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PADMABEN SHAMALBHAI PATEL v.

STATE OF GUJARAT

JANUARY 18, 1991

[A.M. AHMADI, V. RAMASWAMI AND

M. FATHIMA BEEVI, JJ.]

Indian Evidence Act, 1872: S.32-Dying declarations-Recorded bymedicalmen-Not in question-and-answer form-Probative

ylue of-Whether conviction can be based on.

Indian Penal Code, 1860: S. 302-Homicidal death-Deceased

~t aflame by pouring kerosene-Suffered 90% burns-Dying declarations made to medical-men-Accused named as tormentor-Acquittal by Sessions Court on benefit of doubt-:-Appeal against-Conviction- Sentence of life imprisonment awarded-Validity of

':fhe wife of appellant's brother was found aflame in the early

hurs of 11.6.1975 in the kitchen of her husband's house. She was taken to h0, spita~ a11d aditted to Burns-ward whee the doctor in charge (PW

5) examined her and while taking her case history enquired of the injured as to what happened, to which she replied, "my nanad (sisterin-iw) burnt e". She had suffered 90% of bums. The nurse (PW 4)

as instructed to give treatment. Later another doctor (PW 2) attended 011 her. Whe~ }le ask~ her as to bow she had received the burns, she told. him that her husband's sister had burnt her. In reply to his further

ciury, she namect he appellant as her tormentor. He made a note of this fuformation by the victim on the police 'yadi' which was sent to him to ascertain if the victim was in a fit condition to make a dying declaration.

As'her condition deteriorateci, the victim was not in a position to make

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.,..,, II l'.' . < : " • any staten; i.nt t~ the police. The investigation culminated in the appella11:t '1eg charged u11der s. 302, I.P.C. for causing the murder of her

- t>i:it:~s. wife by poµi; ing kerosene on her person and setting her

aflam~ •

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On trial, the Sessions Court held that the deceased had not the

rq1,1tsite. ~~".tat c0n.dition so as to make an aptabie !lyh; g_declaration. and that her busband was very much near the cot, and hence possibility (lf.' iutobig !th~ dceased could not .be ruled out. Giving the benefit of '•?

T I • .( f ·. t .i" 1 ' ' ·- , ' doubt it acquitted the appellant. \.4. ~). •• ' l :ii- .... \. • • ' c. "( - '[ ; i.~ - . • '

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In the State's appeal ag.tinst acquittal, a Division Bench of the A High Court re-appreciated the prosecution evidence and after ciosely

xamining the reasons given by the Sessions oourt, held them thoroughly untenable and not supported by the evidence on record. It set aside the order of acquittal, convicted the accused of murder and sentenced her to imprisonment for life. ., B

The appellant-accused appealed to this Court challenging the aforesaid conviction and sentence on the ground that the High Co.Uri erred in law in holding the view taken by .the trial court as les8 prob~ able. It was contended that the deceased having suffered 90% of burns and her general condition being poor, she was not in a fit mental state to make the dying declaration; that the dying declarations were not in t question-and-answer fopn; and that the p0ssibility of tutoring the deceased could not be ruled out.

Dismissing the appeal, this Court,

HELD: 1. A dying declaration is admissible in evidence .. l'.i the principle of necessity and can form the basis for conviction if; f~~ttitd to be reliable. While it is in the nature of an exception to t~.· al rule forbidding hearsay evidence, it is admitted on the preriliss that ordinarily a dying person will not falsely implicate an innocent rs0fi in the commission of a serious crime. It is this premiss which is ronsidered strong enough to set off the need that the maker of the siate'ment should state so on oath and be cross-examined by. the person who is

sought to be implicated. [94H; 95A•B}

2.1 Being an independent piece of e'Viacnce like any otlief pi~ of evidence-Neither extra trong nor weak-a dying declaration can i; e' acted upon without corroboration if it is found to be otherwise true and F reliable, and in order to form the sole basis for conviction witlfuut the need for independent corroboration it must be shoWb d1'at itie persoli making it had the opportunity of mdentifying the persc>n ifnpftcitcd ail([ is thoroughly reliable and free from blemish. [9Sn; 9sBJ

