Indu Batni & Anr. vs State of Madhya Pradesh

This appeal has been filed by the appellant being

aggrieved by the judgment dated 30.11.2005, passed by

learned Ist Addl.Sessions Judge, Shahdol in Sessions

Trial No. 154/2005, whereby the appellant has been

found guilty for the offence punishable under Section

302 of IPC and has been sentenced to undergo life

imprisonment and fine of Rs.2000/-,with default

stipulation.

The prosecution story setting in motion the

aforesaid trial, in nut shell, is that deceased Shyamkali

and accused-appellant Dharamdas loved each other and

got married against the wishes of her mother Ramratibai

(PW.1) and were living together for the last 5-6 months.

According to prosecution, on the fateful night Shankar

(DW.1) ate bread in the house of accused and went

away. Thereafter, the appellant came home at about

9.30 PM and on coming to know that Shankar had eaten

bread hit the deceased and set her on fire after pouring

kerosene on her. Hearing the shouts of the deceased

Ramratibai (PW.1) mother of the deceased, Jitendra

Kumar (PW.2) brother of the deceased and Pooranlal

(PW.3) brother of the appellant all came to the spot and

extinguished the fire. Pooranlal (PW.3) then took the

deceased to Primary Health Centre, Amarkantak for

treatment where she was treated by Dr.S.K.Singh

(PW.11) who then informed the matter to the Police

Station- Amarkantak vide Ex.P/19. Yogendra Singh

Mourya (PW.7) Naib Tahsildar recorded the dying

declaration (Ex.P/15) of the deceased at about 11.45

PM. On this information,offence under Section 307 of

the IPC was registered against the appellant which was

later on converted to Section 302 IPC as the injured

Shyamkali succumbed to the injuries after 25 days of

the incident.

To bring home the charge, prosecution examined

13 witnesses. The accused-appellant abjured the guilt

and pleaded false implication. He has examined

Shankar as DW.1 and himself as DW.2. The definite

case of the defence was that appellant and Shankar

(DW.1) were eating food in the night. The deceased went

inside the room to make more bread. As there was no

electricity in the house, while lightening the Chimney the

kerosene accidentally fell on her and she got burnt. The

appellant tried to extinguish the fire and got himself

burnt in that process.

The trial Court, after enumerating the facts and

analyzing the evidence, has come to the conclusion that

prosecution has proved the case beyond reasonable

doubt and placing reliance mainly on the dying

declaration (Ex.P/15) convicted the appellant and

sentenced him as aforesaid.

The learned counsel appearing for the appellant

have submitted that the trial Court has gravely erred in

relying on the dying declaration which was not trust

worthy on account of the fact that the deceased was

having 50-60% burn injuries and both her palms were

burnt. It is further submitted that in view of the

statement of Jitendra Kumar (PW.2) brother of the

deceased and the fact that Ramratibai (PW.1) after

hearing the victim had narrated and explained the

version to the officer taking the statement, no reliance

could be placed on the dying declaration.

Learned counsel appearing for the

respondent/State, on the other hand, has submitted

that the judgment rendered by the trial Court after

careful analysis and appreciation of the evidence, and

the dying declaration which is certified by the doctor, is

flawless and requires no interference from this Court.

We have heard the learned counsel for the parties

and meticulously perused the record.

In the instant appeal, the conviction of the

accused- appellant is solely based on the dying

declaration made by the deceased and recorded by Naib

Tahsildar in presence of the doctor. It is settled law that

while recording the dying declaration, factors such as

mental condition of the maker, alertness of the mind

and memory, evidentiary value has to be taken into

account.

In Atbir vs. Government of NCT of Delhi (2010)

9 SCC 1 , the Supreme Court, after analyzing the

various decisions on the issue has observed :-

"22.The analysis of the above decisions clearly shows that, (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the 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 that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration 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 is not to be discarded. (ix) When the eye-witness affirms that the 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 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 impediment to make it the basis of conviction, even if there is no corroboration"

In Laxman vs. State of Maharashtra (2002) 6

SCC 710 , the Supreme Court has observed thus :-

"The situation in which a man is on the deathbed is very solemn and serene, 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. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full 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 further decide that the deceased was in a fit state of mind 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 conscious state to make the declaration, 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, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. 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. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. "

Similar view is taken in Ramesh and others vs.

State of Haryana (2017) 1 SCC 529 and in Pawan

Kumar vs. State of Himachal Pradesh (2017) 7 SCC

780.

In the case at hand, the trial Court has found the

dying declaration credit worthy and has held the same

to have been made by the deceased in a fit state of mind

on the basis of the certificate given by the doctor. The

dying declaration (Ex.P/15) has been made by the

deceased to Yogendra Singh (PW.7) in presence of Dr.

S.K.Singh (PW.11). It is evident from the evidence of Dr.

S.K.Singh (PW.11), who had first examined and treated

the victim, that she was brought at 11.15 PM pm and at

that time the victim was 50-60% burnt. There were

blisters in both her hands. Her face, eye,chest were

deeply burnt. Head and hair on it were also burnt.

