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 and the requirement of doctor's endorsement as to mental fitness of deceased is merely a rule of prudence. It has been so ruled by the Apex Court in Vikas & Ors. vs. State of Maharashtra, (2008) 2 SCC 516, while declaring that if the dying declaration is excluded from consideration, it may result in miscarriage of justice inasmuch as in a given case, the victim may be the only eye witness of a serious crime and exclusion of the statement of the declarant will leave the case with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice and so, legislature has accorded a special sanctity to a dying declaration, however with a rider that it should be of such a nature as to inspire full confidence of the Court.1
Delhi High Court
State (Govt. Of Delhi) vs Smt.Sumitra & Ors. on 17 October, 2011
1. In this double murder case, respondents' acquittal is questioned on account of being palpably wrong, manifestly erroneous and demonstratably unsustainable.
2. In the morning of 20.03.1996 Meenu and her infant child, aged about 7 months, had sustained burn injuries in the house of the respondents, who happen to be mother-in- law, brother-in-law (jeth) and sister-in-law (jethani) of Meenu, who was married to Sanjay, son of the 1st respondent, about 1½ years prior to this incident. The first
Crl.A.No.177/1999 Page 1 of 14 information of this incident was given by Meenu herself in the hospital before Sh.K.K.Dahiya, SDM and on its basis, FIR No. 110/96 of this case was registered initially for the offence under Section 498-A/34 of the IPC against the respondents. When Meenu and her infant child had succumbed to the burn injuries, the 1st and 3rd respondents were accused of committing their murder and the statement of Meenu (Ex.PW1/A), which was recorded in question and answer form, became the dying declaration and the foundation of the prosecution case set up against the respondents.
3. At the trial, appellant-State not only relied upon the dying declaration (Ex.PW-1/A) of Meenu recorded by Sh.K.K.Dahiya, SDM (PW-1), but also upon the medical evidence i.e. of Dr.Neerja Banerjee (PW-6), who had found burn injuries on the arms, legs, abdomen, back and genetalia of Meenu and upon the arms, legs and lower abdomen of the child- Karan. Prosecution had also relied upon the deposition of Dr.Akash Jhangi (PW-5) and Dr.S.B.Singh (PW-6), who had conducted the post mortem on the dead body of Meenu and her child-Karan and had opined that the cause of their death was the aforesaid burn injuries.
4. To substantiate the charge of Meenu being subjected to cruelty by the respondents, prosecution had sought to rely upon the evidence of 3 relatives of Meenu (since deceased) i.e. of her mother -Sudesh Rani (PW-2), her brother- Deepak (PW-3) and her cousin- Naresh Kumar (PW- 4) but they had not toed the line of the prosecution. Thus, the prosecution had heavily relied upon the dying Crl.A.No.177/1999 Page 2 of 14 declaration (PW-1/A), which clearly spells out the prosecution version. It reads as under:- "Q: What is your name?
Ans: Meenu
Q: When did your marriage took place?
Ans: 1½ year ago. I have a son who has now entered the 8th month.
Q: When and how this fire took place?
Ans: It took place at 9.10 a.m. today. My mother-in-law and Jethani set me on
fire. I was feeding my child in the
morning. They poured kerosene oil on
me. I do not know who of the two
struck the matchbox. Last night my
Jeth abused me and turned me out of
the house. As soon as I caught fire,
my husband, who was sleeping, got
up and put a blanket on me and tried
to extinguish the fire. His hands were also burnt. My child was also injured by fire. My husband is very good. He
did not ever scold me. When I was
burning, I do not know who else came
there.
Q: Did anybody harass you?
A: My mother-in-law, Jeth and Jethani used to harass me. My father is not
alive. These people used to demand
dowry. Wherefrom I could have
brought it? The mother-in-law slaps
me after holding my hair. The Jethani also gave me beating once. My
husband never beat me. Ashok Jeth,
Nirmla Jethani and mother-in-law
harassed me. My father-in-law used
to remain at the shop.
L.T.I. Meenu."