2.2 If it is found that the maker of the sia1em'eiit w$ in a fit stilit 6

of mind and had volunatariiy made the statenient on the basis oi personal knowledge without being influenced by others and the com oil. strict scrutiny rmds it to be reliable, there is no role /jf IlW' or' even Of prudence thllt such a reliable piece of e\lideiice cannot .f\le ·~ u, ow unless it is corroborated. [9sc] - ; ti

3.1 In the instant case, since the incident occurrect In the eatiy hours of the day, there was possibility of il family member being involved; and as the incident took piace in broad day light; there could be no doubt that the deceased had an opportunity to see bet' tormentor. The deceased told the doctor (PW 5) that her 'nanad' had set her on fire. Since the appellant was the only sister of her husband, there remained no doubt about the identity of the 'naoad' (husband's shter or sister-in-law). Doubt, if any, was removed by another doctor's (PW 2) to whom she disclmed the name of the appellant. [9SD; 94D, 95F-O]

3.2 The mere fact that the deceased had suffered 90% burns and her general condition was poor' was no reason to discard the testimony C . of both the medical Dien when they said that she was in a fit state of mind and was able. to make the dying declarations in question. Both the doctors were conscious of her condition and would not have attached any importance to her statement if they had any doubt about her mental capacity. Besides the oral evidence of the two medical men, there were

contemporaneous documents showing that the deceased made the statements in question. [96E; 95G; 94G J

Sure.$h ! . State of M. P., (1987] 2 SCC 32, relied on.

3.3 The doctors (PW 2 and PW 5) merely questioned the victim for the limited purpose of recording the case history. Having regard to her condition, they could not have questioned her in detail. In the circumstances, the fact of the statements being cryptic was understandable; and the failure on their part to record her statements in question- .and-answer form could in no manner affect the probative value to be attached to their evidence. {97 A-B; 96G] ·

Bankey lalv. State of U.P., (1971) 3 SCC 184, relied on and Rabi Chandra Padhan & Ors. v. State of Orissa, (1980] 1 SCC 240, held inapplicable.

4~ Being conscious of the fact that while dealing with an acquittal appeal,· the I cOurt Should give due Weight tO the vieWS Of the trial CQurf On G the question of -credibility of the prosecution evidence and should not lightly interfere with its appreciation, the High Court carefully scrutinised the evidence, particularly in regard to the two oral dying declarations, and rightly concluded that there was no possibility of tutoring nor was the deceased1 mentally unfit. to make the said dying H declarations~ {93C-E] · -

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Balak Ram & Anr. v. State of U.P., [1975] 1 SCR 153 and Lallubhaiv. State of Gujarat, [1971] 3 SCC 767, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 326 of 1979.

From the Judgment and Order dated 4.5.1979 of the Gujarat B High Court in Criminal Appeal No. 389 of 1976.

T.U. Mehta, P.H. Parekh and Ms. Geetanjali Mathrani for the Appellant.

D.A. Dave, Anip Sachthey and B.R. Jad for the Respondent.

The following Order of the Court was delivered:

The appellant was charged under Section 302 I.P.C. for causing murder of Gangaben, her brother's wife, in the early hours of 11th June, 1975 by pouring kerosene on her person and setting her aflame.

The marriage had taken place with J ayantilal, the brother of the appellant, hardly three months before the incident in question. On the date of the incident the deceased was in the husband's house when the unfortunate incident took place. On hearing the. cries a neighbour Prahladbhai went to the house and found that the deceased was inside the kitchen. He pushed opened the door and saw the deceased aflame.

The said Prahladbhai, Bhanubhai, the brother of the appellant, and others took her to Shardaben Hospital for treatment. They reached the casualty department at about 6.45 a.ni. and thereafter she was admitted to the Burns-Ward as an indoor patient at about 6.50 a.m.

Within five minutes thereafter PW 5 Dr. Kiritkumai: Solanki examined her. While taking her case-history he enquired of the injured as to what had happened. The injured replied "my nanad (sister-in-law) burnt me". He prescribed certain medicines, noted the case-history and thereafter instructed the nurse. PW 4 Pankajben, to give the treatment. Dr. Solanki was incharge of the Burns-Ward at the relevant time as PW 2. Dr. Suresh Ambvani, was absent. Dr. Ambvani arrived at about 8.30 a.m. ip. the ward and examined the patient. After noting her pulse, etc., he asked her how she had received the burns. She told him that she had been burnt. On further questioning she stated that her hµsband's sister had burnt her. Dr. Ambvani thereupon asked her the name of her husband's sister which she disclosed as Padma, the appellant before us. Dr. Ambvani later made a note about the information divulged by the victim on the e_lice 'yadi' whch was received

at about 2.45 p.m. to ascertain if the victim was in a fit conditiOii to make a dying declaration.

