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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 35 OF 2013
Naresh Kumar …..APPELLANT(S)
Vs.
Kalawati and others …..RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant, brother of the deceased, is in appeal
challenging the acquittal of respondents nos. 1 and 2, the sisterin
law and husband of the deceased, of the charge under Sections
498A and 302/34 I.P.C., affirmed by the High Court.
2. The deceased suffered 95% burn injuries on 17.09.1991 at
about 4:30 pm and succumbed in the hospital the next day. There
is no eyewitness account. The case of the prosecution is based on
circumstantial evidence consisting of the dying declaration of the
Signature Not Verified
deceased.
Digitally signed by
Rachna
Date: 2021.03.25
16:40:57 IST
Reason:
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3. The respondents were acquitted as the dying declaration was
held not to have been proved in accordance with law and it did not
inspire confidence. It vacillated between blaming the husband and
the sisterinlaw, coupled with the absence of any certificate by the
Doctor that the deceased was in a fit state of mind when she made
the dying declaration.
4. Shri Rajendra Singhvi, learned counsel for the appellant,
submitted that the deceased suffered a homicidal death by burns in
the matrimonial home within seventeen months of her marriage.
P.W. 13, the SubInspector in the police control room had deposed
that P.W. 20, the constable posted in the hospital had informed that
the deceased had stated that she had been put on fire by her
husband, respondent no.2. The M.L.C. of the deceased recorded at
6:00 pm by Dr. Anant Sinha contained an endorsement that she
was conscious. The deceased had stated to the Doctor that she was
set ablaze by the wife of his elder brother by pouring kerosene oil
upon her while she was making tea. Soon thereafter she made
another statement to P.W. 25, the Assistant SubInspector, in
presence of the said Dr. Anant Sinha, and who also signed the
statement, that her elder sisterinlaw, had poured kerosene over
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her and set her on fire. The deceased was therefore not only fully
conscious, but also in a fit state of mind. Her right toe impression
was taken on her statement as her fingers had suffered burn
injuries. The mere absence of any endorsement in the dying
declaration by the Doctor with regard to fitness of the deceased to
make the statement cannot vitiate its evidentiary value. The fitness
to make the statement was certified by the Junior Resident Doctor.
None of the relatives of the deceased were present at that time.
The mere failure of the prosecution to examine Dr. Anant Sinha
cannot be fatal to disbelieve the dying declaration and acquit the
respondents. The signature of Dr. Anant Sinha has been proved by
P.W. 19, the record clerk of the hospital. The appellant had made
all efforts to have the Doctor summoned. P.Ws. Nos. 3, 4 and 5, the
mother, the sister and the appellant, have also stated that the
deceased had told them in the hospital that she was set on fire by
her sisterinlaw. Respondent Nos. 1 and 2 were having an illicit
affair and they considered the deceased as an obstruction because
she was objecting to the same. The respondents have wrongly been
given the benefit of doubt that the deceased had committed suicide.
The respondents have also wrongly been acquitted of the charge
under Section 498A. Reliance was placed upon State of
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Rajasthan vs. Parthu (2007) 12 SCC 754, Sukanti Moharana vs.
State of Orissa (2009) 9 SCC 163 and Heeralal vs. State of
Madhya Pradesh (2009) 12 SCC 671 in support of the dying
declaration.
5. Shri Ramesh Gupta, learned Senior Counsel appearing for
respondent nos.1 and 2 submitted that according to the M.L.C., the
deceased was only stated to be conscious. There is no evidence
that she was fully oriented with a fit state of mind to make a dying
declaration. There is no endorsement by the said Dr. Anant Sinha
that the deceased was in a fit state of mind to make the declaration
and that he was present during recording of the same. The
deceased initially named her husband alone as the person who set
her on fire. There was no reference to the sisterinlaw or any
demand for dowry. Subsequently she stated that she had been
brought to the hospital by her husband and that she had been set
on fire by her sisterinlaw. Initially the deceased did not name
respondent no.1 to the Doctor at the time of M.L.C., but only stated
that she was set on fire by her sisterinlaw. The husband lived
along with his three brothers and their wives. Subsequently she
named respondent no.1 in her statement to P.W. 25. The
respondents had taken the defence that the deceased suspected
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promiscuous relationship between them and was also frustrated by
her inability to conceive and therefore committed suicide by setting
herself on fire. The view taken by two courts being a reasonably
possible view does not call for interference by this Court. No one
has appeared on behalf of the Staterespondent no.3.
