O. who had
conducted spot Panchnama. It was further argued that the dying
declaration Ext.-67 cannot be made admissible with regard to the place
of occurrence because PW-10 in his statement has averred that the dead
body of 3-year old son was found at a distance of 200-250 ft. away
from the house of the accused. The learned counsel for the respondent
concluded his arguments by submitting that the dying declarations,
which suffered from infirmity, cannot form the basis of conviction and
in support of this he relied upon judgment of this Court in Surinder
Kumar Vs. State of Haryana, (2011) 10 SCC 173, wherein this Court
observed:
“28. Though there is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration but
the court must be satisfied that the dying declaration is true
and voluntary and in that event, there is no impediment in
basing conviction on it, without corroboration. It is the duty
of the court to scrutinise the dying declaration carefully and
must ensure that the declaration is not the result of tutoring,
prompting or imagination. Where a dying declaration is
suspicious, it should not be acted upon without corroborative
evidence. Likewise, where the deceased was unconscious and could
never make any declaration the evidence with regard to it is
rejected. The dying declaration which suffers from infirmity
cannot form the basis of conviction. All these principles have
been fully adhered to by the trial court and rightly acquitted
the accused and on wrong assumption the High Court interfered
with the order of acquittal.”
10. Respondent herein in his statement under Section 313 of the Code of
Criminal Procedure, 1973 has stated about the threat by his wife of
committing suicide. He has further stated that he had made a complaint
to Newasa Police Station. However, the Trial Court has rightly
appreciated the evidence on record whereby it was proved from the N.C.
Register of Newasa Police Station that no such complaint was lodged by
the respondent herein during the relevant days. On the date of the
incident the respondent and his deceased wife were in their house and
that the deceased met an unnatural death has been proved by medical
evidence. Under these circumstances where there is no other eye-
witness to the incident, the failure on the part of the accused
respondent to explain how his pregnant wife and their minor child met
with unnatural death due to burn injuries sustained at their house
leads to an inference which goes against the accused respondent. This
relevant proposition of law was discussed by this Court in the case of
Swamy Shraddananda Vs. State of Karnataka, (2007) 12 SCC 288. The
relevant part of the judgment is reproduced hereunder:
“If it is proved that the deceased died in an unnatural
circumstance in her bed room, which was occupied only by her and
her husband, law requires the husband to offer an explanation in
this behalf. We, however, do not intend to lay down a general
law in this behalf as much would depend upon the facts and
circumstances of each case. Absence of any explanation by the
husband would lead to an inference which would lead to a
circumstance against the accused.”
11. It is also discussed by this Court in the case of Munna Kumar Upadhyay
Vs. State of Andhra Pradesh, (2012) 6 SCC 174 at para 73 as follows:
“It is a settled law that the statement under Section 313 CrPC
is to serve a dual purpose, firstly, to afford to the accused an
opportunity to explain his conduct and secondly to use denials
of established facts as incriminating evidence against him...”
12. Astonishingly we have found the dying declarations of the deceased
with consistent allegations about demand of dowry and modus operandi
of the offence which resulted into the death of the declarant and her
minor child. Before coming to the conclusion in the present case, we
would like to emphasize on the principle enumerated in the famous
legal maxim of the Law of Evidence i.e., Nemo Moriturus Praesumitur
mentire which means a man will not meet his maker with a lie in his
mouth. Our Indian Law also recognizes this fact that “a dying man
seldom lies” or in other words “truth sits upon the lips of a dying
man”. The relevance of this very fact, though exception to rule of
hearsay evidence, has been discussed in numerous judgments of this
Court including Uka Ram Vs. State of Rajasthan, (2001) 5 SCC 254;
Babulal & Ors. Vs. State of M.P., (2003) 12 SCC 490; Muthu Kutty &
Anr. Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors. Vs. State of Uttar
Pradesh, (2008) 17 SCC 337; Lakhan Vs. State of Madhya Pradesh, (2010)
8 SCC 514.
13. The various circumstances pointing out to the guilt of the respondent
and respondent alone have been enumerated by us hereinbefore. From our
discussions, it is evident that each of the circumstances had been
established, the cumulative effect whereof would show that all the
links in the chain are complete and the conclusion of the guilt is
fully established. Therefore, in our considered opinion the respondent
herein is guilty of the offence causing death of his pregnant wife and
minor child.
