IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 432 / 1989 Smt. [ENTITY] wife of Shri [ENTITY] b/c Musalman, r/o Naya Talab, Inside Nagori Gate, Jodhpur Appellant Versus [ENTITY] Respondent Counsel For Appellant : Mr. [ENTITY], Sr. Advocate with Mr. [ENTITY], Advocate Counsel For Respondent : Mr. [ENTITY] HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE [ENTITY]
Judgment on Board Per Hon'ble the Chief Justice 03/01/2017 The Appellant stands convicted under [SECTION] [ACT] to life imprisonment with fine and default stipulation by the Additional Sessions Judge No.3, Jodhpur in [CASE NUMBER], dated 29.09.1989.
The deceased is the daughter-in-law of the Appellant, aged about 20 years married approximately five months ago. She suffered II and III degree burns in the matrimonial home on 20.08.1988 at about 9:00 pm and was taken to the hospital by her father-in-law DW-1, [ENTITY] and her husband DW-3, (2 of 12) [CASE NUMBER] [ENTITY] . She expired during the course of treatment at 7:10 am on 27.08.1988. On 24.08.1988 her statement, Exhibit P/3 was recorded by the Additional Chief Judicial Magistrate, Jodhpur PW-6, [ENTITY] at 10:55 am followed by another statement recorded by PW-6/2, ASI [ENTITY] at 11:30 am which was registered as an FIR. The police statement of the deceased was recorded on 25.08.1988. In all these three statements the deceased stated that the Appellant had poured kerosene oil on her and set fire.
Learned Counsel for the Appellant submitted that the clothes of the deceased accidentally caught fire while cooking. She was taken to the hospital and her parents PW-1, Smt. [ENTITY] and her father PW-2, [ENTITY] were informed immediately. They also came to the hospital at night itself. The two witnesses stated that the deceased told them in the hospital at night that her clothes accidentally caught fire while cooking. PW-7/2, ASI [ENTITY] came to the hospital the same night at 10:45 pm. The parents of the deceased also stated that the deceased never complained of any ill treatment by the Appellant or any other family member.
The deceased lived with her husband and cooked in one room of the house at the biding of the Appellant's husband as the husband of the deceased was unemployed and tenants resided in other rooms of the house. PW-4, [ENTITY] an erstwhile tenant at the time of occurrence, PW-5,Abdul Rashid another tenant have both stated that the deceased was never ill treated in her matrimonial home. There is no ostensible reason why the (3 of 12) [CASE NUMBER] Appellant would kill her daughter-in-law for no rhyme or reason.
Half burnt wood has been found in the room at the place for cooking with an upturned pan suggesting that food was being cooked when the occurrence took place. The Trial Judge has cursorily dismissed the evidence of the Appellants husband DW-1, [ENTITY] and son DW-3, [ENTITY] husband of the deceased that they had tried to douse the fire by covering her with a towel and quilt respectively which has been found at the place of occurrence with pieces of burnt cloth on it simply reasoning that they were interested witnesses. If the occurrence took place at night inside the house naturally the only witnesses available would be the inmates of the house. DW-5, [ENTITY] another tenant had stated that the Appellant and others were watching TV in another room while the deceased was in her own room and that they all ran after hearing the cries of the deceased.
The only material against the Appellant relied upon by the Magistrate for conviction is the statement made by her on 24.08.1988 before the Additional Chief Judicial Magistrate PW-6, [ENTITY] treated as a dying declaration which has been held to be corroborated by her statement to the police the same day, Exhibit P/9 and her police statement the next day Exhibit P/11. The dying declaration does not bear the endorsement of the treating doctor regarding her consciousness and ability to make the statement. The deceased expired three days later and therefore it cannot be strictly considered as a dying declaration.
(4 of 12) [CASE NUMBER] An alternate argument was that PW-7, Dr. [ENTITY] who conducted the postmortem Exhibit P/4 has opined that the palm of the right hand and parts of the right hand were not fully burnt which were suggestive that a suicidal death could not be completely ruled out. The conviction was therefore not sustainable and ought to be set aside.
