Penal Code, 1860: s. 302 r/w 34 – Allegation that on account of previous dispute between the parties, accused with the intention to kill the victim went to her house, doused her with kerosene and set her ablaze – Acquittal by the trial court – However, the High Court on basis of the dying declaration and corroborative statement of the police officer who recorded the dying declaration and the doctor who endorsed the mental fitness of the victim to make such statement, convicted the accused u/s. 302 r/w 34 and imposed life imprisonment – On appeal, held: Conviction of the accused cannot be upheld only on the basis of the dying declaration – Narration of events in the dying declaration were so accurate to be believed – Injured victim was an illiterate old person and its beyond human probabilities to have been able to narrate the minutes of the incident with such accuracy – Owing to 80% burn injuries suffered by the victim on all vital parts of the body, the possibility of her not being in a fit state cannot be completely ruled out – Police Officer did not ask the doctor to make an endorsement of fitness of the victim before recording the statement – There is a serious contradiction between the statement of the doctor and the police officer in respect of the nature of burn injuries suffered on different body parts of the victim – Alleged motive for the homicidal death was doubtful – Unusual conduct and behaviour of victim’s son and her daughter-in-law support the parallel version that the victim might have committed suicide – Prosecution had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration, however that was not done – Furthermore, the High Court dealt with the appeal against acquittal summarily and did not notice the glaring contradictions – The so-called motive has not been proved at all and the declaration, thus, recites a non-existent incident – Thus, the view taken by the trial court is fully endorsed and the order passed by the High Court is set aside.
Evidence Act, 1872: s. 32 - Dying declaration – Evidentiary value of – Sustenance of conviction solely based thereon – Held: When the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, it can be relied upon as the solitary piece of evidence to convict the accused – Dying declaration is admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath – It is the last words of a person which are presumed to be truthful, and not infected by any motive or malice – Thus, the dying declaration is admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction. Code of Criminal Procedure, 1973: s. 378 – Appeal in case of acquittal – Exercise of power by High Court u/s. 378 – Held: Power of scrutiny exercisable by the High Court u/s. 378 should not be routinely invoked where the view formed by the trial court was a ‘possible view’ – Unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with – This self-restraint doctrine, certainly, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different finding of fact. Allowing the appeals, the Court
HELD : 1. When the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the deceased admissible. Such statement, classified as a “dying declaration” is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction. [Para 15] [29-B-E]
P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC
443 : [2003] 1 Suppl. SCR 745; Chacko v. State of Kerala (2003) 1 SCC 112; Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165 : [2006] 5 Suppl. SCR 709; Paniben v. State of Gujarat (1992) 2 SCC 474 : [1992] 2 SCR 197; Sampat Babso Kale
and Another v. State of Maharashtra 2019 (4) SCC
739 : [2019] 5 SCR 904 - referred to.
2. Having meditated over the issue to the extent it is possible, and on a minute examination of the original documentdying declaration (without understanding its contents as it is in Kannada language except that the endorsement of the doctor is in English) read with its true translation placed on record, it is not found to be totally safe to convict the appellants on the basis of the said document alongwith its corroboration by PW-11, police officer and PW-16, doctor for the several reasons. Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision. Although it is stated that deceased was questioned by the Police officer, the purported dying declaration is not in a questions and answers format. The direct or indirect dominance of the Police Officer appears to have influenced the answers only in one direction. Secondly, the injured victim was an illiterate old person and it appears beyond human probabilities that she would have been able to narrate the minutes of the incident with such a high degree of accuracy. Thirdly, there is sufficient evidence on record that the victim had been administered highly sedative painkillers. Owing to 80% burn injuries suffered by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. The doctor (PW16) made the endorsement that the victim was in a fit state of mind to make the statement ‘after’ the statement was recorded and not ‘before’ thereto - being the normal practice. It further appears that faculties of the injured had been drastically impaired and instead of making statement in an informative form she had apparently endorsed what the Police Officer (PW-11) intended to. True it is that the Police Officer (PW-11) had no axe to grind or a motive to implicate the appellants, but his over-enthusiasm to solve a criminal case within no time seems to have swayed the Police Officer (PW-11) so much that he appears to have not asked the doctor to make an endorsement of fitness of the victim before recording the statement. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself. Fourthly, there is a serious contradiction between the statement of PW-16 on one hand and PW-11 on the other, in respect of the nature of burn injuries suffered on different body parts of the victim. While the doctor acknowledges that burn injuries included the hands of the victim, the police officer claims that her hands were safe and she could put her thumb impression. The thumb impression is seen very scrupulously and the same appears to be absolutely natural. If that is so, the medical officer, whose statement should carry more weightage in respect of the nature and gravity of injuries, stands belied. Fifthly, and most importantly the police officer PW-11 candidly admits that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement. Both the police officer as well as the doctor have tried to cover up this serious lacuna by referring to the purported oral endorsement of the doctor. It appears that the police officer was in full command of the situation and with a view to fill