IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.240 of 1996. Judgment reserved on: 24.2.2010 Date of decision: 23.4.2010 State of H.P ..Appellant Versus Smt.Lajjya Devi ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sajnay Karol, J. Whether approved for reporting ? Yes For the appellant: Shri Ram Murti Bisht, Deputy Advocate General. For the respondent: Mr.Virender Singh Rathore, Advocate. _____________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 3.5.1995 passed by the learned Sessions Judge, Kangra at Dharamshala in Sessions Trial No.4 of 1995 whereby he acquitted the accused of having 2 committed offences punishable under Sections 302 and 498-A of the Indian Penal Code. The undisputed facts of the case are that the deceased Smt.Sushma Devi was married to Vinod Kumar, son of accused Lajjya Devi. The marriage took place in the year 1993. It is also not disputed that on 31.3.1994 sometime in the morning, Smt.Sushma Devi caught fire and received serious burn injuries. She was taken to the Civil Hospital, Palampur at about 11.00 a.m. where she died at about 12.30 a.m (mid night) on the night intervening 1st and 2nd April, 1994. According to the post mortem report, the deceased died due to shock which was the result of extensive burns. According to the prosecution, the deceased was being ill-treated by the accused and being subjected to cruelty within the meaning of Section 498-A of the Indian Penal Code. The case of the prosecution is that on 31.3.1994 the deceased had gone to the cattle shed for cleaning the same at about 6.30 a.m. She returned from the cattle shed and was washing her hands and face on the first floor of the house. Her mother-in-law, i.e., the 3 accused came there. She was carrying a container full of kerosene. The accused then poured the kerosene on the deceased Sushma and lit the same with a match stick. Thereafter, the accused went down and came up with a pitcher of water and poured water on her. A number of persons gathered at the spot. The entire case of the prosecution is based on the alleged dying declaration made by the deceased in the hospital to the Investigating Officer on 1.4.1994 at about 4.15 p.m. This dying declaration was attested by PW/2 Dr.S.K.Bhatia and PW/3 Swaran Singh, an uncle of the deceased (mother’ sister’s husband). An FIR was registered and the investigation was carried out on the basis of the dying declaration Ext.PB and the other material collected during investigation. The accused was charged with having committed the offences detailed here-in-above. She pleaded not guilty and claimed trial. After trial, the accused has been acquitted by the learned Trial Court mainly on the ground that the dying declaration cannot be relied upon. Hence the present appeal. 4 Before considering the dying declaration, it would be pertinent to cull out the law relating to dying declarations and how such dying declarations are to be appreciated. In Varikuppal Srinivas Vs. State of Andhra Pradesh 2009(3), SCC 415, the Apex Court held as follows:- “11. This is a case where the basis of conviction of the accused by the trial Court was the dying declarations. “9……The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. 10. 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 Court also insists that the dying declaration should be of such 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 or 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 assailant. 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 5 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 as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817): (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)] (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)] (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 K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)] (iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)] (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654) (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra 6 v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)] (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 Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505). (ix) Normally 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 eye- witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)]. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)]. (xi) Where there is 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 declarations could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors. v. State of Haryana (2007 (9) SCC 151).” To the similar effect is the judgment of the Apex Court in Kalawati w/o Devaji Dhote Vs. State of Maharashtra, 2009 (4) SCC 37. In Sharda Vs. State of Rajasthan, 2010 (2) SCC 85, the Apex Court while dealing with law relating to dying declaration held as follows:- 7 “24. In the case in hand, the conviction of the appellant is based on the last dying declaration Exh.P-18, said to have been recorded in presence of Executive Magistrate. The principle on which dying declarations are admitted in evidence is indicated in legal maxim: "Nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth." It is indicative of the fact that a man who is on a deathbed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 25. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that 8 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 aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.” It is in the light of the aforesaid law that we have to examine the evidence in the present case. PW/7 Binta Devi is the sister-in-law of the deceased. She stated that at about 6.00 a.m on the date of occurrence, when she alongwith her mother-in-law was sweeping the courtyard, they heard the cries of the deceased. Both of them rushed to the first floor of the house on hearing her cries. They saw the deceased on fire and tried to douse the fire with the water. The deceased was covered with a cloth in order to extinguish the fire. Vinod Kumar, husband of the deceased on seeing his wife burning fainted at the spot. PW/6, Satish Kumar is the husband of the sister of the deceased. According to him, on 31.3.1994 at about 7.15 a.m., he came to know that the deceased had sustained burn injuries in a fire and was being taken 9 to the District Hospital. He came across the taxi in which the deceased was taken to the hospital at Hamirpur. The accused alongwith Bimla Devi and Puran Chand were accompanying the deceased. He advised them to take the deceased to Palampur Hospital instead of Hamirpur Hospital and the accused person and the others accompanying them asked the taxi driver to go to Palampur. It has come in the evidence that the deceased was first taken to the hospital at Thural. But for reasons best known to the prosecution, no effort was made to collect the record from the hospital at Thural. Both PW/6 and PW/7 have stated that Sushma Devi was conscious both in the village as well as in the taxi. At that time, she did not make any complaint that she had been set on fire by the accused. PW/1 Dr.G.C.Sood medically examined the deceased at the time of her admission in the hospital at Palampur. He categorically stated that the police had recorded the statement of the deceased in his presence but he had not signed the same. He further stated that 10 the statement made by the deceased in his presence to the police was tape recorded by an I.P.S officer. The I.P.S. officer