Sukhpal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—On 10th of December, 2006 Nandkishore (PW-16), Superintendent of Police, Ajmer, as Probationer Superintendent of Police was posted at Police Station, Masuda. On that day, at 10:35 A.M. he received an information from Dr. Hemant Chauhan, Medical Officer posted at A.K. Hospital, Beawar that one Smt. Anju wife of Sukhpal, present appellant, resident of Dewas, in a burnt condition was admitted in the Burns Ward of the hospital. Nandkishore (PW-16) entered this information in the ''rojnamcha'' (Daily Diary Register) being report bearing No. 320, copy of which has been placed on record as Exhibit-P/24. Thereafter, in a Government Jeep, along with A.S.I. Bheemraj, he reached at A.K. Hospital, Beawar. Nandkishore (PW-16) sought opinion of the Medical Jurist regarding fitness of Smt. Anju to record her statement. The Medical Officer, Dr. Sanjana (PW-20) vide Exhibit-P/27 gave opinion that the patient was fit to give statement. Thereupon, Nandkishore (PW-16) recorded statement of injured Smt. Anju, who was lying admitted in the Burns Ward at A.K. Hospital, Beawar, vide Exhibit-P/8.

Thereafter, the Investigating Officer requisitioned the services of Additional District Magistrate, Beawar vide Exhibit-P/25. Relying upon the opinion (Exhibit-P/27) given by Dr. Sanjana (PW-20), Medical Officer regarding fitness of the patient Smt. Anju, A. Sriniwasan (PW-19), who was then posted as Additional District Magistrate, Beawar, recorded the dying declaration of Smt. Anju, vide Exhibit-D/4.

Thus, the prosecution case rests upon two dying declarations, one dying declaration, Exhibit-P/8 recorded by the Investigating Officer, on the basis of which First Information Report, (Exhibit-P/28) was registered, and another dying declaration, Exhibit-D/4 recorded by the Additional District Magistrate, A. Sriniwasan (PW-19).

The Court of Additional District and Sessions Judge (Fast Track) No. 1, Beawar, District Ajmer had charged the appellant for offences punishable under Sections 498-A and 302 of Indian Penal Code.

The principal charge under Section 302 of Indian Penal Code framed against appellant stated that in the morning of 10th of December, 2006 after giving beating to his wife, the present appellant poured kerosene oil upon her and set her on fire, due to which she received 100% burn injuries and died.

The appellant, Sukhpal denied the charges and claimed trial.

The Court of Additional District and Sessions Judge (Fast Track) No. 1, Beawar, vide its impugned judgment dated 11.04.2011 held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment and to pay a fine of Rs. 5000/-. In default thereof to further undergo one year additional imprisonment.

The appellant has instituted the present appeal in order to assail the impugned judgment rendered by the trial Court, whereby he was convicted and sentenced, as mentioned herein above.

Before we deal with the dying declaration, it will be apposite for us to notice the gist of the evidence.

Omprakash (PW-3), the father of deceased Smt. Anju, in the Court, stated that he is a father of four daughters and one son. Anju was his second daughter. Four years before the occurrence, he had married his daughter with present appellant Sukhpal s/o Chaturbhuj. Her ''muklawa ceremony'' had taken 1/11/2 years ago. Her husband was doing agricultural work and was also insurance agent. Her daughter had not given birth to any child. Her father-in-law was having Poultry Farm. Her daughter came to visit her parental house and informed that due to bird flu, her father-in-law had suffered loss and, therefore, he required certain amounts to keep his business running. Upon this, he informed his daughter that within two/four months, he will arrange some amount and will give to her in-laws. On 09.12.2006, he received a telephonic call from his daughter Anju, wherein she informed that her husband Sukhpal had given her beating on the ground that she had not filled water in the Poultry Farm. She further stated that she could not hear the call given by her husband due to loud volume of the television. Upon this, this witness gave a telephonic call to his brother, Jagdish to go to the house of Anju to sort out the matter. Jagdish had given a call to the father of appellant, and informed his brother Om Prakash (PW-3) that the matter has been resolved. This witness (Om Prakash) further stated that on 10.12.2006, he received a telephonic call from Chaturbhuj, the father of appellant. The said phone was taken by his wife. She was informed that they were bringing Anju to the hospital. After ten minutes, another telephone came, and Chaturbhuj, the father of appellant informed that she had received burns injuries. Chaturbhuj had asked him to reach to the hospital. Upon this, the witness (PW-3), along with Jagdish, Lata and Kesar reached at Beawar hospital. In the hospital, Anju informed her parents that in the night and morning, her husband had given beating. Thereafter, he had poured kerosene oil upon her and set her on fire. This witness further stated that his daughter was beaten for the reason that the father had not given money demanded by the in-laws.