According to the doctor, the injuries sustained by the

victim were grievous in nature and her condition was

serious and very weak and she was under terrible pain.

In his cross-examination, the doctor has admitted that

he had given a higher doze of pain killer to the victim so

that she could calm down and sleep and thereafter sent

the information to the police station. He has further

admitted that the speech of the victim was not clear.

She was speaking Gond language, hence her mother was

called to translate and narrate her statement and

accordingly, dying declaration (Ex.P/15) was written as

per the narration made by mother of the victim.

The statement of the doctor has been corroborated

by Jitendra Kumar (PW.2) brother of the deceased who

had admitted that while recording the dying declaration

of the deceased, he and his mother were inside the room

and his mother was translating the statement given by

the victim.He has also admitted that after his sister

died, he and his mother in consultation with the police

authorities had made up a case so as to get the accused

punished.

Y.S.Mourya (PW.7) Executive Magistrate and Naib

Tahsildar who had recorded the dying declaration of the

victim at 11.45 PM has admitted that the mother and

brother of the victim were present in the room while he

had recorded the dying declaration.

It is evident from the material placed before us

that the condition of the victim was very serious and she

was under the influence of pain killer, her speech was

admittedly not clear , her hands were burnt and having

blisters. Under such facts and conditions, it is

inconceivable that the victim was mentally alert to give

her statement and was able to put her thumb

impression on the dying declaration. Apart from this, it

is also admitted fact that Ramratibai (PW.1) was

harboring a grudge against the appellant as her

daughter was living with the appellant against her

wishes and had also filed a complaint in this regard.

She had admitted that after her daughter started living

with the accused-appellant, she severed all ties with her.

In the circumstances, too much reliance cannot be

placed on the dying declaration (Ex.P/15) which was

recorded on the basis of statement narrated by

Ramratibai (PW.1).

Pooran (PW.3) who is the brother of the accused

had stated that he heard the shouts of deceased and on

reaching he saw the accused trying to extinguish the fire

and got his hands burnt in the process. He has further

stated that Shankar (DW.1) had informed him that while

putting kerosene in Chimney, the deceased got

accidentally burnt who then went out to call others. The

statement of Pooran (PW.3) is corroborated by Dr.

S.K.Singh (PW.11) who had examined the accused and

found both his hands burnt and swelling and redness

on his palms.

Shankar (DW.1), in his deposition, has stated that

on 11.04.2005 accused-appellant Dharamdas had asked

him to bring vegetable which he had gone to deliver.

Dharamdas asked him to have food with him and asked

the deceased to prepare some more breads. The

deceased went inside the room to make more bread.

After sometime she came out ablaze. According to him,

appellant Dharamdas tried to extinguish the fire while

he went to call other people from the village.

The appellant has chosen to examine himself as

DW.2. In his statement recorded under Section 315 of

Cr.P.C. The appellant has stated that he and Shankar

(DW.1) were eating food when his wife Shyamkali went

inside to make bread, after few minutes she came out

ablaze. According to the appellant, there was no

electricity in the house and while lightening the

Chimney, the deceased accidentally got burnt. He tried

to extinguish the fire and in that process got his hands

burnt. S.P.Singh (PW.12), the Forensic Science Expert in

the crime unit who inspected the place of incident has

also corroborated this fact that there was no electricity

and Chimney was used as a source of light in the house.

The consistent testimony of the appellant and

Shankar (DW.1) is to the effect that both of them were

having food in the courtyard while deceased went inside

to make more bread and in the process of lightening the

Chimney got burnt accidentally. She came out of the

room ablaze and the appellant tried to extinguish the

fire and got his hands burnt in the process. The report

also says that victim was brought to the hospital by the

appellant and his brother. The evidence of Investigating

Officer when read in conjunction with the testimony of

Shankar (DW.1) and appellant (DW.2) does not link the

appellant with the act leading to unnatural death of the

deceased. The version of the appellant is also in

accordance with the statement made by him under

Section 313 Cr.P.C.as well.

In Jose @ Pappachan vs. Sub-Inspector of

Police, Koyilandy and another (2016) 10 SCC 519 the

Apex Court held thus :-

"56. It is a trite proposition of law, that suspicion however grave, it cannot take the

place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.

The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise "The Law of Evidence" fifth edition by Ian Dennis at page 445:

"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant''s guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant''s guilt."

In Dhan Raj @ Dhand vs. State of Haryana (2014) 6 SCC 745, one of us (Hon. Ghose,J.) while dwelling on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture."

In view of the aforesaid facts and circumstances

judged on the above parameters, we are of the

considered opinion that the finding of guilt recorded by

the trial Court solely on the basis of dying declaration, is

clearly erroneous and deserves to be and is hereby set

aside. The impugned judgment dated 30.11.2005 passed

in ST No.154/2005 by learned Ist Addl. Sessions Judge,

Shahdol is hereby set aside. The accused-appellant is

acquitted of the alleged offence punishable under

Section 302 of IPC.

Accordingly, the appeal filed by the appellant is

hereby allowed. The appellant is directed to be released

forthwith, if not required in connection with any other

case.