* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A.10/2000 Reserved on: 12.02.2015 Date of decision: 17.03.2015 LATOOR SINGH Appellant Through: Mr.[ENTITY], Advocate. Versus STATE OF NCT OF DELHI Respondent Through: Mr.[ENTITY], Advocate. Insp.[ENTITY], P.S.Seelam Pur. CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J.
1. [ENTITY] has been convicted by judgment dated 21.12.1999 passed by the Learned Additional Sessions Judge, Shahdara, New Delhi, in [CASE NUMBER] (refer FIR No.216/1999 PS, Seelampur) for murdering his wife [ENTITY] by burning her. By the order dated 22.12.1999, the appellant has been sentenced to undergo imprisonment for life, pay fine of Rs.10,000/- and in default of payment of fine to suffer Rigorous Imprisonment for two years for the offence under [SECTION] [ACT] ([ACT] for short).
2. On 23.03.1999, [ENTITY], (deceased) was admitted in Guru Teg Bahadur Hospital, Shahdara, with burn injuries. She was brought to the hospital by [ENTITY] (husband), the appellant. [ENTITY], the Duty Head Constable, (PW.14) who was posted in the hospital, communicated this information to the concerned police station, whereupon DD No.37 (Ex.PW16/B) was recorded by Inspector [ENTITY], PW.22.
3. Sub-Inspector [ENTITY], PW.19 was sent to the hospital, who after obtaining the MLC (Ex.PW2/A), recorded the statement of [ENTITY] in the hospital. Aforesaid [ENTITY] stated that the appellant, after a fight with her, had burnt her. The aforesaid statement given by [ENTITY] has been brought on record as Ex.PW19/A. On the basis of the aforementioned statement of [ENTITY], a regular FIR was initially registered under [SECTION] of the [ACT].
4. The deceased succumbed to the injuries on 28.03.1999 i.e. after about 5 days, whereafter [SECTION] of the [ACT] was added.
5. Dr. [ENTITY], PW.20 examined [ENTITY] at 11:00 p.m. and prepared the MLC Ex.PW2/A. He has deposed before the Trial Court that [ENTITY] was brought to the hospital at 11 pm with 100 per cent burn injuries, the same having been caused by her husband [ENTITY] (appellant). On examination of the injuries, PW.20 found the patient to be conscious and oriented but her general condition was poor. Smell of kerosene was manifest and noticeable.
6. SI [ENTITY], PW.19, after obtaining the MLC, recorded the statement of [ENTITY] which was marked Ex.PW19/A. The aforesaid witness has stated that [ENTITY] stated before him, that she lived in the family and there were unvarying fights with her husband. On the day of the occurrence, they had fought and her husband, the appellant, had burnt her.
7. The aforesaid PW.19, who recorded the said statement, had testified before the Trial Court that on 23.03.1999, while he was posted at Usmanpur outpost, under the territorial jurisdiction of Seelampur Police Station, DD No.37 (Ex.PW16/B) was assigned to him for further action. On receiving the said information, he proceeded for Guru Teg Bahadur Hospital along with Ct. [ENTITY], PW.17. After obtaining the statement of [ENTITY] (deceased), Ex.PW19/A, he recorded his endorsement (Ex.PW19/B) and had sent the same for registration of a regular case. He testified that [ENTITY] expired in the hospital on 28.03.1999. The post mortem examination was done thereafter and the dead body was released to the heirs of the deceased.
8. Dr. [ENTITY], PW.1, who performed the autopsy on the person of the deceased opined that on examination of the body of the deceased, she found blackening and black soot present over the entire body. The wounds, which covered the entire surface area, were infected and foul smell and puss was emanating. The death, in her opinion, was as a result of shock because of septicaemia, which in turn was the result of ante mortem infected extensive burn wounds. She has further opined that the burning was by flame.
9. From the perusal of the aforementioned testimonies of the witnesses, there does not remain any doubt that the deceased, who is the wife of the appellant, died a homicidal death by burning due to kerosene. The dying declarations mentioned above, are being dealt with separately in subsequent paragraphs.
10. In order to prove the charges against the appellant, the prosecution has examined 23 witnesses. Some of them, namely [ENTITY], PW.3; Dr. [ENTITY], PW.4; [ENTITY], PW.5 and [ENTITY], PW.10; were not fully/ completely examined in chief by the prosecution and were given up. [ENTITY], PW.11; [ENTITY], PW.12 and [ENTITY], PW.13, who are the neighbours of the appellant have not supported the prosecution version and have been declared hostile.
11. The sons of the appellant namely [ENTITY], PW.6; [ENTITY], PW.7; [ENTITY], PW.8 and [ENTITY], PW.9; have also not supported the prosecution case.
12. The appellants conviction is thus premised on the dying declarations, Ex.PW19/A which was recorded by Sub-Inspector [ENTITY], PW.19 and the noting on the MLC Ex.PW2/A prepared by Dr. [ENTITY] (PW.20). The deposition by Dr. [ENTITY] (PW.20) affirms that he had examined [ENTITY] and while recording the history of the injury, he has stated that as per the statement of the injured, she was burnt by the appellant.
