Umakant Vs State of Chhatisgarh

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1424 OF 2012

UMAKANT & ANR. … APPELLANTS

VERSUS

STATE OF CHHATISGARH … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

Aggrieved by the judgment and order dated 24 th September,

2010 of the Division Bench of the High Court of Chhattisgarh,

Bilaspur in Criminal Appeal No. 495 of 2005 maintaining their

conviction and sentence under Section 302 read with Section 34,

IPC, the appellants have filed this appeal by special leave.

2. Brief history of the case, as per prosecution case, is that Anita

Jaiswal (deceased) was married to Umakant (appellant No.1) and

after six months of the marriage, her husband and in-laws started

harassing her to bring money from her father whenever she visits

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her parental home and also made a demand of Rs.50,000/- as

dowry. She was also subjected to torture and cruelty every now and

then by the husband and in-laws. On 2nd August, 2003, within one

and a half years of her marriage, the appellant No. 1 (husband)

beat her with an iron rod before night and while she was going to

take bath in the morning, he caught hold of her and allegedly poured

kerosene on her body. Appellant No. 2 (mother-in-law) set her

ablaze by lighting a match stick. The victim was immediately taken

to Revival Medical Centre, Bhilai where appellant No. 2 stated to the

Doctors that the victim sustained burn injuries due to accident (Ext.

P-2) with a chimney (local lamp). The victim was treated at the

Revival Medical Centre till 13th August, 2003 on which date, when

the condition of the victim was getting deteriorated, the Revival

Medical Centre intimated the police about the incident vide Ext. P-

21. Immediately thereafter, F.I.R. (Ext. P-24) was registered by the

ASI, PS Newai (PW23). Investigation was taken up by PWs 26 and

27, the Superintendent of Police and the Station House Officer

respectively who also seized a bottle of kerosene oil, one wooden

stool, one iron pipe etc., and a seizure memo was accordingly

prepared. On 13th August, 2003 itself the victim’s dying declaration

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(Ext. P-13) was also recorded by the Executive Magistrate (PW 12).

The victim was then shifted to Jawaharlal Nehru Hospital &

Research Centre, Bhilai for further treatment. However, on 7 th

September, 2003, during the course of her treatment, the victim

died.

3. After the death of the deceased, investigation continued,

witnesses were summoned, inquest was made, dead body was sent

for autopsy, spot map was prepared. Having recorded statements

of witnesses under Section 161, Cr.P.C., charge sheet was filed

against the accused (husband, mother-in-law and father-in-law). The

learned Judicial Magistrate, First Class committed the case to the

Court of Session. The learned Trial Judge framed charges against

the accused under Sections 3 & 4 of Dowry Prohibition Act, 1961

and under Sections 304B/34, 302/34 and 498-A, IPC. In their

statement under Section 313, Cr.P.C. the accused denied the

charges and claimed to be tried. At the trial, they took the plea that

the deceased died as a result of accident of chimney (local lamp)

and they have been falsely implicated.

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4. To bring home the charges against the accused, the

prosecution in all examined 27 witnesses whereas the accused, in

their defence examined two witnesses.

5. The Trial Court, after analyzing the statements of witnesses

and keenly considering the material evidence came to the opinion

that the prosecution had got established its case and the dying

declaration (Ext. P-13) was also proved from its writer (PW-12).

After going through the entire process of trial and in the light of

various rulings of this Court, the Trial Court came to the conclusion

that all the three accused were guilty of the offences charged

against them, except charge under Section 304/B/34, IPC against

father-in-law of the deceased. The Trial Court accordingly acquitted

him of the said charge and sentenced all the accused in the

following terms.

Accused No.1-Umakant (Appellant No.1-husband of the deceased)

Under Section 3 of Dowry Prohibition Act, 1961

R.I. for 5 years and fine of Rs.2000/-, in default, additional RI for one year

Under section 4 of Dowry Prohibition Act, 1961

R.I. for 1 year and fine of Rs.1000/-, in default, additional RI for six months.

