<. HIGH COURTOFLCiIHATTISGARH, BILASPUR Divlsion Bench: Hoa'ble Shri Dhirendra Mishra 85 Hon'ble Shri Manindra Mohan Shrivastava, JJ. Criminal Appeal No.62 of 1990 APPELLANT Kaushilyabai Versus RESPONDENT State ofM.P. (now C.G.) Judgnient for considera.tion Sd/- Manindra Mohan Shrivasta Judge Sd/- Hon'ble Shri Dhirendra Mishra ^J. 3 ftjl^nh;. -^- -' ~ J/"1uhirendraMishr Post for pronouncement ofjudgment 2-:l.l-2010 Sd/- ''"'%. ^s-e^ ^ // .^«.. ^ HIGH COURT OF CHHATTISGARH : BILASPUR Criminal Appeal No.62 of 1990 APPELLANT: Kaushilyabai widow of Bahadas Manikpuri, aged 40 years, resident of Nayapara Titurdeh, Police Station Mohanngar, Tahsil and District Durg M.P. Versus RESPONDENT: State of Madhya Pradesh through the Police Station Mohan Nagar, Durg M.P. Criminal Appeal u/S 374 of the Cr.P.C. Present: Shri Arun Kochar, counsel for the appellant. Shri Ashish Shukla, Govt. Advoacte with Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'bIeShri Manindra Mohan Shnvastava, JJ. J_U_D^r M E N T (Delivered ono? & January, 2010) Per Manindra Mohan Shrivastava, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 20th December, 1989 passed in S.T. No.96/1989, by learned 4th Additional Sessions Judge, Durg, by which the learned trial Court after holding the appellant guilty for commission of offence under Section 302 of the IPC, has sentenced to undergo life imprisonment. 2. Case of the prosecution is that deceased Khemin Bai was married to Prakash Das, another co-accused two years before the date of ii .<:—.^ 6'^ incident. Appellant- Kaushilya Bai, mother-in-law of the deceased used to quarrel with her and wanted to shunt her out so as to pave way for another daughter-in-law. On 2.3.1988, deceased-Khemin Bai and her mother-in-law Kaushilya Bai had gone to watch T.V. in the house of their neighbour-Halalkhor Manikpuri. After retuming home, Manoj Das, brother-in-law of the deceased-Khemin Bai asked her to fetch matchbox and when she could not fetch; there was altercation of the deceased with her husband -Prakash Das. Prakash Das after quarreling and beating the deceased went away. It is said that thereafter appellant- Kaushilya Bai and Manoj Das with an intention to commit murder of Khemin Bai, locked her inside the room and Manoj Das tightly held the hands of deceased and thereafter appellant-Kaushilya Bai poured kerosene oil on the body and clothes of the deceased and set her on fire. While deceased was burning, Kaushilya Bai and Manoj opened the door and ran away. When deceased cried for help and came out, neighbour- Hiraman Singh Thakur (P.W.7) doused fire by pouring water on her. By that time, clothes and body of deceased - Khemin Bai were burnt. When her husband ca.me baek, she was taken to Sector -9 Bhilai Hospital. 3. It is the case ofthe prosecution that on application ofEx.P-12 ofR.K. Rai (P.W.9) T.I. Bhilainagar, Dr. H.K. Gowardhan examined the body of the deceased and found that she was 95% burnt, whereupon, the deceased was admitted to Burn Unit. Dr. H.K. Gowardhan, Casualty Officer, infornied over telephone in the Police Station -Bhilai Nagar Sector-6 which was recorded by Head Constable-Manharan Lal (P.W.2) in Rojnamcha Sanha No.219, Ex.P-2A. Dehati Nalishi, Ex.P-lA and thereafter Report, Ex.P-3 was recorded by R.K. Rai (P.W9), T.I. ^KE -) } Bhilai Nagar at 0:35 hrs. at zero number on 3.3.1988 alleginj commission of offence under Section 302 read with Section 34 of the IPC. As the place of occurrence fell within the area of Police Station - Mohan Nagar, the case was forwarded for further action to Police Station - Mohan Nagar, upon which FIR, Ex.P-1 was registered at Crime Number 78/88 at 3:00 am. on 3.3.1988 alleging commission of offence under Section 302 read with Section 34 ofthe IPC. 4. Burnt injury lead to death of Khemin Bai and thereafter an inquest over the body of deceased was prepared vide Ex.P-4 by M.D.Tiwari (P.W.4), T.1., P.S.-Mohan Nagar in the presence of witnesses. Vide Ex.P-5, application for autopsy, the dead body of the deceased - Khemin was sent to Main Hospital Durg, where Dr. Laxraisingh Dhillan (P.W.5), Asst. Surgeon & Dr. M.C. Jain perforraed postmorteni on the body of the deceased and recorded as below in their report vide Ex.P-10. (i) Smell of kerosene. (ii) Eyes closed, mouth closed, nails cyanosed (iii) Pubic 8s axillary hair burnt (iv) Superfiscial burns present over both upper limbs, both lower limbs, in front of chest and abdomen, whole of back, over neck and lower part of the face. (v) No external injuries. (vi) Raw, red surface present at many places over both upper limbs, in front of Chet and abdomen (vii) Venesection wound present inform of left ankle joint . Further in the examination following was found : brain - congested, mucus membrane of the trachea- congested, lungs were congested. ^'s"'1*^. /^ '^ X. / In Doctors' opinion cause of death was shock due to 90% superficial burns; death had taken place within 24 hrs. Viscera and vaginal smear slides were preserved. 