13. The issue, therefore, before this Court is to determine whether the aforesaid dying declarations are credible and worth acceptance and whether it could be treated as a reliable evidence.
14. [SECTION] of the [ACT] reads as here under:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- 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 person's 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."
15. From a bare reading of the [SECTION] of the [ACT], it will become very clear that it is in the nature of an exception to the rule that hearsay evidences are not admissible. It is based on the maxim "Nemo moriturus praesumitur mentire" i.e. a man will not meet his maker with a lie in his mouth. By virtue of this Section, any statement made by a person as to the cause of his death or any of the circumstances of the transaction which resulted in his death in cases in which the cause of death of that person comes into question, would be relevant.
16. A dying declaration can be the sole basis for convicting the accused, but it ought to pass the test of reliability, before being accepted. A dying declaration has to be subjected to very close scrutiny, as the person implicating does not have any opportunity of cross examination and to this extent statement cannot be tested. Thus the courts insist that the dying declaration should be of such a nature as to inspire full confidence with regard to its correctness. This requires satisfaction of the following conditions:
i. That it was actually made;
ii. The person deposing had reproduced the exact and the precise statement made by the deceased prior to his death; the dying declaration was not tutored or under threat, force or coercion and represents what had truly and actually happened.
17. However, once the court is satisfied that such a dying declaration is credible and voluntary and not having been tutored or prompted, the same could be used for convicting the accused without any further corroboration. There is no absolute rule of law that uncorroborated dying declaration cannot be used for conviction. The attempt at seeking corroboration is merely by way of caution and prudence, lest the courts not traverse into any unchartered territory, i.e. in the realm of suspicion, for convicting the accused.
18. In, [PRECEDENT], the Supreme Court has summarised the principles governing the dying declaration.
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See [PRECEDENT])]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See [PRECEDENT] and [PRECEDENT])]
(iii) The Court has to scrutinize 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 [PRECEDENT])]
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See [PRECEDENT])]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See [PRECEDENT])]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See [PRECEDENT])
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See [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. [See [PRECEDENT])
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration can look 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 [PRECEDENT])]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See [PRECEDENT])]
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See [PRECEDENT])]
19. Thus, the most important consideration for a court is to find out whether the victim was in a fit mental condition to give such a statement. The second important consideration for any court is to ascertain whether any declaration was made; test the correctness of such dying declaration; to find out whether or not it was under the influence of another person by prompting/ tutoring or whether such a statement is the product of an imagination of the maker.
20. In burn cases, usually it is argued that the victim was possibly not capable of making the dying declaration because of burns or due to sedation given by the doctors, which is, in a way, the preliminary or first treatment to relieve and soothe the pain and anxiety. However, expert medical opinion does allay such suggestions, for they reject that the impact of burn wounds or drugs used to treat burns, affect the higher functions of brain. They accept the proposition that compos mentis is neither affected by burns nor by treatment (refer [ENTITY] BD, Jani CB. Status of compos mentis in relation to dying declaration in burn patients. [PRECEDENT]. Thus such arguments should not be accepted, without reference to the factual matrix and the deposition of the witness recalling and asserting that he had recorded the dying declaration.
21. In cases of 100 per cent burn injuries, a person can make a dying declaration or put a thumb impression. There are several decisions where the Supreme Court has relied on such dying declarations (See [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and The [PRECEDENT]).
22. Now, after having stated the position of law over the issue, we proceed to test whether the dying declaration given by the deceased is worthy of acceptance.
23. It has been urged before us by the learned counsel for the appellant that the declaration of the deceased (Ex.PW19/A) is unbelievable for the reason that despite the deceased remaining in the hospital for about 5 days i.e. from 23.03.1999 to 28.03.1999, no effort was made to have her statement recorded by any Magistrate. The genuineness of the statement has further been questioned on the ground that the MLC (Ex.PW2/A) of the deceased disclosed her to be in a fit condition to make the statement; but such a report was prepared at 11:00 p.m. The statement was recorded sometimes later in the night. Whether the deceased was in a fit condition to make any statement, at a later time, therefore, becomes debatable. It has also been submitted on behalf of the appellant that the doctor, PW.20 had no occasion to state in the MLC about the appellant having burnt the deceased and that such an entry in the MLC was incorporated at the instance of Sub-Inspector [ENTITY] PW.19, with whom one of the sons of the appellant had some dispute.
24. In order to find an answer to the aforesaid objections to the admissibility of the dying declaration, it is necessary to note the sequence of events:
i. The deceased was brought and admitted in hospital at 11:00 p.m., as per MLC Ex.PW2/A, which fact stands admitted by the appellant in his statement under [SECTION] [ACT];
ii. The patient was attended by PW.20, who on examination of the patient, prepared the MLC (Ex.PW2/A). As noticed, the MLC Ex.PW.2/A, names and blames the appellant, as stated by the patient.
iii. The statement of the deceased is recorded by PW.19 wherein she spoke about her husband having burnt her.
iv. The deceased succumbed to the injuries after 5 days i.e. on 28.03.1999.
v. The petitioner was arrested on 06.07.1999.