Under Section 498-A of IPC

RI for 3 years and fine of Rs.2,000/-, in default, additional RI for six months.

Under Section 304-B of IPC

Life imprisonment and fine of Rs.2,000/-, in default, additional RI for one year

Under Section 302/34, IPC

Life imprisonment and fine of Rs.2,000/-, in default, additional R.I. for one year.

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Accused No. 2-Yashoda (Appellant No. 2-mother-in-law of the deceased)

Under Section 3 of Dowry Prohibition Act, 1961

R.I. for 5 years and fine of Rs.1000/-, in default, additional RI for six months.

Under section 4 of Dowry Prohibition Act, 1961

R.I. 6 month and fine of Rs.1000/-, in default, additional RI for one month.

Under Section 498-A of IPC

RI for 3 years and fine of Rs.1,000/-, in default, additional RI for six months.

Under Section 304-B of IPC

Life imprisonment and fine of Rs.1,000/-, in default, additional RI for six months.

Under Section 302/34 of IPC

Life imprisonment and fine of Rs.1,000/-, in default, additional RI for six months.

Accused No. 3 – Om Prakash (father-in-law of the deceased)

Under Section 3 of Dowry Prohibition Act, 1961

R.I. for 5 years and fine of Rs.2,000/-, in default, additional RI for six months.

Under section 4 of Dowry Prohibition Act, 1961

R.I. for 1 year and fine of Rs.1,000/-, in default, additional RI for two months.

Under Section 498-A of IPC

RI for 3 years and fine of Rs.2,000/-, in default, additional RI for six months.

6. While dealing with the appeal filed by the accused, the High

Court formed the opinion that there was not enough evidence to

uphold the conviction and sentence of the appellants as awarded by

the Trial Court under Sections 498-A, 304-B, IPC and Sections 3 & 4

of the Dowry Prohibition Act, 1961. Therefore, the High Court

acquitted all the accused from the charges against the

aforementioned Sections. But, placing reliance solely on the dying

declaration (Ext. P-13), the High Court thought it fit to convict the

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appellants under Section 302 read with Section 34, IPC on the basis

of dying declaration itself. Accordingly, the High Court maintained

the conviction and sentence awarded by the Trial Court against the

appellants under Section 302 read with Section 34, IPC.

7. In view of the above conviction and sentence maintained by

the High Court, the appellants approached this Court in this appeal

finding fault with the decision of the High Court, which is impugned

herein.

8. Learned counsel for the appellants contended that the Courts

below have dealt with the case without proper application of mind

and there were several discrepancies and contradictories in the

statements of witnesses. Normally, before convicting an accused

under Section 302, IPC, Courts provide so many safeguards to the

defence, whereas in the present case those safeguards have not

been provided. Thus, entire process of trial has been vitiated and led

to the miscarriage of justice against the appellants. He also

contended that when the High Court was of the opinion that there is

no cogent evidence to sustain the order of conviction passed by the

Trial Court under Sections 498A, 304B, IPC and Sections 3 & 4 of

the Dowry Prohibition Act, 1961, the dying declaration also ought not

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have been relied upon for punishing the accused under Section

302/34, IPC. The alleged dying declaration was a product of tutoring

and not voluntarily given by the deceased, hence it is not

trustworthy. He, therefore, argued that the conviction of appellants

under Section 302/34, IPC. is completely erroneous, misconceived

and deserves to be set aside.

9. On the contrary, learned counsel for the State submitted that

the impugned judgment was rendered by the High Court after a

thorough analysis of the entire case with scrutiny of the evidence of

all material witnesses. Considering the facts and circumstances of

the case, particularly the nature of cruelty and torture caused by the

appellants to the victim which stands proved by the dying

declaration, the High Court has rightly convicted and sentenced the

appellants and there is no illegality in the impugned order. He

therefore submitted that there is no ground calling for interference by

this Court and the appeal deserves to be dismissed.

10. We have heard learned counsel for the parties and carefully

gone through the records of both the Trial Court as well as the High

Court.