After the victim was brought io the hospital a teiephtine message was sent to Madhupura Police Station. The investigating officer in the course of investigation recorded the panchnama of the scene of occurrence at about 10.15 a.m. The panchnama shows that the residence of the victim was on the first floor. In the outer rooin pieces of butnt clothes and a peeled skin piece were found. To the south thereof was the kitchen which was smelling of kerosene. Pieces of burnt clothes were also lying in that kitchen. There was a primus with a burner and broken match bo_x soiled with :water lying alongside certahi garments, namely, two blouses, two petti-coats and two half burnt satees. There was water on the floor.

'Inspec.tor Nagori claims to have interrogated the accused on tiie same day but arrested her on the next day at about 5;00 p.m. The investigation thereafter proceeded in usual course and ultimately the D appellant came to be charged as stated above.

The prosecution mainly reiies on the evidence of the two medical men PW 2 Dr. Ambvani and PW 5 Dr. Solanki. In addition thereto reliance is place'd on the evidence of the two nurses PW 3 Rukshmaniben and PW 4 Pankajben. The neighbour PW 7 Prahladbhai was also examined but he turned hostile. On an appreciation of the evidence of these witnesses the learned City Sessions Judge, Ahmedabad, canie to the conclusion that this was a case of homicidal death. That conclusion has been confirmed by the High Court aiid has not been contested before us. With regard to the evidence of the hvti inetlicai irleri the trial judge _concluded that there was no reason to doubt their testiinony since the saine was corroborated by the contemporaneous entries made by them in the case paper and the police 'yadi'. Taking note of the evidence of PW !Dr. Piirohit who performed the post-ortem and the evidence of PW 5 Dr. Solanki, he came to the conclusion that the victim was in a position to speak. Having regard to the fact that she had 90% of burns, her prilse was 130, respiration was 20 and her general condition was not good, he coricluded, relying on the decisions of this Court in Balak Ram & Anr. v. State of U.P., (1975] 1 SCR 753 ( 1975 Crl. Appeals Reporter 39) and Lallubhai v. State vf Gujarat,

[ 1971] 3 sec 767 ( i972 Crl. Ll 628) that the deceased could riot be in a fit state of mind wheri she iriade the dying declaration. He thought it unsafe to place implicit reliance on the said evidence paHicuiady because it was the ctppeifant's cohterition that she was not on g0od

terrris witil Her b'roiher i.e. the husband of Hie deceased. the learned trial j ucige aiso thought that the possibillty bf tUtoririg couid not b'e ruled out. In this view, that he took, he gave ilie beriefit of doubt to the appeilant and acquitted her.

The State feeling aggrieved, filed an appeal; being Criminai Appeai No. 389 of 1976, which was heard and decided by a Division Bench of the High Court of Gujarat on 4th May, 1979. The High Court on a re-appreciation of the prosecution evidence concluded that tl:ie view taken by the learned Sessions Judge was thorougiily utitenable.

The High Court pointed out that two main reasons which weighed with the learned Sessions iudge for acquitting the appellant were-"(i) that the deceased had not the requisite mentai condiiion so as to rna:ke acceptable dying declaration: arid (ii) that her husband'was vefy much near the cot of the deceased, and hence, the possibility of tutoring the deceased cannot be ruled out". The High Court closely examined both these reasons and conchided that they could not be supported by the evidence ori record. Being conscious of the fact that while dealing with

an acquittai appeal, the High Court should give due weight to the ij views tif the trail court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation, it carefully scrutinized the evidence, particularly in regard tb the tWo otai dying declarations, arid concluded that there was no possibility of tutoring rior was the deceased mentaliy unfit to niake the dying declarations. fo that view of the matter it reversed the order of acquittal, convicted the appellant of murder and sentenced her to life mipri5orunent . •