5. It has also been alleged that when Khemin Bai was brought to the hospital and was found burnt, on call made, Nayab Tahsildar & Executive Magistrate- R.K. Sharma (P.W.6) arrived in the hospital and recorded dying declaration (Ex.P-11) of the deceased Khemin Bai at 10:50 pm on 2.3.1988 in the presence of Dr. A.K. Garg (P.W.8). Spot map, EX.P-6 was prepared by M.D. Tiwari (P.W.4), T.I. P.S.-Mohan Nagar. Pant and shirt allegedly smelling kerosene were seized from Manoj Das vide Ex.P-7 and Saree and blouse wom by appellant- Kaushilya Bai were also seized vide Ex.P-8. Burnt wearing apparels of deceased Khemin Bai along with bangles, matchbox, one 5 liters' plastic cane of kerosene containing Va liter of kerosene oil, soil ismelling kerosene were seized from the house of co-accused Prakash Das vide Ex.P-9 6. After usual investigation, Police filed charge sheet in the Court of Chief Judicial Magistrate First Class-Durg in Criminal Case No. 1326/1988 which in turn was committed to the Court ofSessions, Durg for trial, from where learned 4th Additional Sessions Judge, Durg received the same for disposal in accordance with law. 7. Learned trial Court framed chares against the present appellant- Kaushilya Bai and other accused person- Prakash Das for alleged commission of offence under Section 302 read with Section 34 of the IPC. Accused persons abjured their guilt. They were put on trial and in order to bring home the guilt, the prosecution examined in all 9 ^ ,^^ •^s^ > / witnesses. Statements of accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence. ) 8. The learned trial Court relying upon the testimony of prosecution witnesses and placing reliance upon the dying declaration, Ex.P-11, held the appellant guilty of commission of offence under Section 302, though acquitted co-accused Praksh Das, husband of the deceased. 9. Assailing the judgment of conviction and sentence, learned counsel for the appellant argued that the appellant has been falsely iraplicated in the crime in question. He contended that the deceased was brought to hospital by her husband and which conduct sides with the innocence of the appellant. He further submits that the learned trial Court has committed gross Ulegality in convicting the appellant relying upon the dying declaration which does not inspire confidence and ought not to have been relied upon as there was no medical certificate to establish that she was in a fit state of raind when the so called dying declaration was allegedly recorded. Even her thumb impression was not taken on the dying declaration. He further submits that Dr. H.K. Gowardhan, who examined the deceased upon being brought to the hospital, has not been examined nor was present at the time of recording of dying declaration. He submits that the learned trial Court while placing heavy reliance on the dying declaration failed to see that the same was not proved by R.K. Sharma (P.W.6), Executive Magistrate who only stated in his testimony that the statement was recorded, without disclosinj 1<4 //' ^ contents of the so called dying declaration. He further submits that the time mentioned in the so called dying declaration being 10:50 pm. renders entire dying declaration doubtful. Further submission made by learned counsel for the appellant to irapeach credibility of the dying declaration is that the said dying declaration nowhere records that the deceased was in a fit state of mind and that officer recording dying declaration did not put any question to the deceased as to whether she was in a position to give statement. He further subraits that the entire case of the prosecution is concocted. The conviction on the basis of so called dying declaration, Ex.P- 11, is unsustainable as in her oral dying declaration given by the deceased to her neighbour - Hiraman Singh Thakur (P.W.7) who came and extinguished fire, deceased disclosed to him that as kerosene oil fell on her, she caught burnt in the fire of Sigdi. According to him the oral dying declaration being corapletely inconsistent with the so called dying declaration ofEx.P-11 alleged to have been recorded by R.K. Sharma (P.W.6), the entire case of the prosecution becomes highly doubtful and the appellant could not be convicted on the basis of such doubtful case when there are two inconsistent dying declarations. 