is Sh.Rupin Sharma, PW/20. He admitted that he tape recorded whatever the deceased was saying while crying in pain. This officer was officiating as SHO, Police Station, Palamapur. When asked what the deceased had stated and on suggestions being put to him that the deceased had stated that she had caught fire accidentally, he pleaded loss of memory and stated that he did not remember what had been said by the deceased. Even more damaging is the fact that he never handed over the audio cassette containing the tape recording of the statement of the deceased to the Investigating Officer. He stated that he never informed the Investigating Officer regarding the tape recorded version. He admitted that a doctor was present when the tape recording was being done. The manner in which this Police Officer has acted is highly irresponsible and deplorable. Once he had the version of the deceased and having tape regarding the said version, he should have immediately brought it to the notice of the 11 Investigating Officer. He however, slept over the matter and neither handed over the audio cassette nor informed the Investigating Officer about the tape recorded version. Why was this tape recorded version withheld? It may be because the name of the accused was not mentioned in this initial version. Coming to the dying declaration. As per this dying declaration, when the deceased went up to the first floor and was washing her hands and face, the accused came with a container full of kerosene. The accused then poured kerosene on Sushma Devi and set her on fire with a match stick. This statement was recorded by the Investigating Officer, Sh.B.R.Pathania, PW/18. It was attested by PW/2 Sh.S.K.Bhatia, PW/3 Swaran Singh and Sh.Purshotam who were not examined in the Court. The law frowns upon the Investigating Officer recording the dying declaration if there are other independent persons present who can record the same. Reference in this behalf may be made to the judgment of the Apex Court in Dalip Singh Vs. State of Punjab AIR (1979) S.C. 1173 wherein it was held as follows:- 12 “We may also add that although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under Section 32 of the Indian Evidence Act, in view of the exception provided in Sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to have such dying declarations out of consideration until and unless the Prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor.” To the similar effect is the law laid down in Munna Raja Vs. State of M.P AIR (1976) S.C. 2149. In the present case, the doctor was present and could have easily recorded the statement himself. Surprisingly, both the doctor PW/2 and the Investigating Officer, PW/18 gave contradictory versions as to why the statement was recorded by the Investigating Officer. The Investigating Officer, PW/18 stated that he asked Dr.S.K.Bhatia, PW/2 to record the statement of the deceased but he declined to do so and asked the Investigating Officer to record the same. However, according to PW/2, he was never asked by the Investigating Officer to record the statement of the deceased. 13 Admittedly, the dying declaration was made in the Civil Hospital at Palampur. There are a number of judicial and other Magistrates posted at Palampur. The prosecution must show that an attempt was made to contact a Magistrate before recording the statement especially in view of the fact that Dr.S.K.Bhatia stated that at about 2.00 p.m the deceased started regaining consciousness and was declared fit to make a statement only at about 4.15 p.m. Here also these two witnesses gave diametrically opposite versions. Dr.S.K.Bhatia stated that no efforts were made by him or by the police to requisition the services of a Magistrate for recording the dying declaration though Judicial and Executive Magistrates were available at Palampur. As against this version of the doctor, the investigating officer stated that he had deputed two constables for requisitioning the services of the Judicial /Executive Magistrate, Palampur but none was available in Palampur town. However, he could not produce any record of the statements of these two constables about the efforts made by them to contact the Judicial Magistrate/Executive Magistrate. He 14 also did not produce any other record to show that a Judicial Magistrate or Executive Magistrate was not available at Palampur at the relevant time. These two witnesses have also given a totally different version about the manner in which the statement was recorded. According to PW/2, the Investigation Officer put only one question to the deceased as to what had happened and thereafter, the narration was made by the deceased. On the other hand, PW/3 Swaran Singh, uncle of the deceased stated that the Investigating Officer was putting questions to the deceased and the Investigating Officer recorded her answers in the form of the statement. He categorically stated that about 20-25 questions were put by the police to the deceased. He also stated that the deceased was giving complete answers to the questions. Even PW/18 stated that he was putting questions and recording the answers of the deceased. This contradiction is also highly significant and casts a doubt on the dying declaration. From the above discussion, the following facts emerge:- 15 1. At the village and in the taxi, the deceased was conscious as deposed by PW/6, her sister’s husband and PW/7, her sister-in-law. At that time, she made no complaint that she was burnt by the accused. 2. She was taken to the Hospital at Thural but no effort was made by the Investigating Officer to produce the record of the doctor from Thural. 3. When the deceased was admitted in the hospital at Palampur, she was in a semi-conscious state but her statement was tape recorded, as is apparent from the statements of PW/1 and PW/20. This tape recorded statement has been withheld. 4. That the dying declaration was recorded by the Investigating Officer though the law prefers that it should be recorded by an independent person. This is not a hard and fast rule but here we are considering a case where the doctor stated that he was never asked to record the statement and the Investigating Officer states that he asked the doctor to record the statement. 5. There are material contradictions regarding the manner in which the dying declaration was recorded. As pointed out above, despite Executive Magistrate and Judicial Magistrate being available at Palampur neither the doctor nor the investigating Officer made any effort to associate them with the recording of the statement. In these circumstances, the chances of the deceased being tutored by her 16 relatives cannot be ruled out especially when the deceased was under agony and was admittedly being subjected to a number of painkilling medicines and other sedatives. In view of the aforesaid discussion, the learned Trial Court was fully justified in not relying upon the dying declaration. As far as the offence under Section 498-A is concerned, there is virtually no evidence whatsoever. Even in the initial complaint Ext.PB, it was not stated that any dowry was demanded. No doubt PW/3 Swaran Singh and PW/8 Chanchla Devi have stated that the deceased was being harassed but no details about the harassment have been given. No case under Section 498-A is made out. In view of above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge April 23, 2010 (Sanjay Karol) (m) Judge 17