Mr. Mehta, the learned counsel for the appeliarH, has taken us through the entire evidence as well the case law on which the learned trial Judge has based his order of acquittal. H.e also invited our attention to a ni.Iinoet of decisions of this Court in support of his cohteritioti that the High Court ought riot to have interfered with the drder of acquittal. According to him the High Court should Have giveti dtie tegatd to ine appreciation of evidence by the iriai court and should riot have iightly brushed aside its condiisioh ori facts. Cdtinsei submitted that an order bf acgi.Iittal strengthens the prestimption of innocence which should not be dislodged unless the appellate court conies to the conclusion that the trial court has committed a manifest ertcir of judgment resulting in miscarriage of justice. His submission was that this Court should approach the question by inqufring if the High Court had adhered to tiie well-seh!ed prillciple that if two views are pdssible arid the trial cotirt accepts one view whicli t&e High Court cbhsiders Jess probable, the High tourt will rtot reverse tile trial coi.iit lasHy he

A contended that although a conviction can be based-sofeIY on a dying declaration, courts should be slow to accept a dying declaration as true where it is not recorded in question and answer form and is cryptic.in ,,.,, nature, since it is,3 piece of evidence not tested by cross-examination.

The weight to be attached to a dying declaration must largely depend on whether or not the deceased was a fit state of mind to make it an<; l B since in the present case the trial court had ruled against the prosecl!ltion, the High Court was not justified'inreversing the trial court, mo're so beca\, lse it was doubtful if she could speak at all having regard tq the burns on her lips and tongue. In support of his_submissions he cited a "- - host of decisions of this Court but it is unnecessary to refer to them as on principle there can be no dispute with the propositions of law stated c by the appellant's counsel. We have given our anxious considerations to these submissions but we are afraid we cannot accede to them because in the facts of the present case we are satisfied that the High Court would have failed in its duty if it had not reversed the decision of the trial court.

y D.

The evidence on record shows that the marriage had taken place hardly three months before the incident. Even on the appellant's own showing her relations with the deceased were not strained. The appel- !ant is the only sister of the husband of the deceased. The word 'nanad' means the husband's sister. Therefore, when the deceased told PW 5 Dr. Solanki that her 'nanad' had set her on fire, she meant the appel- E !ant and none else. The evidence of nurse PW 4 Pankajben corrobo- _>--- rates the evidence of Dr. Solanki. Both these witnesses have deposed that the deceased was in a fit state of minq and was able to speak, elbeit with difficulty. If there was any doubt 6n the question of identity it was cleared by PW 2, Dr. Suresh Ambvarii fo whon; i the deceased - gave the name of her tormentor as Padma. The learned Sessions F Judge, also came to the conclusion that notwithstanding the extensive -burns the patient was conscious and was able to speak at the time she r made the d_ying declarations. Her condition soon deteriorated and by

-->< 2 .45 p.m. she was not in a position to !Ilake any statement to the police as recorded by PW 2 Dr. Ambvani on the police..-'yadi'. Dr. Anibvani had, however, recorded what the patient had tolO him. Therefore, G besides the oral evidence of the two medical-men there are contemporaneous documents which go to show that the deceased made the statements in question. Even the learned Sessions Judge did not doubt the correctness ot truth of what both the medicalmen dep_osed but in ..... his view the deceased was not mentally fit when -she named the r--

appellant. iJlll H It is well-settled by a catena of cases that a dying declaration is

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P.S. PATEL v. STATE OF GUJARAt 95

admissible iti evidence on the principle of necessity and can fonn the basis for conviction if it is found to be reliable. While it is in the nature !:lf aft exception to the general rule forbidding hearsay evidertce, it is admitted ofi the premiss that ordinarily a dying person will not falsely itnpllcate an innocent person in the commission of a serious cdtne. It is this premiss which is considered strong enough fo set off the need that the maker df the statement should state so on oath and be cross" examined by the person who is sought to be implicated. in otder that Ii dying deelaration tnay form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances Of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement oil the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated, A dying declaration is an independent piece of evidence like any other piece of evidenceneithe~ extra strong nor wea.~-and can be acted upon without corroboration if it is found to be otherwise true and reliable. In 'the present case there can be no doubt that the deceased had an opportunity to see her tormentor as the incident happened in broad day light. Since the incident occurred in the early hours of the day there was the possibility of a family member being involved. There being no dispute that death_ was homicidal, the question is who did it? As n"o relative from the side of her parents was present, the possibility of tutoring by them must be ruled out. The theory that her husband prompted her to name the appellant because his relations with the appellant were strained must be brushed aside as devoid of merit. Except the appellant's statement in this behalf, there is no other evidence-no such foundation was laid in the cross-examination of the investigating officers. Since it is conceded that the appellant's relations with the deceased were not bad, it _is ifficult to understand why the latter should falsely involve her, assuming her husband did prompt her, and allow her real tormentor to escape. Since the appellant is the only sister of her husband, there remains no doubt about the indentity of the 'nanad' (husband's sister or sister-in-law). Doubt, if any, is removed by PW 2 Dr. Ambvani's evidence to whom she disclosed the name 'Padma'. Both the medicalmen were conscious about her condition and, therefore, they would not have attached any importance to her statement if they had any doubt about her mental capacity. Even Mr. Mehta had to concede that he was not in a -position to say that the two medical-men were motivated in giving false evidence.

