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2007 DIGILAW 1343 (PNJ)

State Of Haryana v. Shardi

2007-07-17

MEHTAB S.GILL, NAWAB SINGH

body2007
Judgment Nawab Singh, J. 1. This is an appeal filed by the State against the judgment dated November 15, 1999 passed by learned Additional Sessions Judge, Jind, whereby above named respondents were acquitted in case registered against them vide First Information Report No. 134 dated March 30, 1998 under Sections 302, 109 and 498-A read with Section 34 of Indian Penal Code at Police Station Sadar Narwana. 2. The prosecution case is that on March 30, 1998 at about 8.50 a.m. Rani (deceased) wife of Krishan accused-respondent was brought to General Hospital, Narwana having burn injuries on her person. Dr. B.R. Kayat (PW-11) sent the information to Police Station Sadar, Narwana. On receipt of the information, Umed Singh, Assistant Sub Inspector (PW-9) (for short `ASI) reached the hospital. He moved application (Exhibit PJ) to the Medical Officer to seek his opinion whether Rani was fit to make the statement or not ? Medical Officer, vide his endorsement (Exhibit PJ-1), opined that Rani was fit to make the statement. Investigator moved an application (Exhibit PR) to Shri Baljit Singh, Judicial Magistrate, Narwana (PW-10) requesting him to record the statement of Rani. Shri Baljit Singh reached hospital at 11.10 a.m. He sought the opinion (Exhibit PR-1) of Dr. B.R. Kayat (PW-11), whereby Rani was declared fit to make the statement. 3. Shri Baljit Singh, Judicial Magistrate, Narwana (PW-10) recorded the statement (Exhibit PR-2) of Rani in question-answer form. The English translation of the statement (Exhibit PR-2) made by Rani would read thus :- "I was married to Krishan 18/19 years ago. I am living at my in-laws house with my husband Krishan for the last 13 years. My husband is a drunkard. He used to harass me. He daily used to come after consuming liquor. Whenever I used to give her (him?) meals, he used to throw the utensils. I have two sons, aged nine years and seven years. Right from the beginning, my husband used to beat me after consuming liquor. He also used to say that he had to purchase a vehicle and asked me to bring money from my father. My mother-in-law used to instigate him. I took out the kerosene from the stove. Today in the morning at 7, my husband poured kerosene on me and set me ablaze. Kerosene was taken from the stove by me to lit the fire. My husband was a drunkard. My mother-in-law used to instigate him. I took out the kerosene from the stove. Today in the morning at 7, my husband poured kerosene on me and set me ablaze. Kerosene was taken from the stove by me to lit the fire. My husband was a drunkard. He used to give me beating. My father-in-law used to help me, but my mother-in-law did not help me. On the preceding night, my husband came at the house in drunken condition accompanied by Bedu and asked me to prepare tea. I prepared the tea and gave him. My father-in-law and Nanad extinguished the fire. My husband also extinguished the fire. I was set on fire in the court-yard of the house. On hearing my shrieks, my father-in-law and Nanad came. My mother-in-law was standing near the hearth (Chulha) when my husband poured kerosene on me." 4. She appended her right thumb impression on her statement. The Magistrate further obtained the certificate (Exhibit PR-3) of the Medical Officer that Smt. Rani remained conscious during the period she made the statement. Certificate (Exhibit PR-4) was also given by the Magistrate mentioning the sequence of the proceedings carried out by him. 5. On the statement (Exhibit PR-2) of Rani, which later on became the dying declaration, case under Sections 109, 307 and 498-A read with Section 34 of Indian Penal Code (for short `IPC) was registered at Police Station Sadar Narwana vide First Information Report (Exhibit PH-1) (for short `FIR) against Krishan, the husband and Shardi, the mother-in-law. 6. Rani was referred to Post Graduate Institute of Medical Sciences, Rohtak. She succumbed to her injuries at 6.10 a.m. on April 2, 1998. Offence under Section 302 IPC was added. 7. After completion of the investigation, the report under Section 173 Cr.P.C. was prepared and both the accused-respondents were sent up for trial. 8. The accused-respondents were charged under Sections 302, 498-A and 109 IPC. They pleaded not guilty and claimed to be tried. 9. In order to prove its case, prosecution examined Ramdhari (PW-1), Kuldeep (PW-2), Smt. Mamo (PW-3), Nirmala (PW-4), Mahavir Singh (PW-5), Jai Parkash Head Constable (PW-6), Sube Singh (PW-7), Abhey Ram (PW-8), Umed Singh ASI (PW-9), Shri Baljit Singh, SDJM, Jarwana (PW-10), Dr. B.R. Kayat (PW-11), Ram Kumar SI/SHO (PW-12), Inspector Ramphal (PW-13) and Dr. R.K. Wadhwa (PW-14). 