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11. Before we deal with the judgment of the High Court which is

impugned before us, whereby it has acquitted the accused of the

charges under Section 498-A, 304-B IPC and Sections 3 & 4 of the

Dowry Prohibition Act and convicted them for the offence under

Section 302 IPC, curiously the basis for acquittal under the other

offences and conviction of the accused under Section 302 IPC is

based on the dying declaration of the deceased which is marked as

Ex.P-13. For better appreciation, we shall refer to the important

facts of the case. As per the case of the prosecution, the deceased

was admitted in the hospital i.e. Revival Medical Centre on

02.08.2003 with burn injuries. The deceased when enquired by the

Doctor as to how she sustained burn injuries, she informed him that

she caught fire accidentally. This version of the deceased, was

recorded by the Doctor, in the presence of her sister. Her sister and

brother-in-law gave consent letter, which was marked as Ex.P-2,

and it reveals that the deceased suffered burn injuries accidentally

and the deceased Anita had burnt herself. Nobody had burnt her.

When the Doctor asked the deceased several times, she gave the

same answer. On 06.08.2003, her parents also came to Bhilai and

stayed with her. She remained in the hospital till 10.00 p.m. of

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13.08.2003. Thereafter, as her condition deteriorated, she was

shifted to another hospital. On 13.08.2003, for the first time, Police

were informed about the incident. On that day, her dying declaration

was recorded by the Magistrate who was later examined as P.W.12.

The deceased succumbed to the burn injuries on 07.09.2003.

12. The trial Court basing on the evidence available on record

convicted and sentenced the appellants under Section 498-A, 304-

B, 302 r/w 34 IPC and Sections 3 and 4 of the Dowry Prohibition

Act. While the High Court though acquitted the accused under

Section 498-A and 304-B IPC and Sections 3 and 4 of the Dowry

Prohibition Act, but found them guilty for the offence under Sections

302 r/w 34 IPC and confirmed the sentence imposed by the trial

Court on that count.

13. We have given our anxious consideration to the judgment of

the High Court which is impugned before us, to find out the legality

or otherwise of the judgment of conviction and order of sentence

passed against the appellants for the offence under Section 302 r/w

34 IPC. The whole basis for the High Court to convict and sentence

the accused under Section 302 IPC is the dying declaration

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recorded by the Magistrate which was marked as Ex.P-13. It would

be appropriate to extract the same, which reads:

“Question: Whether would you able to give your statement?

Answer: Yes.

Q: What is your name? What is the name of your husband? Where do you live at? Please tell your complete name.

A: My name is Anita Jaiswal. Umakant is the name of my husband. I reside in Marauda Bhilai.

Q: Who had admitted you at this place and when they had admitted you?

A: My husband and mother-in-law have admitted me at this place. I do not remember the date of my admission. I have been burnt therefore they have admitted me.

Q: How you were burnt, the incident is of which date, please tell the whole description.

A: My mother-in-law was committing cruelty against me, whenever I went my Mayeka she used to tell me for taking Rs.50,000/- from my Mayeka. We are total four sisters and four brothers. Whenever I returned from my Mayeka, upon not taking the money she used to torture me badly, recently some mothers back while I went to Gujarat, my mayeka, when I came back my Sasural then they started telling about the money. One day prior to the date of the incident my husband had heavily beaten me, he beaten me from the Pirha (wooden structure) and from the iron rod, on the next day to that at about 8.00 a.m. after holding me my husband poured kerosene oil over me and after lit up a match stick my mother-in-law thrown the same at me, after becoming frightened, I held the hands of my Jeth, while my Jeth also started burning then after giving jolt at me, he got me fell down, the ladies residing in the back side

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of my residence arrived there and they changed my clothes after than by arranging a temp, I got admitted in the hospital.

Q: Whether you did not tell your parents that your husband and mother-in-law were harassing you?

A: After the marriage, I visited Mayeka for three times, then on the third occasion while I had gone to Mayeka then I had told my father then my father had told me that presently his position was not good, after managing the money as earliest he would sent the money. I had told abiout the cruelty of my husband and mother-in-law.

