Satish & Another vs State Of Madhya Pradesh

Sheel Nagu, J.

The present criminal appeal filed u/S 374(2) of IPC assails the judgment dated 30.03.2009 passed in S.T. No. 193/2008 by which appellants have

been convicted u/S 302 of IPC and sentenced to suffer life imprisonment with a fine of Rs. 2,000/- in case of each of the appellants with default

clause.

Learned counsel for the rival parties are heard finally.

Death of one Reena (wife of the appellant no. 2 Naresh) who died due to burn injures in an incident dated 22.03.2008 has given rise to the

prosecution in question where both the appellants Satish and Naresh (brother-in-law[Jeth] and husband) respectively of the deceased are convicted

and sentenced as aforesaid.

CONTENT & CONTEXT

(i) Bare facts giving rise to the prosecution in question are that on 22.03.2008, at around 6:00 p.m., deceased Reena was brought in burnt state to the

hospital by her brother Monu. The deceased was subjected to medico-legal-examination where MLC Ex. P-3 was prepared showing the patient to be

irritable, but conscious and body smelling of kerosene oil. The pulse rate was just palpable while the blood pressure was unrecordable and the R/R

was fast. The doctor found the extent of burns to cover 90-95% of body where skin of different parts of the body was peeled and superficial to deep

burns were found over body except skull, both soles and palms. The police was accordingly intimated and the Additional Tehsildar, Shivpuri was

requisitioned to record the dying declaration.

(ii) The dying declaration Ex. P-4 was recorded by the said Executive Magistrate Kaptan S. Raje PW-3 on the basis of certification recorded by Dr.

Sacchanand Milwar PW 2 , Medical Officer, Distt. Shivpuri that the patient is conscious though irritable, but was able to give her statement and that

after clinically examining the deceased, patient was fully conscious during recording of dying declaration.

(iii) The dying declaration Ex. P-4 disclose that appellant no.1 poured kerosene over her and set her on fire while her husband i.e. appellant no.2

Neelesh Rajak was catching hold of her.

(iv) The dying declaration further discloses illicit relationship of appellant no.2 with wife of one Laxminarayan Dheemar as the motive. The deceased

subsequently died on 27.03.2008.

(v) The appellant no. 2 Neelesh(husband of the deceased) in the incident sustained burn injuries and was brought to the hospital by his mother where

his dying declaration D-2 was recorded on 22.03.2008 at about 5:45 p.m., after certifying him to be irritable, but conscious. Appellant no.2 after being

clinically examined was found to have suffered superficial deep burns over neck, upper part of chest, both upper limbs, lower abdomen and with some

patches of burn injury present over different parts of the body, especially in the lower limbs. The burn injuries were opined to be inflicted due to dry

heat and duration of injury to be within 12 hours of examination.

(vi) Investigation in the matter was conducted and necessary formalities therein were completed. Chargsheet was filed. After committal of the case to

the Court of Sessions, charges were framed u/S 302 read with Sec 34 IPC against both the appellants. The appellants abjured guilt. The defence

projected by the appellants was that they were not present at the scene of crime and on the day of incident were in the village playing holi when they

were informed about the incident.

(vii) After death of the deceased, post-mortem was conducted. The reported in that regard Ex. P-7 dated 28.03.2008 disclose the following anti-

mortem injuries:

• Scalp hairs singed, eyebrows, eyelashes, axilliary hair and pubic hair burnt.

• A wound of vensection present at the medial aspect of right ankle with four stitches with placement of Ryle's tube.

• IIº and IIIº anti-mortem burn present over following parts of the body:

Scalp at lateral and posterior aspects, on lower part, case, neck, trunk, genitals, both upper limbs except palms and both lower limbs except soles.

Vuvla swollen and having boils containing straw colour fluid. (Whole body burn except scalp on vertex, palms and soles).

• The autopsy surgeon Dr.Nikhil Agrawal PW-9 opined death due to cardio-respiratory failure, as a result of burning and its complications.