Mr. Mehta, howevet, contended that apart frotn the fad that the appellant had 90% burns, her pulse rate was high and she had respiratory difficulty, the evidence of PW 5 Dr. Solanki shows that he had prescribed morphine injection and, therefore, by the time PW 2 Dr.

Ambvarii examined her she couid not be in a concious state to make the dying declaration to him. In this connection he relied on the statement of PW 4 Pankajberi who stated that she had given the treatment prescribed by Dr. Solanki. Mr. Mehta, however, overlooks PW 4 Pankajhen's categbricai statement that she had iiot given any injection to the victim. On the other hand the other nurse PW 2 Rukshmaniben deposed that she had given the morphine injection intravenously.after Ot. Ariibva:ni left the ward. Therefore, this submission has no merit.

Mt. Mehta then submitted that having regard to the fact that the victim had 90% burns and her general condition was poor, it would be haiardous to ho1d that het statements to the two medical-men were true. He also argued that she had burns on her lips and her tongue was swollen making it doubtfill if she could talk. We do not think there is any merit in this submission. In Suresh v'. State of M.P., [1987) 2 SCC 3.2 this Court was required to deal with a more or less similar situation.

In that case the victim had sustained 100% burns of the second degree arid het dying declaration was recorded by Dr. Bhargava in the hospita:i. Dr. Bhatgava had deposed that the victim was in a fit state of health. The evidence; however, disciosed that while Dr. Bhargava was rec'ordiiig het statement the victim had started going into a coma. Yet this Court accepted the dying declaration made by the victim to Dr.

Bhargava. Therefore, the mere fact that she had suffered 90% burns and her getietal condition was poor is no reason to discard the testimony of both the tnedical-men wheri they say that she wa& in.a._tit state of mind arid was able to make the dying declaration i?_qUestion.

Lastly, the contention that since the dying declarationS: w.ere not in question and answer form they must be discarded altogethey.Jf; not correct. Dr. Solanki had merely asked the patient how she was burtit to record the history of her case. the victim answered by stating that her 'nanad' (husband's sister) had burnt her. Dr. Ambvani too had trlerely ttied to ascertain from the' deceased how she was burnt and it was only after she stated that she was burnt by bet sister-in-law that he tried to find the name of her tormentor. In these circumstances we do ritit think that the failure on the part of the m:edical-ruen to record her statements in question and answer form can in any marth:er affect the ptobittive value to be &ttached to their evidence. In Rabi Chandra Padftan & Ors. v. Staie bf drissa, (19801 1sec240 at p. 244 this Court

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merely stateq that the dying dec)aration SQ()U!c:l preferably b~ iq t~~ question aqd answer form. Thai would be so when the st; iteµiept of the yictim is sought to be recorded as a dyi:ng declar~JiPI!· But in the instant case as see~ from th~ evid.ence of J:>p~~ the mdial-meI). they

merely questioned her for the limited prpose of stating the history of the case. Even othenvtse having regarc:l t() her cpnqitjon they couM not have questioned her in detail. In sucq circumst:ines tle t:ic~ qf the statements being crypti!:: is understandable. See Bankey [-, al y. State of

U.P. [1971] 3 SCC 184. We, therefore, do not thiq~ that it would be reasonable to discard the prosecµtiop vidence in regarc:I to tpe dying declaration on such slender group.ds.

In the result we see no merit in this appeal and dismiss he same. C The appellant will submit to her bail within fifteen days from today.

Bail bond will stand cancelled.

R.P.

Appeal dismissed.