up the legal lacuna, he later on secured the endorsement from the doctor PW-16 on the available space of the paper, which is ex-facie unusual and not in line with settled legal procedure. Sixthly, the alleged motive for the homicidal death is highly doubtful. There is not an iota of evidence, and the prosecution has made no effort to verify the truth in the statement that the appellants poured kerosene and lit the victim on fire only because her son had assaulted the husband of Appellant No.1 and the accused were insisting on payment of Rs.4,000/- which was spent on the treatment of the said assault–victim. Not much can be said when the deceased’s own son and daughter-in-law have denied this incident and rather claimed that their mother/mother-in-law committed suicide. The Seventh reason to dissuade from harping upon the dying declaration is the conduct of the parties, i.e., a natural recourse expected to happen. Had it been a case of homicidal death, and the victim’s son PW-2 and her daughter-in-law PW-5 had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughter-in-law and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide. The Eighth reason which makes this Court reluctant to accept the contents of purported dying declaration, is the fact that victim was brought to the Civil Hospital at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries after almost 30 hours later at 5:30 am on 23.09.1998. It is neither the case of prosecution nor has it been so stated by PW-11 or PW-16 that soon after recording her statement she became unconscious or went into coma. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. The law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case. [Para 22][31-G-H; 32-A-H; 33-A-H; 34-A-D]
3. The High Court’s view regarding conviction of the appellants is departed from because the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ‘possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact. [Para 23][34-E-G]
4. It may be seen that the High Court dealt with the appeal against acquittal summarily and did not even discuss the ocular evidence, especially of the son and daughter-in-law of the deceased, who have, to some extent, belied the version of the doctor (PW-16) or the investigating officer (PW-11). It is said so because according to (PW-2), son of the deceased, the victim had lost consciousness and was unable to speak at the time when she was rushed to the hospital in a bullock cart arranged by (PW3). Without discarding or disbelieving such statement(s), it is difficult to accept that injured was in a fit state of mind at 1:15 a.m. when the alleged dying declaration was recorded. Her state of mind can be well imagined due to the combined effect of the trauma and the administration of painkillers. The High Court, on the other hand, relied upon the dying declaration as the same was purportedly corroborated by the statements of doctor (PW16), and the police official (PW-11) who authored the document. Such a conclusion, is totally erroneous and based upon misreading of the evidence on record. According to PW-16, the victim had suffered 80% injuries including on her hands. As against it, the Police Officer PW-11 claims that there were no burn injuries on the hand of the victim, hence she could put her left thumb impression on the dying declaration. These glaring contradictions should not have gone unnoticed by the High Court. [Para 24] [34-H; 35-A-E]
5. The document itself recites that son of the injureddeceased, had beaten the husband of Appellant No. 1 and the appellants had statedly incurred medical expenses to the tune of Rs. 4,000/- which they demanded from the injured-deceased and then they doused kerosene and set her on fire. In the absence of any provocation from the side of injured, the cause itself being so trivial in nature and the factum of causing any injuries to the husband of Appellant No. 1 having been expressly denied by the daughter-in-law of the deceased, coupled with the fact that there is no evidence whatsoever to prove that any such incident took place, the so-called motive has not been proved at all and the declaration, thus, recites a non-existent incident. [Para 25] [35-E-G]
6. The Additional Session Judge, formulated point as to whether the prosecution was able to prove beyond all reasonable doubt that the accused persons with an intention to kill the victim went to her house and picked up a quarrel in connection with a previous dispute and then doused her with kerosene and set her ablaze. The Additional Sessions Judge extensively examined the entire evidence and after reaching to the conclusion that all the witnesses of the motive or the occurrence have resiled and declared hostile, he was left with the residuary question to decide as to whether the death was suicidal or homicidal. He, thereafter, considered the dying declaration threadbare and critically analysed the statements of PW-11 and PW-16. The factors like interpolation in the dying declaration; contradiction in the statements of PW-11 and PW-16 regarding injuries on the palm; the victim with 80% injuries was apparently not in a situation to talk or give statement; son of the deceased himself stated that his mother committed suicide as she could not bear that her another son had been sent to jail; there being no corroborative evidence to the statement; and there is no other evidence led by the prosecution to connect the appellants with the crime except the statement, he held it unsafe to convict the appellants on the solitary basis of the dying declaration. The view taken by the trial court is fully endorsed. The reasons which assigned are sufficient to cast doubts on the genuineness of the prosecution case. Thus, it is difficult to uphold the conviction only on the basis of the dying declaration. [Paras 26 & 27][35-H; 36-A-E] Chandrappa v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; Perla Somasekhara Reddy and
Others v. State of A.P. (2009) 16 SCC 98: [2009] 8 SCR 145 ; State of Rajasthan v. Shera Ram (2012) 1 SCC 602 : [2011] 15 SCR 485; Shyam Babu v. State of Uttar Pradesh (2012) 8 SCC 651 : [2012] 8 SCR 255; Murugesan v. State (2012) 10 SCC 383 : [2012]
13 SCR 1; Mookkiah v. State (2013) 2 SCC 89 : [2013]
2 SCR 881; Shivasharanappa v. State of Karnataka (2013) 5 SCC 705 : [2013] 5 SCR 1104; Surinder
Kumar v. State of Haryana (2011) 10 SCC 173 : [2011]
12 SCR 1205; Paparambaka Rosamma & Ors v. State of A.P. (1999) 7 SCC 695 : [1999] 2 Suppl. SCR 328; Vijay Pal v. State (Government of NCT of Delhi) (2015)
4 SCC 749 : [2015] 3 SCR 394 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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