4.1 The prosecution supported its case by producing 12 prosecution witnesses namely Santo Batham PW-1, Dr. Sacchanand Milwar PW-2, Kaptan S.

Raje PW-3, Gobbin Rajak PW-4, Prakash Rajak PW-5, Shimla Bai PW-6, Rohit Diwakar PW-7, Dr. Prashant Raj Pipariya PW-8 , Dr. Nikhil

Agarwal PW-9, Ram Gopal PW-10, Neeraj Pandey PW-11 and Abhimesh Dwivedi PW-12 while the defence produced three witnesses namely

Leela Bai DW-1, Hajarilal Kotiya DW-2 and Ram Bhaj Batham DW-3 .

Learned trial Judge after marshalling the evidence on record returned finding of guilt and convicted and sentenced both the appellants as detailed

supra.

CONTENTIONS

Learned counsel for the appellants has raised the following grounds in support of his contentions:

(i) Learned counsel for the appellants attacking the dying declaration Ex. P-4 submits that the same is not in question and answer form. It is submitted

that there is no certification on Ex. P-4 that the dying declaration was read over to the deceased after being written and what was the basis of arriving

at the satisfaction by the doctor that the deceased was capable to give dying declaration.

(ii) It is further submitted that husband of the deceased, appellant no.2 sustained 35% burn injuries on different parts of his body which indicates that

he had tried to save the deceased from being burnt which is further evident from Ex. D-3, dying declaration of appellant no.2 â€" which was recorded

by the same Additional Tehsildar after certification by the same doctor, who had recorded and certified the dying declaration of the deceased. The

appellant no.2 in his statement Ex. D-3 which was though recorded as dying declaration, but could not assume the status of a dying declaration since

the appellant no.2 survived, disclosed that on going inside his house after having food, appellant no.2. saw that the saree of his wife had caught fire

and therefore the appellant no.2 rushed to extinguish the fire which resulted in sustenance of burn injuries to the extent of 30-35%.

(iii) Learned counsel for the appellant further submits that lodging of FIR was delayed by two days.

(iv) It is also submitted that the MLC Ex. P-3 of the deceased disclosed on examination by the doctor Dr. S.N. Bhilwar that body was smelling of

kerosene oil whereas the dying declaration Ex. P-7 does not disclose any such smell coming from the body. It is further submitted that the MLC Ex.

P-3 of the deceased opined that burn injuries were due to dry heat and similar testimony was given by PW-2 Dr. Sachanand Milwar who had certified

the deceased to be in conscious state of mind at the time of giving dying declaration.

(v) It is further submitted that no requisition is brought on record for calling the Additional Tehsildar to record the dying declaration.

(vi) It is also submitted by pointing out to para 7 of the testimony of PW-3 Kaptan S. Raje, Additional Tehsildar who recorded the dying declaration

that the certification of the deceased being in a fit and conscious state of mind was made by the concerned doctor not before, but after the said

Executive Magistrate had recorded the dying declaration and therefore it is submitted that such certification has no meaning in the eyes of law.

(vii) It is also submitted that there is a marked contradiction between the testimonies of PW-2 Dr. Sachanand Milwar and PW-8 Dr. Prashant Raj

Pipariya. PW2 Dr Sachanand Milwar on one hand gave the certification on the dying declaration that the deceased was in conscious and fit state of

mind to give dying declaration, while on the other hand PW-8 Dr. Prashant Raj Pipariya who had treated the deceased at the JA Group of Hospital,

Gwalior where the deceased was admitted in the night of 22.03.2008 till her death on 27.03.2008, testified to the extent that PW-8 categorically stating

that right through the treatment when the deceased was alive, she was unconscious and never regained consciousness and therefore in this factual

background, it is submitted that recording of dying declaration was impossible and thus a doubt is cast at the very existence of dying declaration by

terming it to be a manufactured document to embellish and strengthen the prosecution story, which was otherwise untenable.

(viii) Monu, the brother of the deceased who brought her in burnt state to the hospital for treatment, was not examined.