10. On the other hand, learned counsel for the State/respondent supported the judgment of conviction sand sentence and argi-ied that the conviction of the appellant is based on dying declaration, Ex.P-11, which was dully recorded and from the established facts and circumstances of the case the prosecution has been able to prove that the deceased Khemin Bai was set on fire by the appellant- Kaushilya Bai, her mother-in-law and there is no reason nor any circumstance to doubt the authenticity of dying declaration (Ex.P-11) and therefore the conviction of the appellant by the learned trial Court does not warrant interference. 11. We have given our anxious consideration to lengthy submission inade by the respective parties and we have perused the records of the case and the judgment of the learned trial Court. 12. Apparently, the case of the prosecution as also the judgment of conviction and sentence is based on the dying declaration. It is said that when the deceased was brought to the Sector-9 Bhilai Hospital under burnt condition by her husband Prakash, co-accused (who has been acquitted of the charges), she was examined by one Dr. H.K. Gowardhan who allegedly informed in the Police Station - Bhilai Nagar and Manharlal (P.W.2) recorded Rojnamcha Sanha No.219, whereupon, R.K.Rai, (P.W.9), T.I. Bhilainagar proceeded to Sector -9 Hospital, Bhilai and recorded Dehati Nalishi, Ex.Pl-A at 22:20 hrs. in hospital followed by dying declaration recorded by R.K. Sharma (P.W.6) Executive Magistrate. It has therefore to be seen whether the conviction of the appellant based on above said dying declarations is sustainable in law. 13. In the matter of Heikrujam Chaoba Singh Vs. State ofSSanipur, 1999 (4) Crim.es 327 (SC) the Apex Court while considering the reliability ofan oral dying declaration held thus: "An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboradon as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said ^-•^: -^y' declaradon was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutinyof reliability" In the matter of Muthu Kutty and another Vs. State Inspector of Police, T.N. (2005) 9 SCC 113 the Apex Court held that: "The law regarding dying declaration is that it is an exception to the general rule against hearsay evidence elaborated in Section 60 of the Evidence Act, 1872. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo morturus praesumitur mentire- a man will not meet his maker with a lie in his mouth." Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of • the statement would leave the court without a scrap of evidence. The Apex Court held that though a dying declaration is entitled to great weight, it must be kept in mind that the accused has no power of cross- examination. Such a power is essential for eliciting the truth. This is the reason the courts also insist 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, 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. The Apex Court said that 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. 15. In the case of Laxman Vs. State of Maharashtra, 2002 (6) SCC 710 while resolving the conflict of opinion as to the manner of testing the credibility of dying declaration, overruling view taken in Paparambaka Rosamma Vs. State of A.P., 1999 (7) SCC 695 and approving the correctness of the view taken in Koli Chunilal Savji and Anr. Vs. State of Gujarat, 1999 (9) SCC 562 it was authoritatively pronounced as under The juristic theory regarding acceptability of a d}dng 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 exerdsed in considering the weight to be given to this species of evideace on account of the existence of inany circumstances which may affect their truth. The situation in which a man is on fhe deathbed is so solemn and serene, is the reason in law to accept the veracity of his stateinent. It is for this reason the requireinents of oath and cross-examinatioa are dispensed with. Since the accused has no power of cross-examination, the courts insist that fhe dying declaration should be of such a nature as to inspire fuU 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 furtber decide that tbe deceased was in a fit state of inind 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 consdous state to make the declaration, /r lj ?;' ^ '" '^. ---£,. ^ •s^^"^ 'i'. ffSf--"^ j; \ ^-^ ""-E^ 8 10 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, tbe dying declaration is not acceptable. A dyin; declaration can be oral or in wridng and any adequate inethod of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In inost cases, however, such stateraents 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 caU a Magista-ate, 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. Consequendy, 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 fbe declaraat was fit to make the statement even without examination by fhe 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, fhe vohintary and truthful nature of ftie declaration can be established otherwise." 