Smt. Kunthi Bai vs State of Madhya Pradesh

Shri Gangele, J.—This appeal has been preferred by the appellant u/s 374 of Code of Criminal Procedure against the judgment of conviction and sentence dated 02/04/2012, passed by the learned Sessions Judge, Bhind in Sessions Trial No. 83/2009. The appellant was charged for an offence under Sections 498A, 304B and in alternate, an offence u/s 302 of IPC. The learned trial Court found the charge u/s 302 of IPC proved against the appellant and convicted her and awarded the sentence of life imprisonment.

The Community Health Centre, Raun sent an information to the police station Raun, District Bhind that Vinita W/o. Prem Singh was admitted in the hospital and she had burn injuries. On the basis of aforesaid information, the police recorded information at Sanha No. 969, dated 29052007 and thereafter Head Constable Shivraj Singh (P.W.1) recorded statement of the deceased in the hospital and the Tahsildar, Raun was also summoned to record the dying declaration of the deceased. In the aforesaid dying declaration, the deceased deposed that her mother-in-law Kunthi Bai and jethani Mithlesh had poured kerosene over her body and burnt her. On the basis of the aforesaid statement, the police registered an offence vide Crime No. 70/2007 u/s 307/34 of IPC. Subsequently, the deceased was died. Hence, an offence was registered under Sections 498A, 304B of IPC and later on Section 302 of IPC was added. Then, investigation was conducted. After completion of investigation, the police filed the chargesheet. The learned trial Court framed the charges against the appellant for the offence punishable under Sections 498A, 304B and in the alternate, Section 302 of IPC. After recording the evidence, the learned trial Court held the appellant guilty of an offence punishable u/s 302 of IPC and awarded the sentence of life imprisonment.

The learned counsel for the appellant has submitted that all the witnesses of the case did not support the story of the prosecution and the conviction of the appellant is based on the basis of dying declaration of the deceased, which is not in accordance with law. He further submitted that as per evidence of Dr. Jitendra Shrivastava (P.W.7), the deceased was died due to dry burn injuries. Learned counsel for the appellant further argued that nowhere the prosecution did produce any evidence to show that there was smell of kerosene from the body of the deceased after death or any article which was having smell of kerosene, had been recovered from the spot. Hence, the conviction of appellant on the basis of dying declaration of the deceased, is against the law.

In support of his contentions, learned counsel appearing on behalf of the appellant, has relied on the judgment of Hon''ble Supreme Court in the case of Maniram Vs. State of M.P., .

Contrary to this, learned Public Prosecutor appearing on behalf of the respondentState, has submitted that in accordance with dying declaration given by the deceased to the Tahsildar, an offence against the appellant is proved beyond reasonable doubt. Hence, the trial Court has rightly passed the impugned judgment of conviction and sentence.

It is an admitted fact the conviction of the appellant is based on the basis of dying declaration (Ex. P/8) recorded by the Tahsildar. Ex. P.15 is a statement given by the deceased u/s 161 of Code of Criminal Procedure to the police. In the dying declaration (Ex. P/8) which was recorded by the Tahsildar, Raun the dying declaration has not been recorded in the question and answer form. Neither there is any certificate of the doctor to the effect that the deceased had in a position to give the dying declaration. It is in the form of statement in which the deceased stated that there was a quarrel between the deceased and her mother-in-law and jethani and thereafter, jethani and mother-in-law of the deceased poured kerosene over her body and also forcefully choked his mouth by cotton clothes and thereafter, burnt her.

Tahsildar-Mohan Singh (P.W.5) in his statement deposed that after receiving information from Station House Officer, Raun he reached at Community Health Centre and recorded the dying declaration of Vinita at 8:40 in the morning. Vinita, in her dying declaration, deposed that her mother-in-law Kunthi and jethani Mithlesh had burnt her by pouring kerosene over her body because yesterday, there was a quarrel between them. He further deposed that the deceased was crying and at that time, her mouth was choked by both the accused persons by cotton clothes. He further deposed that he recorded the dying declaration in accordance with statement deposed by Vinita. He admitted in his crossexamination that when he recorded the dying declaration of the deceased there was no doctor present. He did not summon any doctor, neither asked the doctor that whether Vinita was in a position to give any dying declaration. He admitted the fact that he had not recorded the fact that whether Vinita was in a position to give dying declaration neither there is any certificate of the doctor.

