IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 76 of 2000 Reserved on : 5th August, 2010 Date of Decision: 3rd November, 2010 State of Himachal Pradesh Appellant Versus Kartar Singh Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Vivek Thakur, Addl. Advocate General with Mr.Rajesh Mandhotra, Dy. A.G. For the respondent: Mr. Virender Rathore, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 11.9.1996, accused were put to trial. In terms of judgment dated 29.12.1997 passed by learned Additional Sessions Judge (I), Kangra at Dharmsala, H.P., in Criminal Case No.4-D/97, titled as State of H.P. vs. Kartar Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Sharmila Devi (deceased) and Shri Kartar Singh (accused) Whether the reporters of Local Papers are allowed to see the Judgment? 2 were married for more than 9-10 years. From the wedlock three children were born. Accused was working in the army and the deceased who was working as a warden at the Anganwari Centre, Dhugyari was forced to leave her job and reside at the newly constructed house of the accused at Village Sakoh. Accused also used to treat Smt. Sharmila Devi with cruelty. He used to harass and forcibly beat her. About 1 ½ - 2 months prior to the incident in question, Smt. Sharmila Devi telephonically informed her parents about the same. Consequently, her brother, Shri Ajay Kumar (PW-1) took her back to the parental house with her children. Accused visited his in-laws and insisted upon sending her wife back. Under threats that he would sell off his entire property, deceased was sent back by her father Shri Roshan Lal (PW-14). However this was done with the intervention of the Pradhan Rajinder Kumar (PW- 4) and Punch Jagan Nath (PW-5). PW-1 moved an application (Ext.PW-1/A) before the Panchayat and compromise deed (Ext.PW-1/B) executed between the accused and the deceased. 3. On 11.9.1996 at about 6 p.m., Smt. Sharmila Devi poured Kerosene oil on her body and then set herself on fire. She was immediately taken to the Zonal Hospital, Dharamsala for treatment. Doctor on duty Dr. R.K.Mahajan (PW-15) sent intimation (Ext.PW-7/A) to the concerned SHO. HC Girdhari Lal (PW-13) was deputed to 3 investigate the matter. He moved an application (Ext.PW- 13/A) for recording the statement of Sharmila Devi. Dr. R.K.Mahajan after examination certified that she was fit and her statement could be recorded. HC Girdhari Lal (PW-13) telephonically requested Sub Divisional Magistrate Shri Kamlesh Panth (PW-12) to record her statement. Accordingly PW-12 recorded statement (Ext.PW-12/A) on itself. However, on 12.9.1996 another statement (Ext.PW- 12/B) of the deceased was recorded. Statements were sent to Police Station, Dharamshala, on the basis of which FIR No. 282 (Ext.PW-16/A) dated 12.9.1996 under Section 498-A, I.P.C. was registered by ASI Avtar Singh (PW16). Thereafter ASI Avtar Singh (PW-16) moved another application (Ext.PW-11/A) before the learned Chief Judicial Magistrate, Dharamsala for recording the statement of Smt. Sharmila Devi under Section 154, Cr.P.C. Application was marked to JMIC Shri Bhuvnesh Sharma (PW-11), who after visiting the hospital recorded the third statement (Ext.PW-11/B) of Smt. Sharmila Devi on 12.9.1996. PW- 16 also visited the spot and prepared sketch map (Ext.PW- 16/B) and took into possession a Can of kerosene oil vide memo (Ext.PW-5/A) dated 12.9.1996. Other incriminating articles found at the spot were also taken into possession. During search compromise deed (Ext.PW-1/B) was recovered near the pillow of the deceased. On 13.9.1996 at about 8.30 p.m., Smt. Sharmila Devi succumbed to his 4 injuries. On 14.9.1996 inquest report (Ext.PW-6/C) was prepared and post-mortem conducted. Post mortem report (Ext.PW-6/B) issued by Dr. Aggarwal was taken by the police. Smt. Sharmila Devi died of 98% burn injuries. Part of investigation was carried out by H.C. Shri Onkar Singh (PW-7). SI Kishan Singh (PW-8) presented the challan in the Court. 4. Accused was charged for having committed offences punishable under Sections 498-A and 306, IPC, to which he did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 16 witnesses. Statement of the accused under Section 313, Cr.P.C. was recorded in which he took the following defence:- “I am innocent. In the last leg of my service I constructed a new house at village Sakoh. After my retirement I asked my wife to give up the job as I want to settle down at village Sakoh in the newly constructed house. My wife was drawing Rs.300/- P.M. from her service. I have three issues. My wife give up the job, but she was not fully happy with the leaving of her job from Anganwari Dhugiari. I have no alternative then to settle at Village Sakoh for the protection of property and studies of