Counsel for the State submitted that the deceased was not in a condition to make any statement when she was admitted on 20.08.1988 at night due to morphine injection as certified by the treating doctor. The treating doctor certified on 24.08.1988 at 10:50 am that the deceased was in a fit condition to make statement and only thereafter her statement was recorded by the Magistrate the same day at 10:55 am. The police also recorded her statement at 11:30 am and her statement under [SECTION] [ACT] was recorded the next day. In all of them she consistently stated that the Appellant had poured kerosene oil and set her on fire. It is not mandatory that the dying declaration, Exhibit P/3 recorded by the Magistrate should bear the signature or certificate of the doctor regarding the ability of the deceased to make any statement. Absence of the same cannot vitiate the dying declaration recorded by the Magistrate which carries its own credibility relying on [PRECEDENT]. It was lastly submitted that there is no reason why the deceased would falsely implicate her mother-in-law and that too at the time of her death when a person is presumed to be stating the truth.
We have considered the submissions on behalf of (5 of 12) [CASE NUMBER] parties and perused the evidence on record.
The deceased was aged about 20 years married approximately five months ago. There is no evidence whatsoever placed by the prosecution regarding any ill treatment of the deceased in the matrimonial home for dowry or any other reason. On the contrary independent prosecution witnesses who resided in the same house on the date of occurrence have all stated that the relations between the deceased and her matrimonial home were cordial. The deceased resided with her husband in a one room tenement of the house in which she cooked her food also.
The deceased suffered burn injuries at about 9:00 pm on 20.8.1988. She was taken to the hospital by her husband and father-in-law at 9:50 pm evident from her bed head ticket which for no explicable reason was not exhibited and marked as an Exhibit by the prosecution. The doctor who prepared the bed head ticket was not made a prosecution witness and neither his name has been disclosed by PW-7/2, ASI [ENTITY] who went to the hospital the same night about 10:45 pm but did not record the statement of the deceased ostensibly because she was under the influence of morphine suggesting unconsciousness. The bed head ticket bears endorsement of the doctor at 10:40 pm that the patient was conscious.
The prosecution story that the deceased was unconscious and not in position to make any statement on 20.08.1988 therefore collapses completely. The investigation and the manner the prosecution conducted the case is shoddy which does not inspire confidence in the investigation at all. The failure (6 of 12) [CASE NUMBER] of the police to record the statement of the deceased at the first opportunity as also of the treating doctor raises grave doubts with regard to the conduct of the police in falsely implicating the Appellant for reasons better known to it. The entry in the bed head ticket regarding the physical condition of the deceased lends credence to the evidence of the parents of the deceased who reached the hospital immediately that their daughter was conscious when they reached and had told them that she accidentally caught fire while cooking.
Exhibit P/5 which is the description of the place of occurrence notices the availability of a towel partially burnt with burnt pieces of cloth on it as also a quilt in similar condition. It was the specific defence of the father-in-law DW-1, [ENTITY] and her husband DW-3, [ENTITY] that they had tried to douse the fire. There has been complete non appreciation of this evidence and defence by the Trail Judge simply holding that they were interested witnesses. If the occurrence took place at night inside the house naturally the only witnesses available would be the inmates. Similarly the fact that an iron pan used for cooking and half burnt pieces of wood were found at the place of occurrence has also not been considered by the Trial Judge. The conduct of the defence in having taken the deceased to the hospital immediately for treatment is a mitigating factor because if the intention was to kill her they would never have taken her to the hospital immediately and informed her parents.
The doctor has opined that because the right palm was not burnt and the right arm was also not fully burnt, the possibility (7 of 12) [CASE NUMBER] of a suicidal death could not be ruled out completely. The fact that the deceased may have suffered second and third degree burns over her body cannot lead to a conclusive presumption by itself that the appellant had set her on fire. The evidence of DW-5, [ENTITY] another tenant that the Appellant was also watching TV with them in another room at the time of occurrence has also not been considered.
The only material on which the Trail Judge has relied upon to convict the Appellant is the statement of the deceased made before PW-6, the Magistrate on 24.08.1988 in the morning treated as a dying declaration which finds corroboration from the statement made by the deceased a little later before the police and the subsequent police statement on 25.08.1988 after the FIR was registered.
