Faggobai vs State Of Madhya Pradesh

The appellant has filed this appeal against the judgment dated 22.03.1996, passed by the 2nd Additional Sessions Judge, Seoni in S.T. No.19/1994,

whereby the appellant has been found guilty for the offence punishable under Section 302 of IPC and has been sentenced to life imprisonment and

fine of Rs.5000/-, in case of default rigorous imprisonment for six months.

The prosecution story, in brief, is that the deceased was married with the son of the appellant. The husband of the deceased was not treating

her well, he used to beat her. On the date of incident, it is alleged that there was a quarrel between the deceased and her husband and in that event

the appellant who is mother-in-law and husband of the deceased poured kerosene on her and ablaze her. The deceased was admitted to the hospital

where she died. A report of the incident was lodged at the police station. Police conducted investigation and filed charge-sheet against the husband

and present appellant. Both abjured their guilt and pleaded innocence.

The trial Court acquitted the husband and convicted the appellant against the charge of murder and awarded the sentence of life.

Learned counsel for the appellant has contended that on the same set of evidence, the trial Court has acquitted the husband. The dying

declaration of the deceased against the appellant is not reliable and the prosecution has failed to prove the charge of murder against the appellant

beyond reasonable doubt.

Learned Government Advocate for the respondent/State has submitted that the trial Court has appreciated the evidence properly. There is dying

declaration of the deceased and the evidence of PW-3 Jyoti hence the conviction and sentence as awarded by the trial Court against the appellant is

proper.

The conviction of the appellant is based on the dying declaration of the deceased (Ex.P-4) recorded by the Executive Magistrate (PW-10) and the

statement of the deceased (Ex.P-5) recorded under Section 161 of the Cr.P.C. by the police person (PW-9) Lekhram, Head Constable.

The deceased in her dying declaration (Ex.P-4) recorded at midnight 00.15 a.m. stated that at around 8 o'clock the picture was finished. There

was a quarrel between me and my husband; in between the quarrel my husband and present appellant mother-inlaw had poured kerosene on me and

ablaze me. She answered the questions that who had burnt her; the husband and the appellant mother-in-law. She further stated that at the time of

incident her husband and mother-in-law were in the house. The dying declaration was recorded by Executive Magistrate (PW-10). There is also

noting of the doctor and signature that deceased was in a fit mental condition to give the statement.

Executive Magistrate, Mr. Aditya Richhariya (PW-10) deposed that on 11.10.1993, I was posted as Nayab Tehsildar seven years ago; in the

night I received an application from police constable in which a request was made to record a dying declaration of Jyoti Daheriya. I went at District

Indra Gandhi Hospital taking with me the doctor, who certified the mental condition of the deceased. Doctor certified that the deceased was in a fit

condition to give dying declaration. All the persons who were in the room except doctor were sent outside the room, thereafter I recorded dying

declaration of the deceased which is Ex.P-4 and signed the same. I asked questions from the deceased and she answered the questions. He further

deposed that the deceased was in a fit mental condition to give the dying declaration.

Assistant Surgeon, Dr. M.N. Trivedi (PW-8) deposed that on 10.10.1993 Jyoti Daheriya (deceased) was admitted in the hospital at around 10:20

in the night. She was identified by her father. There were burn injuries on body of the deceased from burning of kerosene while she was in a

conscious state. I submitted the report which is Ex.P-3 at around 12:10 in the night. I examined the deceased before recording the dying declaration,

she was in a fit condition to give dying declaration. I certified the same on Ex.P-4, thereafter Nayab Tehsildar Mr. Richhariya recorded the dying

declaration.

Head Constable, Lekhram (PW-9), who was posted at police station at the relevant time. He deposed that I recorded statement of Jyotibai on

10.10.1993 at 11:00 o'clock before Devendra and Beniram. Jyotibai put her thumb impression on the statement which is Ex.P-5. In Ex.P-5 which is

the statement of the deceased, it is mentioned that my husband and present appellant ablaze me. My husband used to come to the house after taking

liquor and when I object, he used to beat me.