Smt. Lata (PW-4), the mother, Smt. Kesar (PW-5), the aunt, Jagdish (PW-6), the uncle and Gordhan (PW-7), another uncle have corroborated the testimony of Omprakash (PW-3), the father of deceased regarding conduct of the accused, qua demand of dowry, beating caused to deceased and the information relayed by the deceased that accused had poured kerosene oil upon her and set her on fire.

Having broadly noted the evidence of the relatives, we will reproduce here the true translation of the statement (Exhibit-P/8) made by Smt. Anju before the Investigating Officer Nandkishore (PW-16).

"Statement of Smt. Anju wife of Sukhpal, by caste Jat, aged twenty-two years, resident of Dewas, Police Station, Masuda.

Stated that I was married four years ago with Sukhpal S/o Chaturbhuj, by caste Jat, resident of Devas. My parents reside at Village Gadhi-Thoriyan, Police Station Beawar Sadar. Name of my father is Omprakash. We are five brothers and sister. My parents are alive. I am staying in my matrimonial home. My matrimonial house consist of two stories. Yesterday at about 06:00/07:00 P.M. I was encompassing and arranging the clothes, then my husband Sukhpal called me from the ground floor. Due to volume of the television, I could not hear his voice. Upon this, Sukhpal came up stairs, unnecessarily used harsh words and gave beating to me. In the morning at 08:00 A.M. he again gave beating to me, poured kerosene oil upon me and had set me on fire. At that time, alone Sukhpal was present in the house. Others were not present. Later-on, her father-in-law, Chaturbhuj came and saved me. My father-in-law got me admitted to the hospital. This occurrence had taken place due to estranged relations between me and my husband. My ''muklawa ceremony'' had taken one year ago and from last one year, I had come to my in-laws house. My husband had put me on fire in order to kill me.

R.T.I. Smt. Anju"

On the basis of above statement, a formal First Information Report (Exhibit-P/28) bearing No. 127/2006 was registered at Police Station Masuda, District Ajmer.

As stated earlier, the Investigating Officer had called A. Sriniwasan (PW-19), who was then posted as Additional District Magistrate, Beawar. He had recorded dying declaration (Exhibit-D/4) and the same when translated into English reads as under:--

"On 10.12.2006, I Anju, aged twenty-two years at 06:00 P.M. had returned to the house from the well. In the night, my husband called me, I could not hear his call. He came up stairs, and in the night of 09.12.2006 at 08:00 P.M. he gave merciless beating to me. In the morning of 10th of December, 2006 he also gave beating to me, poured kerosene oil upon me and had set me on fire. Previously also, number of occasions, he had given beating to me. Name of my husband is Sukhpal. I was married in Village Dewas. I belong to Beawar.

Thumb impression. Anju

R.O.& A.C. District Magistrate, Masuda, Ajmer."

Dr. Sanjana (PW-20) stated that on 10.12.2006 she was posted as Medical Officer at A.K. Hospital, Beawar. She had given opinion (Exhibit-P/27) regarding fitness of Anju wife of Sukhpal to give statement. At that time, Anju was admitted in the hospital. During treatment, she had examined patient at 11:50 A.M. At that time, patient was having 90-100% burns. The patient was completely conscious, but restless. Patient was replying to the questions, which were asked to her. Exhibit-D/5 contain signatures of Dr. Sanjana (PW-20). This witness further stated that Smt. Anju, during admission in the hospital on 10.12.2006 at 05:30 P.M. expired in the hospital.

On 11.12.2006 at 09:30 AM. a Board of Doctors consisting of Dr. K.K. Chauhan (PW-10), Dr. Dilip Chaudhari (PW-11) and Dr. Sushila Jain (PW-12) had conducted autopsy on the dead-body of Anju, and proved Post Mortem Report (Exhibit-P/11).

In the Post Mortem Report (Exhibit-P/11), the above said three Doctors had found superficial to deep burns all over body, except at some lower part of body and right leg. Anju had suffered 95% burns. In the opinion of the Board of Doctors, cause of death was shock, due to extensive burns.

In his testimony, Dr. K.K. Chauhan (PW-10) stated that deceased had suffered dry heat burns due to fire. This witness further stated that on the bed head ticket (Exhibit-D/5), the time of death was noted as 05:05 P.M. and they noticed that she had suffered 100% burns. This witness further stated that on the bed-head ticket (Exhibit-D/5), nothing was noted that between 11:50 AM. to 04:20 P.M., during her admission in the hospital, condition of the deceased had deteriorated. .