Crl.A.No.177/1999 Page 3 of 14
5. Trial court in the impugned judgment of 23rd October, 1998 took note of the fact that Sh.K.K.Dahiya, SDM (PW-1) had categorically deposed that the thumb of Meenu was not injured and therefore observed that the thumb impression of Meenu on the Dying Declaration (Ex.PW-1/A) may be genuine but had proceeded to still examine as to whether Meenu was mentally fit to give a coherent version of the occurrence. In the impugned judgment it is noticed that at 1:55 pm, on the day of the incident, Ct.Natter Singh (PW- 12) had conveyed to the police station that Meenu wanted to make statement and the SDM (PW-1) had reached the hospital around 4:30 pm and had completed the recording of the statement of Meenu at 5.10 pm.
6. The reason put forth by the trial court to doubt the veracity of the Dying Declaration (Ex.PW-1/A) is that there is no evidence to throw light on the development between 1:55 pm and 4:30 pm, whereas it was the duty of the prosecution to show that the condition of Meenu remained stable till the arrival of the SDM. While noting that SDM (PW-1) admits in evidence that he did not contact the doctor after reaching the hospital and by simply perusing the MLC of Meenu had started recording her statement and on this account, drew adverse inference against the prosecution. Thereafter, trial court proceeded to rely upon the hostile testimony of Smt.Sudesh Rani (PW-2), mother of the deceased to discard the Dying Declaration (Ex.PW-1/A), while observing as under:-
"The testimony of PW-2 Sudesh Rani, the mother of the deceased, makes it totally unsafe to proceed on the dying declaration. Sudesh Rani states that she reached the Crl.A.No.177/1999 Page 4 of 14 hospital around 11.00 or 12.00 noon and her daughter was unconscious at that time. She further states that she could have no talk with her daughter because her
condition was bad. Sudesh Rani, being the mother of the deceased, could have no sympathy for the tormentors of her
daughter. Therefore, if she says that Meenu was unconscious around noon, I will have no reason to disbelieve her.
Consequently it will be very doubtful whether Meenu was in a proper frame of mind at 5.10 P.M. when the statement
Ex.PW-1/A was recorded.
In view of the above discussion I find that the mother and brother of the deceased have exonerated the accused persons. The authenticity of the dying declaration is doubtful. Therefore it will not be safe to hold the accused persons guilty. They are given the benefit of doubt and acquitted."
7. During the pendency of this appeal against acquittal of the respondents, the 2nd and 3rd respondent had died and this stands noted in the order of 25th August, 2011. The surviving respondent is the mother-in-law of deceased Meenu.
8. At the hearing of this appeal, on behalf of the appellant-State, it was strenuously contended by Mr.Pawan Sharma, learned Standing Counsel (Crl.) that the perversity of the impugned judgment is writ large on the face of it as the trial court has failed to take note of the fact that Meenu was declared fit for statement at 1:55 pm and the SDM (PW-1) has nowhere admitted in his evidence that he did not contact the doctor on reaching the hospital and infact, on this aspect the SDM (PW-1) was never questioned. Thus, it is contended that the mental fitness of Meenu to give a Crl.A.No.177/1999 Page 5 of 14 statement at about 4:30 pm on the day of incident stands firmly established from the evidence of SDM (PW-1) which has been illegally discarded by the trial court while relying upon the oral hostile testimony of Smt.Sudesh Rani (PW-2), mother of the deceased, resulting in complete miscarriage of justice.
9. Mr. Subhash C. Buttan, Advocate, representing the respondent asserted that the impugned judgment does not suffer from any illegality or infirmity and had proceeded to remind that in an appeal against acquittal, when 2 views are possible then, the view in favour of the accused ought to be preferred. Reliance was placed upon decision in Surinder Kumar vs. State, I (1992) CCR 411 to urge that Dying Declaration (Ex.PW-1/A) recorded by Magistrate without certificate of fitness by doctor becomes unreliable. Learned counsel for the respondent had also relied upon the decision in Mukeshbhai Gopalbhai Barot vs. State of Gujarat, AIR 2010 SC 3692 to highlight the basic principle that interference in appeal against acquittal should be minimal. Thus, it was urged that in the absence of a certification of the doctor regarding the mental fitness of Meenu, the solitary evidence, i.e., Dying Declaration (Ex.PW-1/A) has been rightly discarded by the trial court and so, this appeal merits rejection.