Shivraj Singh (P.W.1) in his evidence, deposed that he was posted as Head Constable at Police Station Raun from 20052008. He received an information from the Community Health Centre, Raun on 29052007 to the effect that Vinita W/o. Prem Singh was admitted in the hospital due to burn injuries. On the basis of the aforesaid information, he reached at Community Health Centre and recorded statement of Vinita as Ex. P/15. In the aforesaid statement, Vinita deposed that her mother-in-law and jethani burnt her by pouring kerosene over her body and when she tried to cry, her mouth was choked by inserting cotton clothes in the mouth. He further deposed that he requested the Tahsildar, Raun in recording the dying declaration of Vinita. He, in his crossexamination, admitted the fact that at the time of recording the statement, the condition of Vinita was serious. However, he did not consult any doctor neither he received any certificate from the doctor whether Vinita was in a position to make her statement. He further admitted the fact that at that time, the doctor was not present.

As per merg No. 10/2007 (Ex. P/11), on 29/05/2007 deceased Vinita was referred to Gwalior and she was died on the way.

Father of the deceased, Tullaram (P.W.2), in his evidence, deposed that her daughter was died, however, he had no information that what was the cause of death. He admitted the fact that his daughter was well treated by her in laws and she did not say anything about demand of dowry. Same facts have been deposed by brother of the deceased, Maniram (P.W.3) and mother of the deceased, Ramshree (P.W.4).

The Investigating Officer Vijay Singh Tomar (P.W.6) in his evidence, deposed that he received information about admission of deceased in the hospital and thereafter he handed over the case for investigation to Head Constable Shivraj Singh. The statement of deceased was recorded by the Tahsildar. He further admitted the fact that due to fire the whole house was caught fire and burnt into debris.

Dr. Jitendra Shrivastava (P.W.7) who conducted the post mortem, in his evidence, deposed that the deceased was died due to shock caused by dry burn. He further deposed that he had examined the dead body of the deceased.

The inquest report is Ex. P/1. From the aforesaid inquest report, it is clear that no fact has been mentioned in this report that there was smell of kerosene coming out from the body of the deceased. Neither there is any evidence that from the clothes of deceased or body of the deceased smell of kerosene was coming out.

The Hon''ble Supreme Court in the case of Kanti Lal Vs. State of Rajasthan, , has held as under in regard to conviction on the basis of dying declaration:

In Ghurphekan and Others Vs. State of Uttar Pradesh, this Court while dealing with the case, which entirely rested on dying declaration of the deceased held as under:

[i] A dying declaration recorded within a few hours after the incident, when it bore the endorsement of the doctor, that the victim was at that time in "proper sense" to be able to give the statement and where the evidence of the recording magistrate showed no flaw in taking it down, there is no reason to reject it.

[ii] Where the dying declaration had two weaknesses, namely, it did not mention the name of one of the witnesses present at the spot and it did not account for the injuries on the persons of the attacking party, it cannot be rejected on those omissions only, if otherwise it could be shown to be true in other respects, by other satisfactory evidence.

[iii] Where the circumstantial evidence negatived the alternative case set up by the defence and the investigating officer''s evidence about the place of incident, the medical officer''s evidence in support of the prosecution about the manner of the occurrence of the incident, and the explanation of some witnesses for their presence at the spot, are consistent with the dying statement and the circumstantial evidence; the dying declaration possess acceptability in spite of any weaknesses pointed out by the defence.

In Kans Raj Vs. State of Punjab and Others, this Court held that the statement of a person "as to any of the circumstances which resulted in his death" must have some close and proximate relation with the actual occurrence and proximity would depend upon the circumstances of each case for the purpose of admissibility of such statement as dying declaration u/s 32[1] of the Evidence Act, 1872.