Dr. Dilip Chaudhary (PW-11) stated that deceased had suffered shock due to dehydration.

We need not notice various other witnesses, who had participated in the investigation and the witness of arrest of accused or recovery of kerosene can from the spot.

Suffice it to say, prosecution, in all, had examined twenty-one witnesses and have placed on record as many as forty documents (Exhibit-P/1 to Exhibit-P/40).

After prosecution closed its evidence, the statement of accused was recorded under Section 313 of Code of Criminal Procedure, 1973, all incriminating evidence was put to him. He denied the same and raised a plea that he is innocent and he has been falsely implicated.

In the written statement recorded under Section 313 Cr.P.C., accused stated that he had left house on 09.12.2006 in connection with the business of insurance agent. The accused further stated that his father-in-law, Om Prakash was having illicit relations with one Smt. Lata and had turned out Smt. Shanti, the mother of deceased and, therefore, she had committed suicide fed up with the conduct of her step-mother Smt. Lata.

In defence, accused had examined three witnesses.

In the Court, Sanwarmal Jat (DW-1) stated that on 09.12.2006 accused had visited him and he had paid installment of the insurance premium to the accused.

Kalyanmal (DW-2) stated that on 10.12.2006 he had gone to visit Chaturbhuj. This witness stated that deceased had admitted that she had committed mistake. Lastly, this witness stated that the deceased had committed suicide.

Chaturbhuj (DW-3) also deposed, that fed up with conduct of step-mother, deceased had committed suicide as he admitted that mistake was committed by her.

Having noted the evidence of the prosecution and defence, we shall deal with the arguments raised by the learned counsel appearing for the accused-appellant and the learned Public Prosecutor for the State.

Mr. Arvind Kumar Gupta, the learned counsel appearing for the accused-appellant, has submitted that the dying declarations cannot be relied upon as the deceased was tutored.

Learned counsel has referred to cross-examination of Nandkishore (PW-16), who stated that before he reached hospital, relatives of the deceased had arrived at.

Learned counsel further admitted that before taking statement of the deceased, his uncle and her mother were present.

To fortify the above submissions, counsel appearing for the accused-appellant, has referred to cross-examination of Jagdish (PW-6), uncle of the deceased, who in cross-examination, stated that S.D.M. had taken statement of deceased Smt. Anju at 12:00 or 01:00 P.M. and he admitted that he had appended signatures on statement recorded by the S.D.M. This witness further stated that on the dying declaration (Exhibit-D/4), his signatures are not there.

We are not impressed by the arguments raised by the learned counsel appearing for the accused-appellant.

Merely because the relatives of the deceased had arrived at the spot, we cannot draw inference that the deceased was tutored. Except to point out mere presence of the relatives, no basis has been laid to say that the relatives were having consultations with the deceased or they prompted her or were present during the course of recording of the dying declaration.

To assail the dying declaration (Exhibit-D/4), counsel appearing for the accused-appellant, has further submitted that it has come in the evidence of A. Sriniwasan (PW-19) that he was not conversant with the Hindi language.

This argument again cannot be accepted.

A. Sriniwasan (PW-19) stated that he can read Hindi. He further stated that the statement (Exhibit-D/4) was recorded by the person standing along with him, as per dictation given by the deceased. This witness further stated that before recording dying declaration, he satisfied himself regarding condition of the deceased. This witness denied the suggestion that the deceased could not make statement because she was 100% burnt. This witness stated that the person, who recorded statement of the deceased was not relative of the deceased, but was his companion. This witness stated that the deceased had given reply in Hindi. However, this witness further stated that

To controvert the above arguments, the learned Public Prosecutor appearing for the State, has submitted that A. Sriniwasan (PW-19) was a young I.A.S. Officer and he is not interested in the prosecution, but is an independent person.

Learned State Counsel further submitted that the witness has specifically denied the suggestion that he cannot understand Hindi.

In the present case, the first dying declaration (Exhibit-D/8) was recorded by Nandkishore (PW-16) newly appointed Superintendent of Police, posted at Police Station, Beawar, as Probationer. Another dying declaration (Exhibit-D/4) has been again recorded by young Officer, who was then posted as Additional District Magistrate, Beawar. Both are most independent witnesses.

Therefore, to us, both the dying declarations (Exhibit-P/8 and Exhibit-D/4) aspire confidence. Dr. Sanjana (PW-20), in categoric terms has also stated that the deceased was fit to make statement.

The prosecution has failed to assail the opinion of Dr. Sanjana (PW-20) given by her regarding fitness of Smt. Anju to make dying declaration.

