Evidence Act, 1872 – ss. 32, 157 – Code of Criminal Procedure – s. 164 – Dying declaration – Victim survived – Statement u/s.164 Cr.P.C. – Prosecution case that appellant consumed a poisonous substance, which she also administered to her 10 months old daughter – They were taken to hospital – Appellant’s dying declaration was recorded – Appellant survived but her baby died – Appellant’s husband reported matter to the police, which led to regsitration of FIR u/ss. 302 and 309 IPC – Appellant’s husband (PW1) and her father-in-law (PW5), both turned hostile during the trial – Trial Court found the appellant guilty of the offences u/ss. 304(1) and 309 of the IPC – The appeal filed by the appellant against the conviction was dismissed by the High Court – The question arises for consideration before the Supreme Court, whether it is tenable to uphold the conviction of the appellant solely on the basis of her purported dying declaration which also appears to have been classified as a statement u/s. 164 of the Cr.P.C., considering that appellant has denied making any statement? – Held: The subsequent denial by the appellant of the statement attributed to her is of relevance – Appellant has attributed her initial statement, when she had regained consciousness in the hospital, to influencing from the police who allegedly convinced her that they would apprehend the individuals who had offered her daughter and her the tainted honey, and also recover the jewelry that these unidentified persons had stolen – However, she claimed that they asked her to remain silent about these details and simply convey that the two of them had consumed poisonous substance – This has an impact on the genuineness of the initial statement made by the appellant combined with the subsequent hostile turn taken by some witnesses (PW1 and PW5) – Also, guilt of the appellant not tallying easily with her continuing marriage to PW1 and her fostering of two children after death of her first born – This creates a reasonable doubt regarding appellant’s conviction – Further, there were issues of contention that, were not adequately addressed – The same benefits the appellant – Therefore, judgments of the trial Court and the High Court set aside.
Allowing the appeal, the Court
HELD: 1. At the outset, the subsequent denial by the appellant of the statement attributed to her is of relevance. It further appears that PWs 1 & 5, appellant’s husband who is also the complainant, and her father-in-law, have both turned hostile. However, the Sessions Judge brushed aside this factor based on the rationale that these individuals were, ultimately, interested in ensuring that the appellant was acquitted and hence resiled from their earlier statements which had supported her guilt. The trial Court opined that the prosecution version of events was, by far, the more plausible and logically resulted in the demise of the appellant’s daughter. [Para 12][373-H; 374-A-B]
2. Undoubtedly there is some murkiness surrounding the exact circumstances in which the appellant and her daughter consumed a poisonous substance, Odeuvanthlai. The appellant has attributed her initial statement on 11.10.2012, when she had regained consciousness in the hospital, to influencing from the police who allegedly convinced her that they would apprehend the individuals who had offered her daughter and her the tainted honey, and also recover the jewelry that these unidentified persons had stolen. However, she claimed that they asked her to remain silent about these details and simply convey that the two of them had consumed poisonous substance. This sequence of events has been disbelieved by the Sessions Judge and the High Court. Be that as it may, this necessarily has an impact on the genuineness of the initial statement made by the appellant. Combined with the subsequent hostile turns taken by some of the vital witnesses in the trial, a seed of doubt is placed in terms of the conviction of the appellant. [Paras 14 & 15][374-D-G]
3. Thus, the focus for this Court when ascertaining reasonable doubt is not merely the possibility of doubt or of another version of events but rather a version that survives the scrutiny of an honest and conscientious judicial mind. In the present case, it is to be noted that following the incident, the marriage between the appellant and PW1, the complainant, continues to subsist and that she has given birth to two minor children. When considering the appellant’s guilt, the Sessions Judge and the High Court have not satisfactorily considered the effect and impact of PW1 & PW’5’s failure to support the prosecution. When considering the disputed confession by the appellant, the bedrock on which the prosecution’s case stood was undone but the Sessions Judge and the High Court proceeded on what prima facie appears to be an almost unqualified acceptance that the confession remained unassailable. This was in spite of the fact that only PW8 remained to provide some degree of corroboration regarding the prosecution’s story. The reasons for why PW1 & PW5 turned hostile may be numerous and as compelling as each other. While the lower courts have considered them to be interested witnesses concerned with the acquittal of the appellant, this Court is unable to ascertain why that is a more likely reason for their non-cooperation than the fact that they believed the appellant was being wrongly accused and that their initial statements were taken under duress. Undoubtedly, it is not incumbent upon this Court, nor possible, to undertake such a factual analysis at this stage. This Court can only observe that further consideration of this point was necessary, especially in light of the guilt of the appellant not tallying easily with her continuing marriage to PW1 and her fostering of two children after the tragic loss of her first born. It is the absence of an evaluation of this nuance on the record that creates a reasonable doubt in our minds regarding appellant’s conviction. When the facts and circumstances of a case are as peculiar as the one before us, the judicial responsibility to scrape the bottom of the barrel and address the specificities head on is even greater. It is in the same vein, that this Court is compelled to observe that there are issues of contention that, having not been adequately addressed, benefit the appellant. [Paras 17-21][375-H; 376-AG]
Ramprasad v. State of Maharashtra, (1999) 5 SCC 30 : [1999] 3 SCR 519; S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233 : [2010] 9 SCR 356; State of Haryana v. Bhagirath & Ors. (1999) 5 SCC 96 : [1999]
3 SCR 529; State of U.P. v. Veer Singh (2004) 10 SCC
117 : [2004] 1 Suppl. SCR 790 – relied on.
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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