A dying declaration which otherwise comes in the category of hearsay evidence finds admissibility under [SECTION] of the [ACT] It alone can also form the basis for conviction if it inspires confidence in the Court as having been made by the victim voluntarily under imminent threat of death and appeared natural with no circumstances to suggest doubting its credibility. It would however be prudent to consider the entirety of the evidence along with all surrounding circumstances of a case to arrive at a just conclusion whether conviction ought to be done on basis of the same alone or not. The presumption that a person would not be lying when so near to its maker cannot be stretched to the extreme so as to accept it irrespective of all other factors.
Considering the relevancy and acceptability of a dying (8 of 12) [CASE NUMBER] declaration as a basis for conviction it was observed in [PRECEDENT] as follows :-
"20. The philosophy of law which signifies the importance of a dying declaration is based on the maxim nemo moriturus praesumitur mentire, which means, "no one at the time of death is presumed to lie and he will not meet his Maker with a lie in his mouth".
Though a dying declaration is not recorded in the court in the presence of the accused nor is it put to strict proof of cross-examination by the accused, still it is admitted in evidence against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long as it inspires confidence in the mind of the court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death.
21. In spite of all the importance attached and the sanctity given to the piece of dying declaration, the courts have to be very careful while analysing the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of prompting or tutoring.
22. The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in [PRECEDENT], taking into consideration the earlier judgments of this Court in [PRECEDENT] and another judgment of this Court in [PRECEDENT] has given certain guidelines while considering a dying declaration:
"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(9 of 12) [CASE NUMBER]
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
The deceased was taken to the hospital immediately at night. The bed head ticket reveals that the police was informed and came immediately which is corroborated by PW-7/2, ASI [ENTITY]. Contrary to his statement that the deceased was uncon- scious and therefore he could not record her statement, the bed head ticket states that she was conscious. Surely she must have made some disclosure to the doctor who may have first attended to her. The prosecution has not led evidence of the doctor much less even disclosed his name. No reason for the same is disclosed (10 of 12) [CASE NUMBER] by the prosecution. The first statement that the deceased may have made with regard to the occurrence is therefore considered very crucial and the withholding of the same by the prosecution without any explanation persuades the Court to draw an adverse inference. The deceased while conscious and had told her parents at the hospital the same night that she had accidentally caught fire while cooking. In [PRECEDENT] it was observed as follows :-
"11 It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away; or because the statement has not been properly recorded, for example, the statement had been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement "
The prosecution has not placed any evidence that the deceased remained unconscious from the time of admission in the hospital till 24.08.1988 when her statement was recorded or even that she was under imminent threat of death when she gave her statement to the Magistrate. The question is not with regard to the truthfulness of the fact that she made any state- ment before a Magistrate but the veracity, correctness and relia- bility of the statement made. In the facts of the case, her state- ment before the Magistrate does not inspire confidence in the Court as to having been made voluntarily and the possibility of (11 of 12) [CASE NUMBER] tutoring cannot be excluded completely. In [ENTITY] (supra) it was further observed as follows:-
"17. 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. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case "
The deceased survived for seven days. No material has been placed by the prosecution why her statement was recorded on 24. 08. 1988 when it does not appear from the bed head ticket that she was under any imminent threat of death. In the cumula- tive facts and circumstances of the case it does not inspire confi- dence in the Court. The Trail Judge relied upon the statement of the deceased as a dying declaration which itself is tainted and sought corroboration for the same from further tainted evidence of the police. It is well settled as observed in [PRECEDENT] that one piece of unreliable (12 of 12) [CASE NUMBER] evidence cannot be used to corroborate another piece of unreliable evidence in context of a case of dying declaration itself.
Gulzari lal (supra) relied upon by the State is completely distinguishable on its own facts. The dying declaration in that case was supported by the evidence of injured witnesses. The observation that a dying declaration made before a Magistrate was admissible and could be safely relied upon if it otherwise inspires confidence came to be made in the facts and circumstances of that case.
In conclusion we find it difficult to hold that the prosecution has established beyond all reasonable doubt that it was the appellant who poured kerosene oil on the deceased and set her on fire so as to exclude completely any possibility of the deceased having suffered accidental burn injuries while cooking.
The appeal is allowed. The appellant is acquitted but subject to her executing a bail bond of Rs.20,000/- with two sureties of like amount to the satisfaction of the Trial Judge under [SECTION] of the [ACT]. ([ENTITY] ([ENTITY] bjsh