Our opinion to place implicit reliance upon Dying Declarations is further fortified by observations made by five-judge Bench of the Hon''ble Apex Court in the case of Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 : (2002) CriLJ 4095 : (2002) 4 Crimes 42 : (2002) 6 JT 313 : (2002) 6 SCALE 135 : (2002) 5 SCALE 418 : (2002) 6 SCC 710 : (2002) 1 SCR 697 Supp : (2002) 2 UJ 1363 : (2002) AIRSCW 3479 : (2002) 5 Supreme 557 , wherein it was held as under:--

"4. "Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander and Others Vs. State of Punjab, (1998) 8 JT 211 : (1998) 9 SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

The court also in the aforesaid case relied upon the decision of this court in Harjit Kaur Vs. State of Punjab, AIR 1999 SC 2571 : (1999) CriLJ 4055 : (1998) 3 Crimes 57 : (1999) 2 DMC 169 : (1999) 5 JT 317 : (1999) 4 SCALE 447 : (1999) 4 SCALE 417 : (1999) 6 SCC 545 : (1999) AIRSCW 2751 : (1999) 6 Supreme 390 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 case."

We are of the view that in the present case, dying declarations, without any corroboration can be safely relied.

Be that as it may, in the present case, dying declaration has been duly corroborated by the testimony of relatives of the deceased and the medical evidence.

Therefore, we reject the arguments that the deceased was tutored or dying declaration (Exhibit-D/4) is to be discarded because Additional District Magistrate was not well conversant with the Hindi language.

Having rejected both the arguments, we are of the view that the defence evidence has been concocted one and cannot be accepted prima-facie.

Before or after the death of deceased, defence version had not seen the light of the day, no document has been produced on record to say that the Investigating Officer or any Magistrate or any superior authority was informed that the deceased had committed suicide.

It shall be apposite for us to reproduce here observations made by Hon''ble Apex Court in Smt. Paniben Vs. State of Gujarat, AIR 1992 SC 1817 : (1992) CriLJ 2919 : (1992) 1 Crimes 1180 : (1992) 4 JT 397 : (1992) 1 SCALE 655 : (1992) 2 SCC 474 : (1992) 2 SCR 197 , where for appreciating dying declaration, law has been summed up as under:--

"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 on its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, 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 assailants. 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:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Munnu Raja and Another Vs. The State of Madhya Pradesh, AIR 1976 SC 2199 : (1976) CriLJ 1718 : (1976) 3 SCC 104 : (1976) SCC(Cri) 376 : (1976) 2 SCR 764 : (1976) 8 UJ 154 .

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, AIR 1985 SC 416 : (1986) CriLJ 836 : (1985) 1 Crimes 344 : (1985) 1 SCALE 108 : (1985) 1 SCC 552 : (1985) 2 SCR 621 , Ramawati Devi Vs. State of Bihar, AIR 1983 SC 164 : (1983) CriLJ 221 : (1983) 1 Crimes 637 : (1983) 1 SCALE 1 : (1983) 1 SCC 211 .

(ii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. K. Ramachandra Reddy and Another Vs. The Public Prosecutor, AIR 1976 SC 1994 : (1976) CriLJ 1548 : (1976) 3 SCC 618 : (1976) SCC(Cri) 473 : (1976) SCR 542 Supp .

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg and Others Vs. State of Madhya Pradesh, AIR 1974 SC 332 : (1974) CriLJ 361 : (1974) 4 SCC 264 : (1974) SCC(Cri) 426 : (1974) 6 UJ 68 .

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh, AIR 1982 SC 1021 : (1982) CriLJ 986 : (1981) SCC 25 Supp : (1981) SCC(Cri) 645 .

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath and Others Vs. State of Uttar Pradesh, (1981) 1 SCALE 527 : (1981) 2 SCC 654 : (1981) SCC(Cri) 581 : (1981) 3 SCR 195 .

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. State of Maharashtra Vs. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617 : (1981) CriLJ 9 : (1981) SCC(Cri) 364 .

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769).

(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 has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P., 1988 Supp SCC 152).

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. Vs. Madan Mohan and Others, AIR 1989 SC 1519 : (1989) CriLJ 1485 : (1989) 2 Crimes 467 : (1989) 2 JT 158 : (1989) 1 SCALE 1087 : (1989) 3 SCC 390 ."

Taking totality of circumstances, we are of the view that implicit reliance can be placed upon the dying declarations (Exhibit-P/8 and Exhibit-D/4), they are not contradictory, rather supplement each other.

Therefore, we find no merit in the present appeal and the same is, hereby, dismissed by affirming the conviction and sentence recorded by the trial Court.