Q: Since how may days from the marriage they have been committing cruelty? You have been burnt at which body parts?

A: They have been harassing me since 4 -5 months after the marriage. They were committing cruelty for the dowry. My whole body parts below the neck have been burnt.

Q: Whether you want to tell anything more?

A: No”.

14. According to the High Court, Ex.P-2, the alleged consent letter

given by sister and brother-in-law, which says that burn injuries

sustained by the deceased was a case of accident and Anita had

burnt herself, runs contrary to each other, because in the case of

accident, the patient will burn herself, but if she burnt herself, then it

cannot be a case of accident. Hence, the High Court disbelieved

Ex.P-2. The High Court further observed that not giving the

information about the incident by the Revival Medical Centre to the

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police shows that the hospital staff in connivance with the accused,

treated the deceased without informing about the incident to the

police.

15. Another reason given by the High Court for convicting the

accused under Section 302, IPC is that, as per the dying

declaration, the deceased had stated that when her mother-in-law

and husband lit fire to her, she asked the brother-in-law and caught

hold of him, and at that time, he also sustained burn injuries, which

is supported by the evidence of the Doctor P.W.13, who has

deposed that the injury on the hands of the brother-in-law P.W.14 is

possible if a person who is in flames catch holds of another person.

The High Court disbelieved the evidence of Doctor Vijay Kumar

Sharma, which is in favour of the accused, basing on the

contradictions in his evidence with regard to the nature of injuries

and not informing about the incident to the police.

16. Finally, the High Court convicted and sentenced the accused,

basing on the dying declaration that the deceased was not having

cordial relationship with the accused. The appellant No.1 poured

kerosene oil upon the deceased and appellant No.2 had set her

ablaze. As the dying declaration inspires confidence, it is trustworthy

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and drew inference that the appellants Umakanth and Yashoda

poured kerosene oil upon the deceased, set her afire and caused

her death. However, the High Court felt that there is no cogent

evidence to convict the accused under Section 498-A and 304-B

IPC and Sections 3 and 4 of the Dowry Prohibition Act.

17. Now the issue that falls for consideration before us is whether

the High Court was right in convicting and sentencing the accused

under Section 302 IPC basing on the dying declaration of the

deceased?

18. The philosophy of law which signifies the importance of a

dying declaration is based on the maxim “nemo moritusus

prasumitus mennre”, which means, “no one at the time of death is

presumed to lie and he will not meet his maker with a lie in his

mouth”. Though a dying declaration is not recorded in the Court in

the presence of accused nor it is put to strict proof of cross-

examination by the accused, still it is admitted in evidence against

the general rule that hearsay evidence is not admissible in evidence.

The dying declaration does not even require any corroboration as

long as it inspires confidence in the mind of the Court and that it is

free from any form of tutoring. At the same time, dying declaration

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has to be judged and appreciated in the light of surrounding

circumstances. The whole point in giving lot of credence and

importance to the piece of dying declaration, deviating from the rule

of evidence is that such declaration is made by the victim when

he/she is on the verge of death.

19. In spite of all the importance attached and the sanctity given to

the piece of dying declaration, Courts have to be very careful while

analyzing the truthfulness, genuineness of the dying declaration and

should come to a proper conclusion that the dying declaration is not

a product of prompting or tutoring.

20. The legal position about the admissibility of a dying declaration

is settled by this Court in several judgments. This Court in Atbir v.

Government of NCT of Delhi - 2010 (9) SCC 1, taking into

consideration the earlier judgments of this Court in Paniben v. State

of Gujarat - 1992 (2) SCC 474 and another judgment of this Court

in Panneerselvam v. State of Tamilnadu - 2008 (17) SCC 190 has

given certain guidelines while considering a dying declaration:

1. Dying declaration can be the sole basis of conviction if it inspires full confidence of the Court.

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2. 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.

3. Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

4. 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 corroborative. The rule requiring corroboration is merely a rule of prudence.

5. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

6. A dying declaration which suffers from infirmities, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

7. Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

8. Even if it is a brief statement, it is not to be discarded.

9. 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.