children. On 11.9.1996 in the morning hours when I was working in my fields my daughter raised alarm that her mother caught fire accidentally. On this I ran towards 5 my house and on reaching there, I tried my best to extinguish the fire during this process I also sustained burn injuries on both of my hands to the extent of 9%. Immediately thereafter I hired a taxi and brought my wife to Z.H. Dharmshala. After extinguishing the fire I immediately informed my inlaws about the accidental fire. They also reached in Z.H. Dharmshala. On 12.9.1996, the members of my inlaws house never allowed me to meet with my wife till her death. When I admitted my wife in the hospital, she told to the doctor that while she was trying to burn the hearth and the keroscene cain (sic) which was in her hand fell down and consequently keroscene (sic) oil spread nearby the hearth, inside the hearth and also upon her clothes and resultantly she caught fire. My inlaws on the instigation of their co-villagers got registered the false present case against me just to harass me. The alleged compromise is a manipulated one and just to creat (sic) a evidence against me.” 6. The Court below acquitted the accused, hence the present appeal. 7. At the threshold we may mention that while acquitting the accused, trial Court considered only two dying declarations i.e. Ext.PW-12/A and Ext.PW-12/B. There is no discussion with regard to the third dying declaration Ext.PW-11/B. 6 8. From the statement of Dr. Neeti Agarwal (PW- 6) and post-mortem report (Ext.PW-6/B), it cannot be disputed that deceased died due to 98% burn injuries. It is also the prosecution case that deceased had set herself on fire. 9. It is a settled position of law that if there are more then one dying declarations then the Court has to scrutinize all of them to find out if each one of them pass the test of trustworthiness. The Court must further find whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. 10. There can be more than one dying declarations and if there is no inconsistency between them, all can be used against the accused for proving the guilt. [State of Karnataka vs. Shariff, (2003) 2 SCC 473 and (1982) 1 SCC 700, Mohanlal Gangaram Gehani vs. State of Maharashtra, (1982) 1 SCC 700. 11. This view further stands reiterated in Jaishree Anant Khandekar vs. State of Maharashtra, (2009) 11 SCC 647, where the Apex Court was dealing with five dying declarations, which were found not to be in variation with each other. 12. But however, where there is variation in the dying declaration (two in question), the Apex Court has held that there cannot be conviction based on them 7 [Dandu Lakshmi Reddy vs. State of A.P. (1999) 7 SCC 69 and Sanjay vs. State of Maharashtra, (2007) 9 SCC 148]. 13. Further in (2010) 6 SCC 516, Apex Court has again summarized its view in the following terms:- “The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in replying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. The courts must bear in mind that each criminal trial is an individual aspect. 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 8 impediment to make it a basis of conviction, even if there is no corroboration. (Emphasis supplied)” 14. In Jaishree Anant Khandekar vs. State of Maharashtra, (2009) 11 SCC 647, a comparative study of laws of various countries on the point of dying declaration was done by the Apex Court. It was held that: “17. The law relating to dying declaration is an exception to the hearsay rule. The rationale behind admissibility of a dying declaration was best expressed, not in any judgment, but in one of the soliloquies in Shakespeare's King John, when fatally wounded Melun wails: `Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?' (See King John, Act V, Scene IV.) 18. Both Taylor and Wigmore in their treatise on Evidence took refuge to the magic of Shakespeare to illustrate the principles behind admissibility of dying declaration by quoting the above passage. 19. Among the judicial fraternity this has been best expressed, possibly by Lord Chief Justice Baron Eyre (See. R. Vs. Woodcock, (1789) 1 Lea.502, and which I quote (ER p.353): - "...That such declarations are made in extremity, when the party is at the point 9 of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court of justice." 