(ix) PW-4, testified that Hazarilal DW-2 had informed PW-4(father of the deceased) about the incident on 22.03.2008 at 4:00 p.m., whereas DW-2

Hazarilal testified before the Court by denying having gone and told PW-4 about happening of the incident.

ANALYSIS & FINDINGS

This Court is faced with the challenging task of adjudicating about the truthfulness of the contents of implicative dying declaration left behind by the

deceased vide P-4 in the face of the exculpatory statement made by the appellant no. 2 in his statement D-3 which was recorded as a dying

declaration, but could not attained that status due to survival of appellant no.2

(i) A close scrutiny of dying declaration Ex. P-4 reveals that though the same has not been recorded in question and answer form, but the Executive

Magistrate who is the scribe has mentioned the date, time and place of recording along with the name, husband's name, age, residence and caste of

the deceased. The language used in the dying declaration appears to be reproduction of the words spoken by the deceased and there is nothing to

indicate that the terminology used therein is suitably modified by the scribe. The necessary certification of the doctor PW-2 Dr. Sachanand Milwar is

contained in the dying declaration to the following effect: Patient â€" conscious, but irritable.

She is able to give her statement.

At the end of the dying declaration, the following endorsement has been made by the said Dr. PW â€" .

Clinical examination â€" Smt. Reena W/o Nilesh Rajawat

â€" Illegible

â€" Patient is fully conscious.

(ii) The other contention of appellant no.2 in particular is that he sustained 30-35% burn in his attempt to save the life of his wife as per his statement

D-3 which was recorded as a dying declaration at that relevant point of time. The said Ex. D-3 when read alongwith Ex. D-2 MLC of the appellant

no.2, husband of the deceased reveals that the extent of burns were about 30-35% on the body of the appellant no.2 and the said statement is said to

be recorded on 22.03.2008 at 5:45 p.m. The said statement is also recorded by the same scribe and has been certified by the same doctor, who had

recorded and certified the dying declaration Ex. P-4. The appellant no.2 in Ex. D-3 categorized the incident to be an accident by stating that on going

inside the house, he saw that the saree of his wife had caught fire and therefore he tries to extinguish the fire which led to the appellant no.2 sustaining

burn injuries. Pertinently, the said dying declaration Ex. D-3 of the appellant no.2 was recorded between 6:10 to 6:25 p.m. as per the endorsement

contained there on, which is immediately after the recording of dying declaration Ex. P-4 which was recorded between 6:05 to 6:10 p.m. Since there is

evidence on record that relatives of appellant no.2 and as well as deceased were in the hospital where the dying declarations were being recorded, it

can safely be presumed that the fact of the deceased having given an implicative dying declaration at 6:20 p.m. on 22.03.2008 came to the knowledge

of the appellant no.2 at the time when he gave his so called dying declaration Ex. D-3 at 6:20 p.m. thereby impelling him to given an exculpatory

version of the incident in Ex. D-3.

(ii)a. From the above, it is evident that the only certification which the said dying declaration is not comprised of is that the statement after being

recorded was read over to the deceased. Apart from that the fact of deceased being conscious, but irritable and that she was fully conscious during

recording of the statement, is very much contained in the dying declaration. The non-recording of endorsement by the scribe, PW-4 that the statement

after being recorded was read over to the deceased, in the considered opinion of this Court does not erode the probative value of the dying

declaration. This is so, since PW-8 Dr. Prashant Raj Pipariya has testified that the deceased during her treatment from 22.03.2008 till 27.03.2008 was

unconscious and there was no improvement in her condition during the treatment and that she was not in a position to speak. In view of the said

testimony, it is possible that after giving the dying declaration, the deceased may have become unconscious.

(iii) Another contention of delayed recording of FIR by two days, on 24.03.2008 at 5:35 hrs as against the date and time of the incident being

22.03.2008 at 5:30 p.m., this Court considering the gravity of the offence and the fact that police personnel was ensuring proper treatment and

recording of dying declaration of the deceased and as well as the injured appellant no.2, delay if any cannot be termed as inordinate and therefore is

not fatal to the prosecution story.