10. If after careful scrutiny the Court is satisfied that it is 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 basis of conviction, even if there is no corroboration.

21. In the light of the above legal position that governs the

consideration of a dying declaration, the factual matrix has to be

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scrutinised. As already extracted above, in the dying declaration

Ex.P-13, the deceased stated before the Magistrate that the

appellants demanded dowry and that the appellants set fire to her

and she asked her brother-in-law to rescue her, but he had chosen

not to do so, and further on hearing her cries, the neighbours came

and extinguished the fire and admitted her in the hospital. After she

was admitted in the hospital, her parents came and she informed

them about the incident.

The deceased is said to have stated that when she was

pregnant she was beaten up by the accused and because of

which the child died in the womb. At that time, she had taken

treatment in Revival Hospital]. This statement is found in Ex.P-23,

FIR written by K.B. Singh (P.W.23), and not in Ex.P13 dying

declaration.

22. When we look at the dying declaration, it is not inspiring

confidence in the mind of this Court and throws serious doubt that

the same is a product of tutoring by the family members of the

deceased for the reason that, the sister of the deceased who was

present when the deceased was admitted in the hospital had signed

in Ex.P-2 wherein it is stated that it was an accident and nobody has

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burnt the deceased, but later she turned around and stated that

unless she signed on that, they were told that the deceased would

not be treated, and the High Court has taken this fact into

consideration, whereas in the dying declaration, the deceased has

stated that when her parents came to the hospital on 06.08.2003,

she informed to the parents for the first time and she had not

mentioned that she informed her sister or anybody before that, but

according to the sister of the deceased, on 02.08.2003, she was

aware of this, which shows that the evidence of the witness is not

reliable and clouded with doubt.

23. The other circumstances which draw our attention is when the

deceased informed her parents on 06.08.2003, it is quite natural that

the parents will inform the police about the incident, because it is

nobody’s case that they were restrained in any manner from

informing the police. Even the deceased throughout the stay in the

hospital for those 11 days had many an occasion to meet the

Doctors and other staff of the hospital, but she had chosen not to

give any complaint nor tried to share her agony with them, which

throws a grave doubt on the genuineness of the dying declaration.

We have gone through the judgment of the High Court, where P.W.7

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who has specifically deposed that they have tutored the deceased to

state that she was burnt by the accused.

24. The High Court while considering Ex.P-2 has come to a

conclusion that the statement given in that one line is contradictory

to one another. In one line, it says that the injuries sustained by her

are by accident. Nobody has burnt her and she burnt herself.

Hence, the High Court discarded Ex.P-2. But, in our considered

opinion, the High Court did not appreciate the same in its proper

perspective and interpreted it in a wrong way. What Ex.P-2 states is

that it is an accident, and nobody has pushed her and for that

accident, only the deceased is responsible.

25. The burden of proof in criminal law is beyond all reasonable

doubt. The prosecution has to prove the guilt of the accused

beyond all reasonable doubt and it is also rule of justice in criminal

law that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other towards

his innocence, the view which is favourable to the accused should

be adopted. After considering the evidence and the judgments of

the Courts below, we are of the considered opinion that the

evidence available on record and the dying declaration does not

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inspire confidence in the mind of this Court to make it the basis for

the conviction of the appellants. Apart from this, the High Court

basing on the same dying declaration, ought not to have convicted

the appellants under Section 302 IPC, when they were acquitted

under Section 304-B and 498-B IPC and Sections 3 and 4 of the

Dowry Prohibition Act by the High Court.

26. Accordingly, this Criminal Appeal is allowed. The conviction

and sentence imposed by the High Court vide its judgment dated

24th September, 2010 in Criminal Appeal No. 495 of 2005, against

the appellants for the offence under Section 302 r/w 34 IPC, is set

aside. Consequently, the appellants shall be released forthwith, if

they are not required in any other case.

…………………………………………J. (DIPAK MISRA)

………………………………………….J. (N.V. RAMANA)

NEW DELHI, JULY 01, 2014

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