10. We are conscious that the Court can interfere with the order of acquittal only when:-
i. The appreciation of evidence by the trial court is perverse or the conclusion drawn by it cannot be drawn on any view of the evidence.
ii. Where the application of law is improperly done.
Crl.A.No.177/1999 Page 6 of 14 iii. Where there is substantial omission to consider the evidence existing on record.
iv. The view taken by the acquitting Court is impermissible on the evidence existing on record.
v. If the order of acquittal is allowed to stand it will result in miscarriage of justice.
11. The cardinal rule to be applied while dealing with an appeal against acquittal reiterated by the Apex Court in Anil Kumar Gupta Vs. State of U.P. JT 2011 (3) SC 529 is as under:-
"There cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Sessions Judge was absolutely perverse legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice."
12. Keeping in mind the above dictum, we proceed to examine as to whether there is any perversity in the
Crl.A.No.177/1999 Page 7 of 14 impugned judgment wherein dying declaration (Ex.PW-1/A) has been discarded due to absence of certification from a doctor regarding the mental fitness of Meenu before recording her statement and hostile testimony of mother (PW-2) of the deceased has been relied upon, to do so.
13. Before proceeding further, we recapitulate the principles governing dying declaration as summed up by the Apex Court in Vikas and Ors. Vs. State of Maharashtra, (2008) 2 SCC 516 in the following words:-
(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without
corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without
corroboration.
(iii) 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.
(iv) Where dying declaration is suspicious it should not be acted upon without
corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying
declaration the evidence with regard
to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis
of conviction.
Crl.A.No.177/1999 Page 8 of 14 (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(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.
(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.
14. Is it grossly unjustified to discard the dying declaration (Ex.PW1/A) which has been recorded by the S.D.M. (PW-1) in question-answer form, due to lack of evidence of mental fitness of the declarant- Meenu, especially when her thumb impression thereon has been found to be genuine by the trial court, is the precise question which is required to be answered in this appeal.
15. Upon scrutiny of the record of this case, we have noticed the following prominent features which adversely impact the impugned judgment:-
i. MLC of Meenu (EX.PW-6/B) clearly discloses that though she had
sustained 60% burns on her arms,
legs, abdomen, back and genetalia
but she was conscious, oriented and
was responding to commands at 9:15
a.m. on the day of the incident and
she was declared fit for statement by the doctor at 1:50 p.m. on that day
and the deposition of Dr.Neerja
Crl.A.No.177/1999 Page 9 of 14 Banerjee (PW-6) who has proved this
MLC, remains unchallenged.
ii. Post mortem report (EX.PW-5/A) of Meenu reveals that she had died after about 4 days of this incident and the evidence of Dr.Akash Jhanji (PW-5),
who has proved this post mortem
report, also remains unchallenged.
iii. Death summary report of Meenu on record reveals that on 4th day i.e. at 5:00 p.m. on 24.03.1996 her medical
condition had suddenly deteriorated
as she had suffered cardiac arrest.
iv. Unchallenged evidence of Sh.K.K.Dahiya, SDM (PW-1) of talking
to Meenu in the hospital to ensure
that she was fit for statement and of seeing her MLC certifying her to be fit for statement.
16. There is apparent fatal omission to consider the afore- noted 4 prominent features of the prosecution case by the trial court, which renders the impugned judgment perverse as no prudent person faced with sterling deposition of SDM (PW-1) could ever doubt mental faculty of Meenu to have made a statement in the evening on the day of the incident. Relevant it would be to note that there is no cross- examination of SDM (PW-1) regarding lack of mental fitness of Meenu to have made a statement at 4.30 pm on the day of the incident. There is not even a suggestion to the SDM (PW-1) by the defence that though Meenu was not in a position to make a statement but her thumb impression was obtained on it. Infact, it was not so.