6. We have considered the submissions on behalf of the parties
and have also perused the evidence available on the record.
Though the discretionary jurisdiction of this Court under Article
136 of the Constitution is very wide, it has been a rule of practice
and prudence not to interfere with concurrent finding of facts ar
rived at by two courts, by a reappreciation of evidence, to arrive at
its own conclusion, unless there has been complete misappreciation
of evidence, or there is gross perversity in arriving at the findings,
causing serious miscarriage of justice. If the view taken by two
courts is a reasonably possible view, this Court would be reluctant
to interfere with a concurrent order of acquittal. In State of Goa
vs. Sanjay Thakran Ors., (2007) 3 SCC 755, it was observed:
“16. From the aforesaid decisions, it is apparent that
while exercising the powers in appeal against the or
der of acquittal the court of appeal would not ordinar
ily interfere with the order of acquittal unless the ap
proach of the lower court is vitiated by some manifest
illegality and the conclusion arrived at would not be
arrived at by any reasonable person and, therefore,
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the decision is to be characterised as perverse. Merely
because two views are possible, the court of appeal
would not take the view which would upset the judg
ment delivered by the court below. However, the ap
pellate court has a power to review the evidence if it is
of the view that the view arrived at by the court below
is perverse and the court has committed a manifest
error of law and ignored the material evidence on
record. A duty is cast upon the appellate court, in
such circumstances, to reappreciate the evidence to
arrive at a just decision on the basis of material
placed on record to find out whether any of the ac
cused is connected with commission of the crime he is
charged with.”
7. We shall now consider the facts of the present case in the
background of the aforesaid enunciation of the law, to examine if
the impugned orders call for interference by us, or not. The
deceased was married to respondent no. 2 about 1½ years ago. She
suspected a promiscuous relationship between the respondents.
The deceased even after 1½ of marriage was unable to conceive. A
probable defence has been taken that she committed suicide out of
frustration.
8. The deceased had suffered 95% burn injuries at home on
17.09.1991 at about 4:30 pm while making tea. She was brought
to Safdarjung Hospital at 6:00 pm. She is said to have initially told
the police at the hospital that she had been set on fire by her
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husband. The deceased was examined by the said Dr. Anant Sinha
at about 6:00 pm and prepared her MLC. She is stated to have told
him that she had been set on fire by the wife of her husband’s elder
brother while making tea. The MLC records her as being fully
conscious. It is signed only by the Doctor who has not been
examined. The deceased is then stated to have made a dying
declaration before P.W. 25 that she was set on fire by respondent
no.1 by pouring kerosene oil while she was making tea and that her
husband had brought her to the hospital. It bears her right toe
impression as her hands were burnt. The statement bears the
signature of Dr. Anant Sinha. His signature has been proved by
P.W. 19. But it does not bear any endorsement by the Doctor with
regard to his presence during the recording of the same and the fit
state of mind by the deceased to make the statement. P.W. nos. 3
and 4 have stated that the deceased told them that she was set on
fire by respondent no.1. P.W. 5 has stated that both the
respondents have killed his sister. He then states that the deceased
had told him she was set on fire by respondent no.1.
9. A dying declaration is admissible in evidence under Section 32
of the Indian Evidence Act, 1872. It alone can also form the basis
for conviction if it has been made voluntarily and inspires
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confidence. If there are contradictions, variations, creating doubts
about its truthfulness, affecting its veracity and credibility or if the
dying declaration is suspect, or the accused is able to create a
doubt not only with regard to the dying declaration but also with
regard to the nature and manner of death, the benefit of doubt shall
have to be given to the accused. Therefore much shall depend on
the facts of a case. There can be no rigid standard or yardstick for
acceptance or rejection of a dying declaration.
10. The first statement of the deceased made to P.W. 13 is based
on hearsay as deposed by P.W. 20 that she was set on fire by
respondent no.2. There is no reference to respondent no.1 in this
statement and neither has she said anything about dowry demand.