10. 9. In order to prove its case, prosecution examined Ramdhari (PW-1), Kuldeep (PW-2), Smt. Mamo (PW-3), Nirmala (PW-4), Mahavir Singh (PW-5), Jai Parkash Head Constable (PW-6), Sube Singh (PW-7), Abhey Ram (PW-8), Umed Singh ASI (PW-9), Shri Baljit Singh, SDJM, Jarwana (PW-10), Dr. B.R. Kayat (PW-11), Ram Kumar SI/SHO (PW-12), Inspector Ramphal (PW-13) and Dr. R.K. Wadhwa (PW-14). 10. The accused-respondents were examined under Section 313 Cr.P.C. To explain the incriminating circumstances appearing in the prosecution evidence, they pleaded innocence. 11. In defence, the accused-respondents examined Ramdhari Dahiya Inspector, Food and Supplies, Narwana (DW-1) and Ramrati, mother of the deceased (DW-2). 12. Counsel for the State and the accused-respondents have been heard. 13. At the outset, it is pointed out that Ramdhari (PW-1), Mamo (PW-3) and Nirmala (PW-4) father, mother and sister-in-law of Rani deceased respectively, did not support the prosecution case. 14. The only evidence relied upon by the prosecution is the dying declaration (Exhibit PR-2) made by the deceased to the Judicial Magistrate. Therefore, the short question that arises is whether the dying declaration without corroboration can be acted upon by the Courts of law for conviction or not ? 15. Section 32(1) of the Indian Evidence Act lays down as follows :- "Statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases :- (1) When it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." 16. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." 16. A reading of the above section would bring it home that in order to constitute a dying declaration, it is not necessary that the man must die immediately or he must be under the contemplation of death at the time of making the statement. 17. The Honble Apex Court has observed in Padmaben Shamalbhai Patel v. State of Gujarat, 1991(1) RCR(Crl.) 487 (SC) that "a dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration, it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court, on strict scrutiny, finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable." 18. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable." 18. In another judgment Paniben v. State of Gujarat, 1992(3) RCR(Crl.) 552, the Honble Supreme Court of India summed up the principles of dying declaration with the following observations :- "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Courts also insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not a result of either tutoring, prompting or a produce of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence." 19. Testing the case in hand on the touchstone of the principles laid down in the decisions noted above, the position that emerges is that the dying declaration can be relied on notwithstanding that father, mother and sister-in-law of the deceased did not support the prosecution case. A person, who is on the verge of death shall seldom tell a lie. It is for this reason that the courts of law attach great importance to the last words of a person called a `dying declaration in legal parlance. When such dying declaration relates to the cause of death of the person making it shall be such a piece of evidence as would not require any corroboration if the dying declaration is free from blemish. When such dying declaration relates to the cause of death of the person making it shall be such a piece of evidence as would not require any corroboration if the dying declaration is free from blemish. In other words, when a dying declaration is unassailable and is not fraught with any flaw, it will be sufficient evidence by itself to sustain conviction of the accused named in the dying declaration as the killer by the deceased. 20. Let it now be seen, if there is any blemish in the dying declaration or any doubtful circumstance surrounding it ? 21. Shri Baljit Singh, SDJM, Narwana (PW-10) had recorded the dying declaration (Exhibit PR-2) on March 30, 1998. He reached Civil Hospital, Narwana at 11.15 a.m. He sought the opinion of Dr. B.R. Kayat (PW-11) to ascertain the condition of Smt. Rani that whether she was fit to make the statement or not. Dr. B.R. Kayat (PW-11), vide his endorsement/opinion (Exhibit PR-1) opined that Rani was fit to make the statement. Thereafter, Shri Baljit Singh, SDJM, Narwana (PW-10) recorded the statement (Exhibit PR-2) in the presence of Dr. B.R. Kayat (PW-11). Dr. B.R. Kayat (PW-11) categorically stated that Rani was fit to make the statement. It was also stated by him that she had superficial to deep burns over the body to the extent of 75%. He has also proved the certificates (Exhibit PR-1 and Exhibit PR-3) in this connection. It has been stated by Shri Baljit Singh that he recorded the statement (Exhibit PR-2) of Rani in question-answer form and after recording the same, understanding the contents of the statement as correct, she appended her right thumb impression on it. 22. It was stated by the deceased in clear and unambiguous manner that the accused-husband poured kerosene upon her and then set her ablaze and used to treat her with cruelty. 