20. The test of admissibility of dying declaration is stricter in English Law than in Indian Law. Sir James Fitzjames Stephen in 1876 brought out a `Digest of the Law of Evidence' and its introduction is of considerable interest even today. The author wrote that English Code of Evidence is modelled on the Indian Evidence Act of 1872. In the words of the author: "In the autumn of 1872 Lord Coleridge (then Attorney General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed. It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence." 10 21. In that book, Article 26 sums up the English law relating to dying declaration as under:- "Article 26. Dying Declaration as to Cause of Death . - A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular." (emphasis supplied) 22. In Section 32(1) of the Indian Evidence Act the underlined portion is not there. Instead Section 32 (1) is worded differently and which is set out: "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 to any of the circumstances of the transaction which resulted in his death, 11 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 he nature of the proceeding in which the cause of his death comes into question." (emphasis supplied) 23. The Privy Council in the case of Nembhard Vs. The Queen, 1982 (1) The All England Law Reports 183 (Privy Council), while hearing an appeal from the Court of Appeal of Jamaica, made a comparison of the English Law and Indian Law by referring to the underlined portions of Section 32(1) of the Indian Evidence Act at page 187 of the report. Sir Owen Woodhouse, speaking for the Privy Council, pointed out the different statutory dispensation in Indian Law prescribing a test of admissibility of dying declaration which is distinct from a common law test in English Law. 24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. American Law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle. 25. On certainty of death, the same strict test of English Law has been applied in American Jurisprudence. The test has been variously expressed as `no hope of recovery', `a settled expectation of death'. The core concept is that the expectation of death must be absolute and not susceptible to doubts and there should be no chance of operation of worldly motives. (See Wigmore on Evidence page 233-234). 12 26. This Court in Kishan Lal Vs. State of Rajasthan, AIR 1999 SC 3062, held that under English Law the credence and the relevance of the dying declaration is admissible only when the person making such statement is in hopeless condition and expecting imminent death. Justice Willes coined it as a "settled hopeless expectation of death" (R Vs. Peel, (1860) 2 F. & F. 21, which was approved by the Court of Criminal Appeal in R Vs. Perry, (1909) 2 KB 697). Under our Law, the declaration is relevant even if it is made by a person, who may or may not be under expectation of death, at the time of declaration. (See para 18,page 3066). However, the declaration must relate to any of the circumstances of the transaction which resulted in his death.” 15. In Khushal Rao vs. State of Bombay, AIR 1958 SC 22, the Apex Court has further held that:- “Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But in our opinion, it is not right in principle to do so.Though under S. 133 of the Evidence Act, it is not illegal to convict a person on the uncorro borated testimony of an accomplice, illustration (b) to S. 114 of the Act, lays down as a rule of produce based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.” “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole 13 basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” “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 14 the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities.” (Emphasis supplied) 16. The aforesaid decision came up for consideration before the Constitution Bench of the Apex Court in Harbans Singh and another vs. The State of Punjab, AIR 1962 SC 439 and after taking into account its earlier decision in Ram Nath vs. State of Madhya Pradesh, AIR 1953 SC 420, affirmed the aforesaid view. 17. In Paniben (Smt.) vs. State of Gujarat, (1992) 2 SCC 474, the Court has further reiterated and laid down the following principles:- “A dying declaration is entitled to great weight. 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.” “However, since the accused has no power of cross-examination, which is essential for eliciting the truth, 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 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. 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 eye witness has said that the deceased was in a fit 15 and conscious state to make this dying declaration, the medical opinion cannot prevail”. “Merely because a dying declaration does not contain the details as to occurrence, it is not to be rejected. Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. But a dying declaration which suffers from infirmity cannot form the basis of conviction. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.” “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164). (iii) This Court has to scrutinise the dying declaration carefully and must ensure