Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1236 of 2010, Judgment Date: Jul 11, 2016

10)   The courts below have to be extremely careful when they  deal  with  a
dying declaration as the maker thereof  is  not  available  for  the  cross-
examination which  poses  a  great  difficulty  to  the  accused  person.  A
mechanical approach in relying upon a dying declaration just because  it  is
there is extremely dangerous. The court has to examine a  dying  declaration
scrupulously  with  a  microscopic  eye  to  find  out  whether  the   dying
declaration is voluntary, truthful, made in a conscious state  of  mind  and
without being influenced by the relatives present or  by  the  investigating
agency who may be interested in the success of investigation  or  which  may
be negligent while recording the dying declaration.  In the  case  on  hand,
there are two sets  of  evidence,  one  is  the  statement/declaration  made
before the police officer and the Executive Magistrate and the other is  the
oral dying declaration made by  the  deceased  before  her  father  who  was
examined as PW-1.  On a careful scrutiny of  the  materials  on  record,  it
cannot be said that there were contradictions in the statements made  before
the police officer and the Executive  Magistrate  as  to  the  role  of  the
respondent  herein  in  the  commission  of  the   offence   and   in   such
circumstances, one set of evidence which is more  consistent  and  reliable,
which in the present case being one in  favour  of  the  respondent  herein,
requires to be accepted and conviction could  not  be  placed  on  the  sole
testimony  of  PW-1.    A  number  of  times  the  relatives  influence  the
investigating  agency  and  bring  about  a  dying  declaration.  The  dying
declarations  recorded  by  the  investigating  agencies  have  to  be  very
scrupulously examined and the court must remain alive to all  the  attendant
circumstances at the time when the dying declaration comes  into  being.  In
case of more than one dying declaration,  the  intrinsic  contradictions  in
those dying declarations are extremely important. It cannot be that a  dying
declaration which supports the prosecution alone can be accepted  while  the
other innocent dying declarations have to be rejected. Such a trend will  be
extremely dangerous. However, the courts below are fully entitled to act  on
the dying declarations and make them the  basis  of  conviction,  where  the
dying declarations pass all the above tests.

 

11)   The court has to weigh all the attendant  circumstances  and  come  to
the independent finding whether the dying declaration was properly  recorded
and whether it was voluntary and truthful. Once the court is convinced  that
the dying declaration is so recorded, it may be acted upon and can  be  made
a basis of conviction. The courts must  bear  in  mind  that  each  criminal
trial is an individual aspect. It may differ from the other trials  in  some
or the other respect and, therefore, a mechanical approach  to  the  law  of
dying declaration has to be shunned.
The  conviction  basing
reliance upon the oral dying declaration made to the father of the  deceased
is not reliable and such a declaration can  be  a  result  of  afterthought.
13)   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 the 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.
 
 

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 1236 OF 2010


State of Gujarat                                         .... Appellant(s)

                               Versus

Jayrajbhai Punjabhai Varu                               .... Respondent(s)



                         J U D G M E N T


R.K. Agrawal, J.

1)    This appeal has been  filed  against  the  judgment  and  order  dated
16.07.2009 passed by the High Court of  Gujarat  at  Ahmedabad  in  Criminal
Appeal No. 976 of 2003 whereby the High Court allowed the  appeal  filed  by
the respondent herein  against  the  judgment  and  order  dated  30.06.2003
passed by the Court of Sessions Judge, Amreli in Sessions Case No.  20/2003.

2)    Brief facts:
(a)   Rekhaben (since deceased) was married to  Jayrajbhai  Punjabhai  Varu-
the respondent  herein  and  was  residing  at  Gopalgram,  Taluka  Chalala,
Gujarat along with her in-laws, viz.,  Punjabhai  Lakhabhai  Varu-father-in-
law, Manuben Punjabhai-mother-in-law and  Ramjuben  Punjabhai-sister-in-law.

