HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR DB HON'BLE MR JUSTICE S.K.GANGELE HON'BLE MR JUSTICE ROHIT ARYA CRIMINAL APPEAL NO.208 OF 2002 [ENTITY] -Vs- State of MP Shri OP Mathur, Advocate for the appellant. Shri [ENTITY], Public Prosecutor for the respondent State.
Judgment (16th October, 2014) Hon.[ENTITY],J.-
This Criminal Appeal has been filed by the appellant challenging the impugned judgment of conviction and sentence dated 30th April, 2002 delivered in Sessions Trial No.82/1998 by the Additional Sessions Judge, Sironj, District Vidisha convicting the appellant [ENTITY] for commission of the offence under [SECTION] [ACT] and sentencing her to undergo imprisonment for life and to pay fine of Rs.5,000/-, in default, to further undergo one year's rigorous imprisonment.
(2) Case of the prosecution, briefly stated, is that one [ENTITY], Police Personnel posted at Police Station Pathariya Tahsil Sironj, District Vidisha received information from informant [ENTITY], Ward boy of District Hospital, Vidisha informed that deceased [ENTITY] died at 4.40 pm on 16/2/1998 at Hospital. On the basis of the information, [SECTION] was registered. Thereafter a case was registered at [CASE NUMBER] for commission of the offence under [SECTION] [ACT] against the accused and investigation was triggered . The police investigated the matter and after investigation, challan was filed before committal court, which in its turn, committed the case to the Court of Session for trial.
(3) In the trial, a charge was framed against the appellant for commission of the offence to the effect that on 14/2/1998 at 6.30 in the morning at village Bhaukheda, the appellant has committed the murder of [ENTITY] wife of [ENTITY]. The appellant abjured her guilt and pleaded complete innocence. She also prayed for trial.
(4) Prosecution in support of her case has examined as many as 17 witnesses while the defence chose not to examine any witness.
(5) Trial Court after appreciating the evidence on record and relying on the dying declaration of the deceased (Ex.P/5) recorded by the Executive Magistrate has found commission of the offence proved against the appellant beyond reasonable doubt and held that the appellant had committed the murder of the deceased by pouring kerosene oil on her and setting her on fire. Consequently, the Trial Court convicted and sentenced the appellant as indicated above. Hence, this appeal.
(6) Having heard learned counsel for the parties and perusing the evidence on record, we are of the considered opinion, that this appeal deserves to be allowed for the reasons stated herein under (7) [ENTITY] (PW 1) in his deposition has deposed that he knows the appellant. At the relevant time, husband of the deceased was crying that the deceased had set herself on fire. When this witness enquired from the deceased, she told him that she had set herself on fire. Thereafter, he alongwith other persons brought the deceased to district hospital, Vidisha, where she was died.
(8) [ENTITY] (PW 2) who is neighbour of the deceased had deposed in her evidence that deceased [ENTITY] was crying to save her. Hearing the cries, she came out of her house. At that time, husband of the deceased also came there and he doused the fire by pouring water on her. When she enquired as to how she caught fire, the deceased told her that she set herself on fire.
(9) [ENTITY] (PW 3) is the sister of deceased [ENTITY]. She has deposed in her evidence that the deceased was of unsound mind. She set herself on fire. When she enquired from the deceased about the incident, the deceased told her that she set herself on fire.
(10) [ENTITY] (PW 4) is the daughter of the deceased. She is a child witness. In her evidence, she has deposed that she was present at the time of incident. At that time, she was sweeping the courtyard. Her father was inside the house. Her mother ( the deceased) came back after answering call of nature. She had poured kerosene over her body and set herself on fire. She told her father about the incident whereupon he poured water on the body of the deceased to douse the fire.
(11) [ENTITY] (PW 5) has deposed in her evidence that when he enquired from the deceased as to how she caught fire, the deceased did not tell anything to him. Thereafter, he and other persons took the deceased to hospital in a bullock cart.
(12) Dr.[ENTITY] (PW 6) had conducted postmortem examination of the body of the deceased and found 97% burns over the body of the deceased. He opined that the deceased died due to cardio respiratory failure due to shock as a result of extensive superficial to deep burns.
(13) [ENTITY] (PW 7) who is village chowkidar also deposed that he alongwith other persons brought the deceased when she was alive to hospital.
(14) [ENTITY] (PW 8) has deposed that when he asked the deceased as to who had burnt her, she told him that she set herself to fire. Same facts have been deposed by [ENTITY] (PW 9).