The next statement of the deceased, blaming respondent no.1 alone
does not name respondent no1. It is not signed by anybody and the
Doctor who recorded the statement has not been examined. Merely
because his signature has been identified by P.W. 19 cannot
establish the correctness of its contents. The next statement of the
deceased has been recorded by P.W. 25, blaming respondent no.1
alone without any allegation against respondent no.2, and on the
contrary states that she was brought to the hospital by respondent
no.2. It again does not disclose any dowry demand.
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11. P.W. 25 who recorded the dying declaration does not state that
the deceased was in a fit state of mind to make the statement. He
states that the Doctor had certified fitness of mind of the deceased,
when the dying declaration itself contains no such statement. In
cross examination he acknowledges that the fitness of the deceased
was certified by a resident junior doctor separately but whose
signature and endorsement is not available on the dying
declaration. At this stage it is relevant to notice the statement of
P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in
his presence and that at times doctors would come and put their
signatures in the record room.
12. In Paparambaka Rosamma and others vs. State of
Andhra Pradesh, (1999) 7 SCC 695, distinguishing between
consciousness and fitness of state of mind to make a statement, it
was observed:
“9. It is true that the medical officer Dr K. Vishnupriya
Devi (P.W. 10) at the end of the dying declaration had
certified “patient is conscious while recording the state
ment”. It has come on record that the injured Smt
Venkata Ramana had sustained extensive burn injuries
on her person. Dr P. Koteswara Rao (P.W. 9) who per
formed the postmortem stated that the injured had
sustained 90% burn injuries. In this case as stated ear
lier, the prosecution case solely rested on the dying
declaration. It was, therefore, necessary for the prose
cution to prove the dying declaration as being genuine,9
true and free from all doubts and it was recorded when
the injured was in a fit state of mind. In our opinion,
the certificate appended to the dying declaration at the
end by Dr Smt K. Vishnupriya Devi (P.W.10) did not
comply with the requirement inasmuch as she has
failed to certify that the injured was in a fit state of
mind at the time of recording the dying declaration.
The certificate of the said expert at the end only says
that “patient is conscious while recording the state
ment”. In view of these material omissions, it would not
be safe to accept the dying declaration (Ex. P14) as
true and genuine and as made when the injured was in
a fit state of mind. In medical science two stages
namely conscious and a fit state of mind are distinct
and are not synonymous. One may be conscious but
not necessarily in a fit state of mind. This distinction
was overlooked by the courts below.”
13. In the facts and circumstances of the present case,
considering that the statements of the deceased have vacillated,
there is no evidence about the fitness of mind of the deceased to
make the dying declaration including the presence of the Doctor,
the veracity and truthfulness of the dying declaration remains
suspect. It would not be safe to simply reject the probable defence
of suicide, to reverse the acquittal and convict the respondents.
14. Parthu (Supra) is distinguishable on its facts. Despite the
absence of a certificate of fitness of state of mind on the dying
declaration, the Doctor was examined as a witness and proved the
fitness of the state of mind.
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15. Sukanti (supra) is again distinguishable on its own facts as
follows:
“25. Further, though no specific endorsement has
been made on the dying declaration but there is
contemporaneous evidence in the form of Ext. 9/1
which makes it clear that the Doctor recording the
dying declaration had recorded that the patient was
oriented to time and place and mentally clear at the
time of recording of the dying declaration.
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35. The Doctor who recorded the dying
declaration was examined as a witness and he had in
his deposition categorically stated that the deceased
while making the aforesaid statement was conscious
and in a fit mental condition to make such a
statement. The aforesaid position makes it therefore
clear that the aforesaid dying declaration could be
relied upon as the same was truthfully recorded and
the said statement gave a vivid account of the
manner in which the incident had taken place.”
16. In Heeralal (supra), noticing the discrepancies in the two
dying declarations, it was held that the conviction could not be
founded upon the dying declaration.
17. The appeal is, therefore, dismissed.
………………………J.
(NAVIN SINHA)
………………………J.
(KRISHNA MURARI)
NEW DELHI,
MARCH 25, 2021
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