In Kamalakar Nandram Bhavsar and Others Vs. State of Maharashtra, , this Court on scrutiny of the evidence on record found that the victim of dowry death/bride burning had suffered burn injuries to the extent of 9495% could not have made dying declaration as stated by the doctor during the crossexamination that a dying declaration was made by the victim when she was in hospital. The alleged dying declaration was admitted in evidence on behest of defence by trial court supportive to the defence of the accused. On the facts of the case, this Court observed that source of production of dying declaration was neither mentioned in the trial court''s judgment nor was there any evidence to prove the said document. In these circumstances, this Court held that the High Court had rightly rejected the said dying declaration.

In the present case, as noticed in the earlier part of the judgment A1 and A3 have not proved on record the source of production of the dying declaration by DW2 who after recording the statement of the deceased was duty bound to hand over the alleged dying declaration under a sealed cover to the prosecuting agency. In this case, the origin and source of the alleged dying declaration produced by DW2 at the time of his examination as a defence witness is highly doubtful and such document cannot be accepted as genuine and truthful document is support of the defence of A1 and A3.

In State (Delhi Administration) Vs. Laxman Kumar and Others, , this Court while dealing a case of bride burning on the basis of dying declaration, held as follow:

A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at that stage of life he is not likely to make a false statement. Ordinarily, a document as valuable as a dying declaration is supposed to be foolproof and is to incorporate the particulars which it is supposed to contain.

Further, it is held that unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the Court. It is also said that if the doctor happened to be present at the time of recording of the dying declaration and he had heard the statement made by the deceased, he would ordinarily endorse that the statement had been made to his hearing and had been recorded in his presence. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor.

In the present case, these basic principles are ignored by DW2 at the time of recording of the alleged dying declaration of the deceased. As noticed above, the doctor has not made any endorsement on the dying declaration to state that it was recorded in his presence and attested by him. The mother of the deceased refused to put her thumbimpression on the said document. Thus, the judgment cited above cannot strength the defence of A1 and A3 that dying declaration Ext.D/4 had been recorded by DW2 by observing the principles laid down in the abovesaid case.

The Hon''ble Supreme Court in the case of Sher Singh and Another Vs. State of Punjab, has further held as under in regard to conviction on the basis of dying declaration:

Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and crossexamination are dispensed with in a case of dying declaration. Since the accused has no power of crossexamination, the court would 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 should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 without there being the doctor''s opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.

From the aforesaid judgments of Hon''ble Supreme Court, it is clear that the conviction can be based on the basis of dying declaration, however, the dying declaration has to be analyzed carefully.

In the present case, the dying declaration has not been recorded in the question and answer form, it is recorded as statement of the deceased. In the dying declaration, there is no mention to the effect that the doctor had certified that the deceased was in a position to give dying declaration. The Tahsildar also admitted the fact that he had not consulted any doctor to verity the fact that whether the deceased was in a position to give dying declaration. It is also an admitted fact that the deceased was died on the same day and her condition was serious.

Dr. Jitendra Shrivastava (P.W.7) in his evidence, deposed that the deceased was died due to shock which was caused by dry burn injuries. Even there is no evidence produced by the prosecution that smell of kerosene had been coming out from the body of the deceased or any article has been seized from the spot by the prosecution to substantiate the fact that kerosene was used.

Contrary to this, Station House Officer Vijay Singh Tomar (P.W.6) in his evidence, deposed that whole house was burnt by fire. Father, mother of the deceased and other witnesses did not support the prosecution story. They deposed that the deceased was well treated by her inlaws and she had cordial relations with her inlaws. Looking to the aforesaid evidence on record and the principle of law laid down by Hon''ble Supreme Court in regard to conviction on the basis of dying declaration, in our opinion, the learned trial Court has committed an error of law in convicting the appellant. Hence, the appeal filed by the appellant is allowed. The appellant is acquitted from the charge levelled against her. The judgment of conviction and sentence dated 02/04/2012 passed by the learned Sessions Judge, Bhind in Sessions Trial No. 83/2009, is hereby set aside. The appellant be released forthwith if she is not required in any criminal case.