(b)   On 10.03.2003, Rekhaben  was  admitted  to  the  Government  Hospital,
Amreli with 90 per cent burn injuries.  A  First  Information  Report  (FIR)
being No. 7/03 got registered under Section 307 of the  Indian  Penal  Code,
1860 (in short ‘the IPC’) wherein she stated that on 10.03.2003, at about  5
o’clock in the morning, when all other family members were sleeping  in  the
house, an unknown person came near her and told her  that  he  had  come  to
take her.  By saying so, he took her into the kitchen,  poured  kerosene  on
her and by lighting the matchstick set her on fire and went  away  from  the
place and, consequently, she started burning in flames. She further  gave  a
statement that the unknown person was an  outsider  who  was  wearing  white
clothes.  On hearing her cries,  other  family  members  also  woke  up  and
admitted her in the hospital at Amreli.  It may be mentioned here  that  the
above said FIR was registered on the basis of the  statement  given  by  the
deceased herself on 10.03.2003, at about 7:30 a.m., in the hospital to  Shri
Bhikhu Karsanbhai, P.S.O., Amreli City which was  treated  as  a  complaint.
In the said statement, the thumb impression of Rekhaben  was  identified  by
Vala Jaskubhai Suragbhai – the father of the deceased.
(c)   On the very same day, at 8:25 a.m., she made a  statement  before  the
Executive Magistrate,  Amreli  and  narrated  the  whole  incident.  In  the
afternoon, Rekhaben  succumbed  to  her  injuries.   On  the  basis  of  the
statement given by the deceased, Jayrajbhai  Punjabhai  Varu-the  respondent
herein, Punjabhai Lakhabhai Varu-father-in-law, Manuben Punjabhai-mother-in-
law and Ramjuben Punjabhai-sister-in-law  were  arrayed  as  accused  and  a
chargesheet was filed under Sections 302, 201 and 34  of  the  IPC  and  the
case was committed to the Court of Sessions and numbered  as  Sessions  Case
No. 20/2003.
(d)   The Sessions Judge, Amreli, vide  order  dated  30.06.2003,  convicted
the husband of the deceased under Section 302 of the IPC and  sentenced  him
to suffer rigorous imprisonment for life while acquitting the other  accused
persons.
(e)   Being aggrieved, the respondent herein filed  a  Criminal  Appeal  No.
976 of 2003 before the High Court of Gujarat.  The  Division  Bench  of  the
High Court, vide order dated 16.07.2009, allowed the appeal.
(f)   Aggrieved by the order dated 16.07.2009 acquitting the husband of  the
deceased of all the charges, the State has  filed  this  appeal  by  way  of
special leave before this Court.
3)    Heard learned counsel for the parties and perused the record.
4)    Learned counsel for the respondent-State submitted that the  relations
between the deceased  and  the  respondent  herein  were  strained  and  the
deceased was compelled to withdraw from her matrimonial home several  times.
 The deposition of Jaskubhai Suragbhai (PW-1)-father of the  deceased  shows
that she was subjected to torture, both  mental  and  physical,  before  she
succumbed  to  the  injuries.   It  was  contended  that  the  deceased  was
compelled to give false and wrong statement/declaration  before  the  police
as well as before the Executive Magistrate by the accused.  It  was  further
contended that the accused persons caused physical cruelty to  the  deceased
during the intervening night of the incident and poured  kerosene  upon  her
and set her on fire.  The statement given by P.W.1  is  consistent  and  his
evidence is getting absolute corroboration with the circumstantial  evidence
which is available on record.  His evidence remained unimpeached during  the
course of the trial and there is no reason for which  his  evidence  can  be
side lined.    Learned counsel for the State vehemently contended  that  the
deceased Rekhaben died under mysterious circumstances  in  the  house  which
was occupied and possessed by the accused person for which the  accused  has
not offered reasonable explanation, therefore, the presumption  as  provided
under Section 114 of the Indian Evidence Act is required  to  be  drawn  and
such presumption has not been rebutted by offering reasonable explanation.