14. The next question, however, is as to whether in a case of this nature
death sentence should be awarded. A life is at stake subject to human
error and discrepancies and therefore the doctrine of ‘rarest of rare
cases’, which is not res-integra in awarding the death penalty, shall
be applied while considering quantum of sentence in the present case.
Not so far but too recently, the Law Commission of India has submitted
its Report No.262 titled “The Death Penalty” after the reference was
made from this Court to study the issue of Death Penalty in India to
“allow for an up-to-date and informed discussion and debate on this
subject”. We have noticed that the Law Commission of India has
recommended the abolition of death penalty for all the crimes other
than terrorism related offences and waging war (offences affecting
National Security). Today when capital punishment has become a
distinctive feature of death penalty apparatus in India which somehow
breaches the reformative theory of punishment under criminal law, we
are not inclined to award the same in the peculiar facts and
circumstances of the present case. Therefore, confinement till natural
life of the accused respondent shall fulfill the requisite criteria of
punishment in peculiar facts and circumstances of the present case.
15. Hence, the judgment and order passed by High Court is hereby set aside
and that of the Trial Court is restored with regard to conviction of
the accused respondent. However, in the light of the above noted
discussions, the death sentence awarded by the Trial Court is hereby
modified to ‘life imprisonment’ which will mean imprisonment for the
natural life of the respondent herein. The criminal appeals are
allowed accordingly in the afore-stated terms.
. . . . . . . . . . . . . . . .
. . . . .J
(Pinaki Chandra Ghose)
. . . . . . . . . . . . . . .
. . . . . .J
(Rohinton Fali Nariman)
New Delhi;
April 07, 2017.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.865-866 OF 2013
STATE OF MAHARASHTRA ...Appellant(s)
:Versus:
NISAR RAMZAN SAYYED ...Respondent(s)
JUDGMENT
Pinaki Chandra Ghose, J.
1. These appeals have been directed against the judgment and order dated
19th March, 2012 passed by the High Court of Judicature at Bombay,
Bench at Aurangabad, in Confirmation Case No.1 of 2011 with Criminal
Appeal No.584 of 2011, whereby the conviction order dated 22nd
September, 2011 passed by learned District Judge-3 and Additional
Sessions Judge, Shrirampur, against the respondent herein was quashed
and set-aside. The Confirmation Case No.1 of 2011 was filed by the
State for confirmation of the death sentence awarded to the accused
respondent. The High Court, however, rejected the death sentence and
acquitted the accused respondent.
2. The brief facts leading to present criminal appeals may be summarized
as follows:
Respondent Nisar Ramzan Sayyed got married with one Summayya
(deceased herein) on 30.03.2007. After the marriage they were jointly
living with the respondent’s family and were blessed with a male
child, namely Sayej who was three years old on the fateful day of
incident. The deceased was seven months pregnant at the time of the
incident. The respondent and his family members treated Summayya well
for a period of one year after the marriage. Thereafter, the
respondent started ill-treating her on the pretext of demand of
Rs.50,000/- for purchasing an auto rickshaw. As the financial
condition of the father of Summayya was poor, the said demand could
not be met. The respondent continued the act of ill-treatment with the
deceased. On 29th October, 2010 at 5:00 a.m. the respondent herein
allegedly set the deceased on fire by pouring kerosene oil and also
threw the son (Sayej) on the burning body of the deceased. Summayya
and her son sustained burn injuries. Thereafter the deceased was taken
to the hospital by the respondent but her son died on the spot due to
burn injuries. The deceased succumbed to her injuries on 3rd November,
2010 after giving birth to a dead baby fetus.
3. Law was set into motion against the respondent and his family members
when FIR No.I-227 of 2010 was lodged at Police Station Newasa at the
instance of one Nisar Ashraf Pathan after registration of report AD
No.91 of 2010 under Section 174 of Code of Criminal Procedure. Learned
Additional Sessions Judge while taking cognizance on the basis of
charge-sheet No.12 of 2011 received on 27.01.2011 initiated Sessions
Case No.18 of 2011 and vide his judgment and order dated 22nd
September, 2011 convicted the respondent herein for the offence
punishable under Sections 302 and 498-A of the Indian Penal Code, 1860
and sentenced him to suffer death sentence and pay a fine of Rs.2000/-
. Five other accused who were family members of the respondent were,
however, acquitted from all the charges.