25. From such sequence of events, it is apparent that immediately after the occurrence and in presence of the appellant, the deceased told the doctor about the appellant having burnt her. Nothing could have been more contemporaneous than this averment of the deceased, prior to her death. Immediately thereafter, on being satisfied about the compos mentis of [ENTITY], the police officer, PW.19 recorded her statement in which she indicted the appellant. If any consultation or confabulation was resorted to and pursuant to such deliberation if any wrong recording was made in the MLC, it would have raised immediate consternation at the instance of the family members of the appellant. No such condemnation was made either by the appellant or anybody on his behalf during the entire course of investigation. No one from the maternal family of the deceased is stated to have been present in the hospital so as to falsely insinuate the appellant. The appellant himself was in police service. The appellant, as is noticeable, was not even arrested after the death of the deceased. He was arrested only on 06.07.1999. This fact alone falsifies the theory of false implications at the hands of PW.19. If at all, PW.19 was rather forbearing and indulgent.
26. Similarly, we do not find any anomaly in PW.20 recording in the MLC, that how the burns were caused. If a patient discloses the cause of the injury/wounds, it can be entered in the MLC, as such fact forms part of the history of the injury. There is nothing on record for us to hold that the doctor PW.20 had acted maliciously, and together with police framed the appellant.
27. The Trial Court has rightly observed while dealing with the deposition of PW.20 that he withstood the test of cross-examination and nothing could be elicited so as to discredit him and the noting in the MLC Ex.PW.2/A.
28. The Supreme Court has examined the argument, that the dying declaration must be recorded by a Magistrate and whether the certificate of fitness is an essential feature, and has made the following observations in [PRECEDENT].
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."(emphasis supplied)
29. Similarly in [PRECEDENT], the Supreme Court at para 14 has held:
"The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case.
Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity."
30. In the case in hand, we find no fault with non recording of the dying declaration of the deceased by the Magistrate. The fact that the deceased survived in the hospital for about 5 days, could not be read as a ground to disbelieve PW.19 and PW.20.
31. Once we come to the conclusion that the deceased voluntarily made the statement, attributing the act of putting her to fire to the appellant on two occasions namely (i) while getting herself treated, in the first instance by PW.20 (ii) by giving her statement before PW.19, then we cannot harbour any opinion except that the appellant was the culprit and the perpetrator who caused the burn injuries on the person of the deceased leading to her death.
32. When occurrence of such nature takes place in the confines of the residence, and the presence at the appellant at the time of such occurrence is established and proved, the appellant should explain as to how the deceased got burnt. There has not been any attempt, even a feeble one, to explain the reason and cause of the burns.
33. [SECTION] of the [ACT], reads as under:
"106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
34. In this context, it would be relevant to examine the testimony of PW.6, PW.7, PW.8 and PW.9, the four sons of the appellant. After absolving the appellant, PWs. 7 and 8 have testified that the deceased was suffering from fits, though curable, and that in the night of the occurrence, the deceased had walked upstairs to use the toilet and when she came down, she was in flames. The said version belies common sense and should be rejected. There is no evidence to indicate and support the said questionable, if not implausible, and abominable justification. Tell tale marks would have been left in the toilet. The theory of suicide which has been attempted to be put up, is not trust worthy at all. There is no version with respect to the source of fire, or, as to when and at what point of time and for what reason, the deceased tried to immolate herself and more importantly, why the said witnesses remained quiet.
35. If we carefully analysis the deposition of PWs 6, 7, 8 and 9, two facts come to fore:
i. That they being the sons of the appellant have reconciled to the fact that now the mother is dead, they wanted to protect their father (appellant) from being punished for the offence.
ii. Complete absence of any explanation whatsoever at their end with respect to the impelling motive, their reticence and lack of evidence that the deceased immolated herself. None of the sons lodged any report or protest with the police, inspite of their father being prosecuted.
36. When Insp. [ENTITY], the IO (PW.22) visited the house of the appellant on 24.03.1999, no trace of kerosene oil was found. The absence of any trace of combustible material, also makes the theory of suicide improbable.
37. Thus, from the foregoing discussion, it is apparent that the dying declarations of the deceased are credible and trust worthy. They were recorded in the hospital shortly after the incidence. The appellant is stated to have brought the injured to the hospital. The statement is voluntary, truthful and is not vindictive. There were no objections to the noting in the MLC at any stage prior to the trial.
38. Having said so, we find no reason to differ with the Trial Court which has appreciated the evidence in the case, in accordance with law and logic. The verdict of guilt returned by the Trial Court is justified.
39. The appeal, being devoid of merits, is dismissed.
40. During the pendency of the appeal, sentence of the appellant was suspended. The appellant will surrender within 3 weeks, to undergo the remaining sentence. The Trial Court will take steps to take the appellant in custody, in case he does not surrender.
41. The Trial Court Record be sent back forthwith.
42. Copy of the judgment be transmitted to the Trial Court for compliance as also for the record.
([ENTITY]) Judge ([ENTITY]) Judge MARCH 17th , 2015 ab