17. Once there is a positive assertion by the SDM (PW-1) regarding Meenu being mentally fit to make a statement,
Crl.A.No.177/1999 Page 10 of 14 which remains unshaken, then it was incumbent upon the respondent-accused to have either confronted this witness - SDM (PW-1) or Dr.Akash Jhangi (PW-5) and Dr.Neerja Banerjee (PW-6) with medical treatment record of Meenu. Having not done so, respondent-accused cannot now legitimately assert that evidence regarding mental fitness of Meenu at the time of recording of her statement Ex.PW- 1A is lacking. Thus the legally erroneous view of the trial court of there being no evidence to throw light about the medical condition of Meenu between 1.55 pm and 4.30 pm cannot be sustained as the trial court has misread the evidence to opine that the SDM (PW-1) had admitted that he had not contacted the doctor after reaching the hospital. Since Meenu was already declared fit to make statement by the doctor concerned, as is evident from her MLC (EX.PW- 6/B), there was no occasion for the SDM (PW-1) to have contacted any doctor before recording her statement. This is being so said because the primary evidence is of the SDM (PW-1) who had recorded the statement of Meenu and it is his satisfaction about the fitness of state of mind of Meenu, which matters. It is being so opined in view of the pertinent observations of the Apex Court in Sher Singh & Anr. Vs. State of Punjab, AIR 2008 SC 1426, which read as under:- "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."
Crl.A.No.177/1999 Page 11 of 14
18. 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 and the requirement of doctor's endorsement as to mental fitness of deceased is merely a rule of prudence. It has been so ruled by the Apex Court in Vikas & Ors. vs. State of Maharashtra, (2008) 2 SCC 516, while declaring that if the dying declaration is excluded from consideration, it may result in miscarriage of justice inasmuch as in a given case, the victim may be the only eye witness of a serious crime and exclusion of the statement of the declarant will leave the case with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice and so, legislature has accorded a special sanctity to a dying declaration, however with a rider that it should be of such a nature as to inspire full confidence of the Court.
19. Reliance placed upon Surinder Kumar (supra) by respondent's counsel is clearly misplaced as in the said decision, the dying declaration was neither in question- answered form nor was in the language of the deceased and it was recorded after 12 hours of the incident and so in the facts of the said case it was not relied upon. No doubt, interference in an appeal against acquittal should be minimal but no reliance can be placed upon decision of Mukeshbhai (supra) to uphold respondent's acquittal, as in this case there were 3 dying declarations and finding them to be suspicious, they were discarded while restoring the acquittal of the accused.
20. Whereas, Vikas & ors. vs. State of Maharashtra, (2008) 2 SCC 516, was a case of bride burning where dying Crl.A.No.177/1999 Page 12 of 14 declaration recorded by the Magistrate was found to be reliable and the hostile evidence of father of the victim favouring defence was discarded. In the instant case, we have found the dying declaration (Ex.PW-1/A) to be completely trustworthy and there is no valid basis upon which it could be reasonably said that the declarant was not in a fit state of mind to give the statement and the trial court without pointing out any infirmity in the deposition of SDM (PW-1) has whimsically discarded the resolute testimony of SDM (PW-1) and has strangely relied upon hostile evidence of Sudesh Rani (PW-2), mother of the deceased, who has been apparently won over the respondent-accused. Such an approach of the trial court is not only patently perverse but has also resulted in grave miscarriage of justice.
21. Finding the dying declaration (Ex.PW-1/A) of Meenu to be inspiring utmost confidence, with no iota of doubt about her mental faculty, we unhesitatingly rely upon it to hold that the charge of murder stands proved beyond doubt against the respondent-accused, as she was instrumental in setting Meenu on fire.
22. Upon having reached the aforesaid conclusion, we allow this appeal and set aside the impugned judgment and hold that respondent-Smt.Sumitra wife of Shri Trilok Chand is guilty of the charge of committing murder of Meenu and her infant child Karan. Accordingly she is convicted and sentenced to imprisonment for life. Forfeiting her bail bonds, we direct that respondent-Sumitra be taken into custody forthwith.
23. The appeal is disposed of with direction to the trial court to ensure compliance of this order.
(SUNIL GAUR)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
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