4. The respondent herein preferred Criminal Appeal No.584 of 2011 before
the High Court against the above-noted conviction order and the State
of Maharashtra filed Confirmation Case No.1 of 2011 for confirmation
of the death sentence awarded to the respondent by the Trial Court.
The High Court vide impugned judgment quashed and set-aside the
conviction order passed against the respondent herein and
consequently, the death sentence confirmation case was dismissed.
Hence, the present appeals before us by the State of Maharashtra.
5. We have heard the learned counsel on both sides. On a perusal of the
judgments passed by the High Court and the Trial Court, we find that
in the present case there is no eye-witness of the incident and the
prosecution has been totally depending upon the dying declarations of
the deceased, namely, Summayya. There are three written and three oral
dying declarations. Since there is no direct evidence but only dying
declarations of the deceased and proof proffered by the prosecution,
tested by the conventional process of cross-examination and the
standard yardsticks of credibility, we confine ourselves to the
contentious issue of acquittal order and its legality.
6. From a perusal of the records of the Courts below, we have noticed
that there are three written dying declarations viz, Exhibit No.61,
Exhibit No.67 and Exhibit No.73, recorded before PW8–Dr.Prabhakar, PW7-
ASI Argade and Circle Inspector, respectively. Three oral dying
declarations were given before PW-1, PW-2 and PW-3, respectively. The
role attributed to accused No.1 (respondent herein) is consistent in
all the dying declarations whereby it has been proved beyond all
reasonable doubt that the respondent herein had poured kerosene on his
wife and set her on fire in their house itself during early hours of
29th October, 2010. The demand of an amount of Rs.50,000/- by accused
No.1 was also reiterated by the deceased in her dying declarations.
The Medical Officer gave his opinion in the letter issued by PW7-ASI
Argade, inquiring about the conscious mental state of the deceased
while stating the cause of the burn injuries on the victim wife. The
Trial Court has rightly relied on the judgment passed by this Court in
Satish Ambanna Bansode Vs. State of Maharashtra, (2009) 11 SCC 217,
wherein this court reiterated the principles governing dying
declaration which had been elaborately discussed in an earlier
decision of Paniben Vs. State of Gujarat, (1992) 2 SCC 474 in para 18.
Relevant part of the relied judgment is reproduced herein below:
“14…. (i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration.
[See: Munnu Raja v. State of M.P. (1976) 3 SCC 104]
(ii) If the court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. [See: State of U.P. v. Ram Sagar Yadav (1985) 1
SCC 552, and Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
(iii) The court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the result
of tutoring, prompting or imagination. The deceased had an
opportunity to observe and identify the assailants and was in a
fit state to make the declaration. [See: K. Ramachandra Reddy v.
Public Prosecutor (1976) 3 SCC 618].
(iv) Where a dying declaration is suspicious, it should not be
acted upon without corroborative evidence. [See: Rasheed Beg v.
State of M.P., (1974) 4 SCC 264.]
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be
rejected. [See: Kake Singh v. State of M.P., (1981) Supp. SCC
25.]
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. [See: Ram Manorath v. State of
U.P., (1981) 2 SCC 654.]
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. [See
State of Maharashtra v. Krishnamurti Laxmipati Naidu, (1980)
Supp. SCC 455.]
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See: Surajdeo Ojha v. State
of Bihar, (1980) Supp. SCC 769]
(ix) Normally, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eyewitness said that the deceased was in a fit and conscious
state to make the dying declaration, the medical opinion cannot
prevail. [See: Nanhau Ram v. State of M.P., (1988) Supp. SCC
152.]
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon. [See: State of U.P. v. Madan Mohan (1989) 3 SCC
390.]
(xi) Where there are more than one statements in the nature of
dying declaration, the one first in point of time must be
preferred. Of course, if the plurality of the dying declaration
could be held to be trustworthy and reliable, it has to be
accepted. [See: Mohanlal Gangaram Gehani v. State of
Maharashtra, (1982) 1 SCC 700.]”