(iv) Another important aspect brought to the fore by learned counsel for the appellants is that the medical opinion rendered by the experts in the case

was that burn injuries were caused by dry fire. The first examination of the deceased was conducted by PW-2 Dr. Sacchanand Milwar , but after

recording the introductory entries in the MLC, the doctor recorded an observation that the deceased was irritable, but conscious and the body was

smelling of kerosene. The pulse was opined to be just palpable and the blood pressure was unrecorded and while concluding, the opinion wrote in the

MLC that injuries may be caused by “dry fire......â€​.

(iv)a The above said observation that body was smelling of kerosene oil when compared with the tentative opinion that the injures may be caused by

dry heat appears to be contradictory on first blush. Importantly, the dying declaration Ex. P-7 neither mentioned about the body smelling of kerosene

oil nor the cause of injury being dry fire. Opinion expressed in the dying declaration regarding cause of death is cardio-respiratory failure owing to burn

and its complications. It is possible that by the time, the post-mortem was conducted, the smell of kerosene had vanished on account of elapse of

nearly 4-5 days between the incident and conduction of post-mortem. However, the contradictory opinion of the PW-2 Dr. Sacchanand Milwar who

prepared the MLC by stating that smell of kerosene oil was there, but yet recorded that injuries are due to dry heat needs to be analyzed further by

entering into a deeper probe into the material and evidence available on record. The testimony of PW-2 Dr. Sacchaand Milwar does not reveal that

the said witness was confronted in regard to the aspect of contradiction as mentioned above. PW-2 was neither asked any question regarding the

cause of burn by dry fire as opined by him in the MLC nor about the observation that the body of the injured deceased was oozing kerosene smell.

The said aspect certainly creates some doubt, but the same cannot be read in favour of the appellants in view of the reliability of dying declaration Ex.

P-4 of the deceased having been established.

(v) The other ground of learned counsel for the appellant that no requisition was made to the Additional Tehsildar to record the dying declaration is far

from the reality, in view of the testimony of PW-3, the Executive Magistrate that he received information from the Police Chowki Aspatal, Shivpuri

for visiting the District Hospital for recording of dying declaration of the deceased. PW-3 further testifies that intimation in that regard was received

from the police at about 5:30 p.m. in the evening on 22.03.2008. PW-3 further testifies that when dying declaration was recorded there was no police

personnel present. Thus, there is no substance in the contention of learned counsel for the appellants as regards absence of requisition to Executive

Magistrate.

(vi) As regards the other contention of learned counsel for the appellant that PW-2 in para 13 of his testimony has stated that the dying declaration

was not recorded in the presence of PW-2, but his signature were obtained after recording of the statement, it is seen that the said contention of

learned counsel for the appellants deserves to be rejected at the very outset as the contents of para 13 of deposition of PW-2 Dr. Sacchanad Milwar

relates to the dying declaration of the appellant no.2 and does not relate to dying declaration left behind by the deceased.

(vi)a. The contentions of learned counsel for the appellants that the basis on which the certification of deceased being fully conscious during recording

of her statement, has not been recorded is not of much significance. Merely because PW-2 Dr. Sacchanand Milwar failed to have recorded the blood

pressure, heart rate and other such symptoms to arrive at the conclusion that the deceased was conscious while giving her statement, does not render

the dying declaration unreliable. The fact that the said PW-2 has reiterated in his testimony that the certification was given after examining the

deceased to be fit to give statement is good enough to render the certification trustworthy. Thus, the said contention of learned counsel for the

appellants in regard to the dying declaration is of no avail.

(vi)b. In view of the above, the necessary inference that can be drawn is that the dying declaration Ex. D-3 of the appellant no.2 does not give the

true picture of the incident while the implicative dying declaration of the deceased Ex. P-3 having been lawfully recorded in accordance with law and

inspiring confidence has to prevail upon Ex. D-3.

(vi)c. At this juncture, it would be appropriate to reproduce a few relevant extracts of the Apex Court decisions on the issue of probative value of a

dying declaration.