Apart from these statements, PW-3 Jyoti deposed that on 10.10.1993 at around 9:30 to 10:00 o'clock in the night, I had heard the cry from the

house of the deceased then I went to the house and noticed that wife of the deceased was burning, thereafter, hearing the cry, other persons of the

Mohalla came there and covered the body of the deceased by blanket. When they were taking the deceased to the hospital in a riksha, the present

appellant was weeping. She further deposed that when the deceased caught fire the husband of the deceased was not in the house, however when

there was a quarrel at that time the husband, present appellant and deceased were present in the house.

The father of the deceased deposed that the accused used to beat the deceased and he used to drink liquor. It has been deposed by PW/4 and

PW/5 that there was a quarrel between the appellant and the deceased.

Dr. V.K. Sharma (PW/7), who performed postmortem of the deceased verified the fact that the deceased was died due to burn injuries.

The question for consideration is whether the appellant could be convicted on the basis of evidence when another co-accused husband of the

deceased has been acquitted by the trial Court. The Apex Court in the case of Atbir vs. Government of NCT of Delhi reported in (2010) 9 SCC 1,

held in regard to dying declaration:

“18) In State of Rajasthan vs. Wakteng, (2007) 14 SCC 550, the view in Balbir Singh's case (supra) has been reiterated. The following conclusions

are relevant which read as under:

Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.

While great solemnity and sanctityis attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to

concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring,

prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make

the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once

the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.

19) In Bijoy Das vs. State of West Bengal, (2008) 4 SCC 511, this Court after quoting various earlier decisions, reiterated the same position.

20) In Muthu Kutty & Anr. Vs. State ByInspector of Police, T.N., (2005) 9 SCC 113, the following discussion and the ultimate conclusion are

relevant which read as under:

This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so

solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept 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 eyewitness in a serious crime, the exclusion of the statement would leave the court

without a scrap of evidence.

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 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. 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.

21) The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190

and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474.

22) The analysis of the above decisionsclearly shows that,

(i) Dying declaration can be the solebasis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied thatthe deceased was in a fit state of mind at the time of making the statement and that it was not the result of

tutoring, prompting or imagination.

(iii) Where the Court is satisfied thatthe declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as anabsolute 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.

(v) Where dying declaration issuspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffersfrom infirmity such as the deceased was unconscious and could never make any statement cannot form the

basis of conviction.

(vii) Merely because a dyingdeclaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it isnot to be discarded.

(ix) When the eye-witness affirms thatthe deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court issatisfied 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 impediment to make it basis of conviction, even if there is no corroboration.

The aforesaid principle has been reiterated by the Hon'ble Apex Court again in the case of Pawan Kumar vs. State of Himachal Pradesh reported

in (2017) 7 SCC 780, held thus:

“28. Recently, in Gulzari Lal vs. State of Haryana, (2016) 4 SCC 583, the Court confirmed the conviction by placing reliance on the statement

made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman vs. State of Maharashtra, (2002) 6 SCC

The analysis in the said case is as follows:-

“23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased

for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his

statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been

accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.

The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the unshattered testimony of

the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11).â€​

In the present case, the trial Court disbelieved the dying declaration of the deceased against the husband on the ground of the statement of PW-3,

who deposed that the husband was not at home at the time when the deceased was burning, however, the deceased in her dying declaration recorded

by the Nayab Tehsildar and another statement recorded by the police deposed that there was a quarrel between her and her husband. Thereafter,

present appellant and her husband poured kerosene on her and ablaze her. The statement is consistant, in our opinion, when the trial Court has not

relied on the dying declaration of the deceased in regard to her husband on the same set of evidence, the dying declaration cannot be held reliable in

regard to present appellant.

Apart from this, PW-3 further deposed that when the deceased was taken to the hospital the appellant had also gone with the deceased she

was weeping, in view of the aforesaid fact of the case, in our opinion, the appellant is entitled to get the benefit of doubt. The trial Court has

committed an error in convicting the appellant.

Consequently, the appeal filed by the appellant is hereby allowed. The judgment of conviction and sentence passed by the trial Court is hereby set

aside. The appellant is on bail. Her bail bonds are discharged.