In our considered opinion the High Court erred in acquitting the
respondent herein as the spot Panchnama, being Exhibit-86, was duly
proved by PW11-Investigating Officer of the case whereby recovery of
kerosene mixed soil, burnt pieces of Saree and Blouse etc. etc. was
proved.
7. We have also noticed that factum of pregnancy before death of deceased
was also proved by PW9-Dr. Nitin Sudhakar Samudra. The typical conduct
of the accused respondent also describes his guilty intention of
neglecting his wife when she was on death bed as there is no evidence
on record to prove that the respondent got the deceased admitted in
Wadala Mission Hospital. From the testimony of the Investigating
Officer during the cross-examination, it has been proved that the
height between floor and the roof of spot of incident is 13 to 14 feet
and the roof is covered by dried sugarcane leaves which were put on
the plastic gunny bags. The Trial Court has rightly appreciated that
it is not possible to cause any damage to the said roof due to the
incident.
8. Mr. Kunal A. Cheema, learned counsel appearing for the State of
Maharashtra contended that under these circumstances the respondent
and other accused had caused triple murder in one shot and taken lives
of innocent and helpless persons, including a human being who had not
even seen the light of the day. It was further submitted by the
learned counsel that the officers of Executive Magistrate’s office are
independent persons and as a matter of safety, the statements are kept
in sealed condition to prevent tampering or manipulating the same.
Therefore, there is no reason to doubt Ext.-61. Furthermore, once the
dying declarations are duly proved and it is admitted that the
deceased and the minor child were in the custody of the accused
persons, it is for the accused to show that facts were otherwise.
Learned counsel further argued that the delay in registering the FIR
was due to the fact that the incident happened in the jurisdiction of
different police stations and the hospital in which treatment was
given was in different jurisdiction, as could be seen from the FIR,
Ext.67 and Ext.61.
9. Per Contra, Mr. Atul Babasaheb Dakh, learned counsel appearing for the
respondent argued that albeit admittedly, the roof of the house was
made of sugarcane leaves, there were domestic articles and utensils
kept in the room of the accused. As per the arguments advanced by the
learned counsel for the respondent, the prosecution failed to prove
that the alleged incident took place in the house as there was no sign
of burning on the roof (chhappar) of the house. The same was stated by
PW10 – Police Head Constable who was the first person to visit the
place of occurrence and this was corroborated by the I.O. who had
conducted spot Panchnama. It was further argued that the dying
declaration Ext.-67 cannot be made admissible with regard to the place
of occurrence because PW-10 in his statement has averred that the dead
body of 3-year old son was found at a distance of 200-250 ft. away
from the house of the accused. The learned counsel for the respondent
concluded his arguments by submitting that the dying declarations,
which suffered from infirmity, cannot form the basis of conviction and
in support of this he relied upon judgment of this Court in Surinder
Kumar Vs. State of Haryana, (2011) 10 SCC 173, wherein this Court
observed:
“28. Though there is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration but
the court must be satisfied that the dying declaration is true
and voluntary and in that event, there is no impediment in
basing conviction on it, without corroboration. It is the duty
of the court to scrutinise the dying declaration carefully and
must ensure that the declaration is not the result of tutoring,
prompting or imagination. Where a dying declaration is
suspicious, it should not be acted upon without corroborative
evidence. Likewise, where the deceased was unconscious and could
never make any declaration the evidence with regard to it is
rejected. The dying declaration which suffers from infirmity
cannot form the basis of conviction. All these principles have
been fully adhered to by the trial court and rightly acquitted
the accused and on wrong assumption the High Court interfered
with the order of acquittal.”
10. Respondent herein in his statement under Section 313 of the Code of
Criminal Procedure, 1973 has stated about the threat by his wife of
committing suicide. He has further stated that he had made a complaint
to Newasa Police Station. However, the Trial Court has rightly
appreciated the evidence on record whereby it was proved from the N.C.