In the case of Smt. Shakuntala Vs. State of Haryana AIR 2007 SC 2709

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 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. 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 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 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 deceased was in a fit mental condition to make the dying declaration look 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 are 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 declaration 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)]

(vi)d. Moreso, in a recent decision of the Apex Court in the case of Gulzarilal Vs. State of Haryana reported in (2016)4 SCC 583, the Apex Court

while analyzing its earlier decisions right from 1962 to 2011 on the subject of reliability of dying declaration has inter-alia laid down that a dying

declaration having been recorded even in the absence of certification by the doctor can be relied upon because certification is essentially a rule of

caution and not of law.

We find no infirmities with the statements made by the deceased and recorded by the Head Constable Manphool Singh (PW-7). A valid dying

declaration may be made without obtaining a certificate of fitness of the declarant by a medical officer. The law regarding the same is well-settled by

this Court in the decision of Laxman v. State of Maharashtra[6], wherein this Court observed thus:

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. 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 the declarant was

fit to make the statement even without examination by the 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 the voluntary and truthful nature of the declaration can

be established otherwise.

Further, clarity on the issue may be established by the judgment of this Court in the case of Paras Yadav & Ors. v. State of Bihar[7], wherein this

Court addressed the question regarding the dying declaration that was not recorded by the doctor and where the doctor had not been examined to say

that the injured was fit to give the statement. It has been held by this Court as under :

8....In such a situation, the lapse on the part of the Investigating Officer should not be taken in favour of the accused, may be that such lapse is

committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out

whether the said evidence is reliable or not.

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 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.

(vii) When testing the probative value of the dying declaration Ex. P-4 on the anvil of the law laid down by the Apex Court (supra), it is seen that there

is nothing on record to reflect that the dying declaration was tutored or a product of prompting or imagination. PW-2 Dr. Sacchanad Milwar in regard

to the certification of the deceased being conscious during the recording of dying declaration, has testified before the Court that his opinion as regards

the mental and physical state of the deceased was obtained by the Executive Magistrate before the recording and as well as after recording of dying

declaration by the Executive Maigstrate PW-3 Kaptan S. Raje. PW-2 further testifies that the deceased was in a fit state to give the dying

declaration. The certification in the dying declaration thus gets corroborated by the testimony of PW-2 and the certification and thus can be relied

upon.

(viii) The contention of learned counsel for the appellants as regards non-examination of Monu, brother of the deceased who brought the deceased to

the hospital, it is seen that the prosecution ought to have examined Monu, but the fact remains that the incident of the deceased getting burnt on the

date and time as alleged is proved by the so called dying declaration Ex. D-2 of the appellant no.2. Though this dying declaration Ex. D-2 recorded of

the appellant no.2 did not actually mature into dying declaration and remained a statement u/S 161 Cr.P.C., but the same corroborates the incident of

the deceased having suffered burn injuries. Who brought the deceased to the hospital renders is inconsequential in view of the above and the fact of

the incident having been proved to have taken place.

CONCLUSION

(i) From the above discussion what comes out loud and clear is that dying declaration Ex. P-4 left behind by the deceased is a material piece of

evidence which cannot be discredited merely on the basis of minor infirmities pointed out by the learned counsel for appellants. Dying declaration was

neither found to be tutored nor a product of imagination nor a manufactured document. The necessary medical certification duly supported by the

testimony of the concerned doctor renders the dying declaration trustworthy and therefore can sustain the conviction against the appellants with the

assistance of surrounding corroborative pieces of evidence.

(ii) From the conspectus of discussion and analysis of the evidence and findings on record, this Court does not deem it appropriate to interfere with the

conviction rendered and sentence awarded against both the appellants who squarely stand implicated by the dying declaration Ex. P-4 left behind by

the deceased, which is found to be a reliable piece of evidence duly corroborated by circumstantial evidence on record.

The conviction u/S 302 IPC rendered by the learned trial Judge against both the appellants and awarding them life sentence is upheld alongwith the

fine imposed.

Consequently, the appeal is hereby dismissed.