(15) [ENTITY] (PW 13) is the [ENTITY] and Executive Magistrate. In his deposition he has stated that on 13/2/1998 he was posted at Sironj. He had recorded the dying declaration of the deceased [ENTITY] wife of [ENTITY]. Before recording the dying declaration, he had enquired from the doctor whether the deceased was in a position to give dying declaration and the doctor told him that the deceased was in a position to give dying declaration. Deceased [ENTITY] told him that a day before the date of incident, there was a quarrel between her and the accused and on the date of incident as well, there was a quarrel between them. When she was sitting outside her house, accused [ENTITY] came there from the back side of her house and poured kerosene on her and thereafter set her on fire by igniting a match stick. Thereafter, her brother tried to douse the fire and also poured water on her. The witness has deposed that he had taken the thumb impression of the deceased on the dying declaration (Ex.P/5). He admitted in his cross examination that he had not recorded the dying declaration in question and answer form. He further deposed that on the dying declaration (Ex.P/5), the date has not been mentioned.
(16) From the evidence produced by the prosecution on record, as discussed above, it is clear that the witnesses including the husband and sister of the deceased and neighbours did not support the case of prosecution. All the witnesses have stated that the deceased set herself on fire by pouring kerosene on her body and thereafter setting herself on fire. [ENTITY] (PW 4) a child witness is the daughter of the deceased who has witnessed the incident. She too did not support the case of prosecution.
(17) The conviction of the appellant is solely based on the dying declaration (Ex.P/5) of the deceased recorded by PW 13 [ENTITY] and Executive Magistrate. This dying declaration is not in question and answer form. In the dying declaration, the deceased had stated that she had a quarrel a day before the date of incident, i.e. 13/2/1998 with the appellant and on the date of incident as well. The deceased had stated in the dying declaration that on the date of incident in the morning when she was sitting outside her house, the appellant came from the back side of her house, poured kerosene on her and set her on fire. However, this statement does not find corroboration from the statements of the other prosecution witnesses including the child witness.
(18) Hon'ble the Supreme Court in the case of [PRECEDENT], has held as under in regard to evidentiary value of a dying declaration after considering its earlier judgments.
20. There is a historical and a literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearian origin. In The Life ad Death of King [ENTITY], [ENTITY] had made Lord [ENTITY] utter "Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, lose the use of all deceit"
and asked, "Why should I then be false, since it is true that I must died here and live hence by truth ?" [ENTITY], The Life and Death of Kind [ENTITY], Act 5, Scene 4, lines 22-29.
21. In passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including the weapon which injured the victim, nature and extent of injuries, victim's physical condition his conduct, and what was said to and by him. This Court has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, hearsay exception is a mixed question of fact and law.
22. It s equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is though to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator.
24. There is a legal maxim "nemo moriturus praesumitur mentire" meaning, that a man will not meet his Maker with a lie in his mouth. [ENTITY] and [ENTITY], in their Treatise on [ACT] state:
"when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross-examination are dispensed with".
25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to Court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.
26. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the makes was in a fit condition- mentally and physically-to make such statement.
27. In [PRECEDENT] this Court while stating that a dying declaration is entitled to great weight however cautioned to note that the accused has not power to cross-
examination: (SCC pp.480-81, para 18) "18. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists 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 the deceased was not as a result of either tutoring, prompting or a product 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule or law nor of prudence that dying declaration cannot be acted upon without corroboration. ([PRECEDENT])
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. ([PRECEDENT]; [PRECEDENT]).
(iii) This 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 opportunity to observe and identify the assailants and was in a fit state to make the declaration. ([ENTITY] V. Public Prosecutor)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. ([PRECEDENT])
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected ([PRECEDENT])
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath V. State of U.P)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. ([PRECEDENT])
(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. ([PRECEDENT])
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. ([PRECEDENT])
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. ([PRECEDENT])."
Hon'ble the Supreme Court has further held in regard to conviction that may be based solely on the basis of the dying declaration :
"52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration-be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration."
(19) The principle of law that emerges from the above refereed judgment of Hon'ble the Supreme Court is that the dying declaration must inspire confidence so as to make it safe to act upon. Apart from this, the evidence and material available on record must be properly weighed in each case to arrive at a proper conclusion.
(20) In the case in hand, near relatives of the deceased including husband and sister as also neighbours have all deposed that the deceased set herself on fire. It cannot be said that these witnesses are saving the accused. The dying declaration is not in question and answer form. The doctor in his deposition although stated that the deceased was conscious to give dying declaration, however, the doctor had also deposed that the deceased sustained 97% burn injuries and she died on 16/2/1998 at 4.40 p.m. due to burn injuries. The deceased herself was crying that she was in acute pain and requested to be taken to hospital at the earliest opportunity.
(21) Looking to the mitigating circumstances as discussed herein above, in our opinion, it would not be safe to hold the impugned conviction inflicted against the appellant solely on the basis of the dying declaration (Ex.P/5) in the absence of other corroborative evidence. Hence, we hold that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt.
(22) Consequently, this appeal succeeds and is hereby allowed. Impugned judgment of conviction and sentence awarded against the appellant is hereby set aside and she is acquitted of the charge.
(23) Appellant [ENTITY] is on bail. She need not surrender. Her bail bond and surety bond stand discharged. Fine amount, if deposited, shall be refunded to the appellant after due verification.
([ENTITY]) ([ENTITY]) Judge Judge ppg