Register of Newasa Police Station that no such complaint was lodged by
the respondent herein during the relevant days. On the date of the
incident the respondent and his deceased wife were in their house and
that the deceased met an unnatural death has been proved by medical
evidence. Under these circumstances where there is no other eye-
witness to the incident, the failure on the part of the accused
respondent to explain how his pregnant wife and their minor child met
with unnatural death due to burn injuries sustained at their house
leads to an inference which goes against the accused respondent. This
relevant proposition of law was discussed by this Court in the case of
Swamy Shraddananda Vs. State of Karnataka, (2007) 12 SCC 288. The
relevant part of the judgment is reproduced hereunder:
“If it is proved that the deceased died in an unnatural
circumstance in her bed room, which was occupied only by her and
her husband, law requires the husband to offer an explanation in
this behalf. We, however, do not intend to lay down a general
law in this behalf as much would depend upon the facts and
circumstances of each case. Absence of any explanation by the
husband would lead to an inference which would lead to a
circumstance against the accused.”
11. It is also discussed by this Court in the case of Munna Kumar Upadhyay
Vs. State of Andhra Pradesh, (2012) 6 SCC 174 at para 73 as follows:
“It is a settled law that the statement under Section 313 CrPC
is to serve a dual purpose, firstly, to afford to the accused an
opportunity to explain his conduct and secondly to use denials
of established facts as incriminating evidence against him...”
12. Astonishingly we have found the dying declarations of the deceased
with consistent allegations about demand of dowry and modus operandi
of the offence which resulted into the death of the declarant and her
minor child. Before coming to the conclusion in the present case, we
would like to emphasize on the principle enumerated in the famous
legal maxim of the Law of Evidence i.e., Nemo Moriturus Praesumitur
mentire which means a man will not meet his maker with a lie in his
mouth. Our Indian Law also recognizes this fact that “a dying man
seldom lies” or in other words “truth sits upon the lips of a dying
man”. The relevance of this very fact, though exception to rule of
hearsay evidence, has been discussed in numerous judgments of this
Court including Uka Ram Vs. State of Rajasthan, (2001) 5 SCC 254;
Babulal & Ors. Vs. State of M.P., (2003) 12 SCC 490; Muthu Kutty &
Anr. Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors. Vs. State of Uttar
Pradesh, (2008) 17 SCC 337; Lakhan Vs. State of Madhya Pradesh, (2010)
8 SCC 514.
13. The various circumstances pointing out to the guilt of the respondent
and respondent alone have been enumerated by us hereinbefore. From our
discussions, it is evident that each of the circumstances had been
established, the cumulative effect whereof would show that all the
links in the chain are complete and the conclusion of the guilt is
fully established. Therefore, in our considered opinion the respondent
herein is guilty of the offence causing death of his pregnant wife and
minor child.
14. The next question, however, is as to whether in a case of this nature
death sentence should be awarded. A life is at stake subject to human
error and discrepancies and therefore the doctrine of ‘rarest of rare
cases’, which is not res-integra in awarding the death penalty, shall
be applied while considering quantum of sentence in the present case.
Not so far but too recently, the Law Commission of India has submitted
its Report No.262 titled “The Death Penalty” after the reference was
made from this Court to study the issue of Death Penalty in India to
“allow for an up-to-date and informed discussion and debate on this
subject”. We have noticed that the Law Commission of India has
recommended the abolition of death penalty for all the crimes other
than terrorism related offences and waging war (offences affecting
National Security). Today when capital punishment has become a
distinctive feature of death penalty apparatus in India which somehow
breaches the reformative theory of punishment under criminal law, we
are not inclined to award the same in the peculiar facts and
circumstances of the present case. Therefore, confinement till natural
life of the accused respondent shall fulfill the requisite criteria of
punishment in peculiar facts and circumstances of the present case.
15. Hence, the judgment and order passed by High Court is hereby set aside
and that of the Trial Court is restored with regard to conviction of
the accused respondent. However, in the light of the above noted
discussions, the death sentence awarded by the Trial Court is hereby
modified to ‘life imprisonment’ which will mean imprisonment for the
natural life of the respondent herein. The criminal appeals are
allowed accordingly in the afore-stated terms.
. . . . . . . . . . . . . . . .
. . . . .J
(Pinaki Chandra Ghose)
. . . . . . . . . . . . . . .
. . . . . .J
(Rohinton Fali Nariman)
New Delhi;
April 07, 2017.