16. Recently, in the case of Nallapati Sivaiah Vs. Sub-DivisionaI Officer, Guntur. A.P. (AIR 2008 S.C.19), Apex Court held as under: "20......It is also a settled principle of law that dying declaration is a substantive evidence aad an order of conviction can be safely recorded on the basis of dying declaration provided tbe 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 fhe principle that for relying upon fhe dying declaration the court must be conscious that the dying declaration was voluntary and ,//" 11 ?/" --^y further it was recorded correctly and above all the raaker was in a fit condition - inentally and physically - to rnake such stateinent. 21. In Smt.Panibenvs.StateofGujarat,(1992)2SCC474this court while stating that a dying declaration is entitled to great weight however cautioned to note that tbe accused has no power to cross-examination."Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason fhe 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 guai'd 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. Once the Court is satisfied that the declaradon was true and voluntary, undoubtedly, it can base its conviction wifhout any further corroboration. It caanot be laid down as an absolute rule of law that the dying declaration cannot fonn fhe sole basis of conviction unless it is corroborated. The rule requiring corroborauon is merely a rule of prudence. This Court has laid down in several judgments the priaciples governing dying declaration, which could be summed up as uader:(i) There is neifher rule of law nor of prudence that dyiag declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.)376; (1976) 2 SCR 764.(ii) Ifthe Court is satisfied fhat the dying declaration is true and voluntary it can base conviction on it, wiftiout corroboration. (State of U.P. v. Ram Sagar Yadav) (1985) 1 SCC 552: 1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati Devi v. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164.(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. (K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994.(iv) Wbere dying declaration is suspicious it should not be acted upon witiiout corroborative evidence. (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is •''^^' 12 to be rejected. (Kake Singh v. State ofM.P.) 1981 Supp. SCC 25 : 1981 SCC (Cri.) 645 : AIR 1982 SC 1021.(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581.(vii) Merely because a dying declaration does not contain fhe details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617.(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505.(ix) Normally the court in order to satisfy whefher 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 inake this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.) 1988 Supp.SCC 152 : 1988 SCC (Cri) 342 : 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. (State of U.P. v. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519." 17. The judgment of Constitution Bench of the Apex Court in the matter of Laxman Vs. State of Maharastra (supra) was explained as under: The Constitution Bench in its authoritative pronounceinent declared that there is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patieat was in a fit state of mind especially when a dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that fhe declarant was fit to make £he statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor provided the court ultimately holds the same to be voluntary and truthful. The judgment does not lay down a proposition that medical evidence, even if available on record, as also the other attending circumstances should altogether be ignored and kept out of consideration to assess the evidentiary value of a dying declaration '"'.v"'1-^ ''%, I'1 y,,_r,s:^. 'i'. 3 ^^B^^^ • ^ 13 ~> 1 ff S •s-.-s3 /^~'/ whenever it is recorded by a Magistrate. The Constitution Bench resolved the difference of opinion between the decisions expressed by the two Benches of three learned Judges in Paparambalca Rosamma and ors. Vs. State of A.P. and Koli Chunilal Savji and anr. Vs. State of Gujarat (Supra) and accordingly held that there is no requirement of law that there should be always a medical certification that the injured was in a fit state of mind at the time of making a declaration and such certification by the doctor is essentially a rule of caution and even in the absence of such a certification the voluntary and truthful nature ofthe declaration can be established ofherwise." 18. Applying the aforesaid principles laid down by the Hon'ble the Supreme Court in its various judgments quoted above, it has to be examined whether the prosecution has been able to prove its case on the