23. In this case, dying declaration does not leave anything vague. It is free from blemish. The act of the Magistrate cannot be suspected when he records the dying declaration as a part of the judicial function, which carries great sanctity. Opinion of the doctor was obtained and deceased remained fit to make statement during the course of recording the dying declaration. There is no evidence that there was any body else to influence her. 24. The act of the Magistrate cannot be suspected when he records the dying declaration as a part of the judicial function, which carries great sanctity. Opinion of the doctor was obtained and deceased remained fit to make statement during the course of recording the dying declaration. There is no evidence that there was any body else to influence her. 24. Learned counsel for the accused-respondents, supporting the judgment of the trial Court, has pointed out that the benefit of doubt should be given to the husband because he was the person who tried to extinguish the fire and as a result thereof, he received burn injuries on his hands. 25. This Court does not concur with the contention of the learned counsel for the accused-respondents. When burn injuries are found on the hands etc. of the accused in case of bride burning etc. it shall be a relevant circumstance to be taken into consideration along with other circumstances pointing to the innocence of the husband or whoever is accused of the crime of causing death by burning. It was stated by the deceased in her statement (Exhibit PR-2) that her father-in-law and Nanad extinguished the fire. Her husband also extinguished the fire. Since father and sister of Krishan accused-respondent tried to extinguish the fire, Krishan husband had no option but to join them in extinguishing the fire. Had there been any falsity in the statement (Exhibit PR-2) of Rani, she would have been the last person to say that her husband also extinguished the fire. It is one of the factors, which strengthens the consideration that the dying declaration was spontaneous and truthful. Dr. R.K. Wadhwa (PW-14) conducted the Post Mortem on the dead body of Rani on April 3, 1998 and opined that the death occurred due to burn injuries and the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature. The circumstance would further strengthen the duly proved an (and ?) unequivocal dying declaration. Learned trial Judge, in this case, fell in serious error by putting the circumstance of presence of burn injuries on the hands of the accused at a higher but unmerited pedestal and putting the dying declaration in the background. The circumstance would further strengthen the duly proved an (and ?) unequivocal dying declaration. Learned trial Judge, in this case, fell in serious error by putting the circumstance of presence of burn injuries on the hands of the accused at a higher but unmerited pedestal and putting the dying declaration in the background. The importance and emphasis, which ought to have been put on the dying declaration were wrongly put on the said circumstance of burn injuries on the hands of the accused in negation of the settled proposition of law governing dying declaration. The entire approach of the trial Judge was lopsided and rather contumacious. 26. So far as Smt. Shardi mother-in-law respondent No. 1 is concerned, there is no reference to any act on her part in the dying declaration. She was only standing near the hearth (Chulha) when Krishan accused-respondent No. 2 poured the kerosene on Rani and set her ablaze. Shardi was, thus, rightly acquitted by the trial Court. Hence, the appeal filed against the acquittal of Smt. Shardi fails and is dismissed. 27. The appeal filed by the State against the acquittal of Krishan accused- respondent No. 2 is accepted. Resultantly, the impugned judgment of acquittal is set aside qua Krishan accused-respondent No. 2, who is held guilty of offence under Section 302 IPC and is convicted thereunder. Since it does not fall within the category of `rarest of rare cases, this Court sentences accused-respondent No. 2 to undergo imprisonment for life and to pay a fine of Rs. 10,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for one year. He be arrested and sent to jail to undergo the sentence passed. Trial Judge is directed to comply with this order forthwith under intimation to this Court. Order accordingly.