5)    Learned counsel for the respondent contended that the prosecution  has
relied upon the testimony of PW-1 – father of the deceased who  had  claimed
that the deceased narrated the whole incident to him  but  he  informed  the
same to the police after performing the  cremation  ceremony  and  there  is
every opportunity for possible  concoction  of  a  false  version.   Learned
counsel further submitted that  the  deceased  had  not  named  any  of  the
accused in her dying declaration  which  was  recorded  by  two  independent
witnesses on two different occasions and in both the dying declarations  she
had stated that the person who poured the kerosene and set her on  fire  was
a stranger and not known to her.  Learned  counsel  further  submitted  that
Dilubhai Valerabhai- a close relative of PW-1, who accompanied  him  to  see
the deceased in the hospital has denied having  any  conversation  with  the
deceased.  It was  further  submitted  that  the  evidence  adduced  by  the
prosecution are not worth acceptance and are  not  sufficient  to  draw  the
inference of guilt of the accused, therefore, the respondent  herein  should
be exonerated of the charges leveled against him.
6)    It is evident from the material on record that  Rekhaben  was  removed
to the hospital with  burn  injuries  and  her  statement  was  recorded  by
Bhikhubhai Karsanbhai Parmar (PW-6),  who  was  discharging  duty  with  the
Police at the hospital.  The dying declaration of the deceased was  recorded
by the Executive Magistrate after following the due process of law. In  view
of the  above,  it  is  relevant  to  quote  the  relevant  portion  of  the
statements given by the deceased before the police authorities  as  well  as
the Executive Magistrate which are as under:-
                             “ Date : 10.03.2003

            My name is Rekhaben w/o Jayrajbhai Pujbhai Varu, Kathi Darbar by
      caste, aged 25 years, occupation: household,  Res.  Gopalgram,  Taluka
      Chalala.

            On being asked in person at Armeli illegible I state that  I  am
      residing at above mentioned address with my mother in law,  father  in
      law and husband and my husband is doing work  of  cutting  diamond  at
      illegible. My parents are residing at Vandiya village and name  of  my
      father is Jasubhai Vala and I was married before about two years  from
      today. I have no child.

            Today in the early morning at about Five O’ clock the members of
      my family were sleeping outside during that  an  unknown  person  came
      near me and he woke me up and told me that wake up I have come to take
      you, by saying so he took me in kitchen and poured kerosene on me  and
      kindled match and this unknown outsider person went away. This unknown
      person was outsider and he had put on white cloths and I  was  started
      burning on my whole body, therefore I was shouting so  persons  of  my
      house woke up and they got  me  admitted  here  in  Amreli  Government
      hospital here. Here my treatment is continued. I am conscious. I  have
      no harassment of my mother in law, father in law or my husband.

            The said incident has taken place  today  in  early  morning  at
      about Five O’ clock any outsider unknown person got  me  woke  up  and
      took me in kitchen where he poured kerosene lying  there  and  kindled
      and threw match on me and this  unknown  person  went  away  and  this
      person was outsider.

           Such my fact as stated by me is true and correct.

                                                Before
                                          Sd/- Bhikhu Karsanbhai
                                          P.S.O. Amreli City”


         “BEFORE THE EXECUTIVE MAGISTRATE, AMRELI
      Name of Hospital : Civil Amreli Ward No. Burns Bed No. 33
      ____________________________________________________________
      1.    What is your name : Rekhaben Jayrajbhai

      2.    Name of father/husband : Jayrajbhai Punjabhai

      3.    Your age : 25

      4.    Residence/address : Gopalgram Tal. Dhari.

      5.    At present where are you? : Civil Hospital Amreli.

      6.    What has happened to you?

      7.    How it was happened? All were  sleeping  in  house.  An  unknown
      person came and he made me woke up from place where I was sleeping and
      he brought me in kitchen and he poured liquid  in  box  lying  in  the
      kitchen on me and unknown person kindled match stick and threw  on  me
      and ran away. He was a male person and he was a outsider person.


      8.    At what time incident took place? : The incident has taken place
      today in early morning. I don’t remember time.
      9.    At what place this incident has taken place? : Gopal gram at  my
      house.
      10.   Who were present at place of incident? : All members of my house
      were sleeping.
      11.   Who brought you at clinic/hospital? My  mother  in  law  and  my
      husband’s elder brother etc. brought me.
      12.   Whether you have any physical difficulty? : No
      13.   If you have to say anything further then say? : I  have  nothing
      further to say.
      14.     The   date   and   time    of    starting    of    D.D.    and
                             completion    of    D.D.    :     8.25     A.M.
                                                            8.35 A.M.
      10.3.2003.
      There is no presence of police at the time when  above  deposition  is
      recorded.

      Sd/- illegible
      The patient is conscious and
      D.D. is recorded before me.
      Sd/- Medical Officer, Amreli 8.25 to 8.35 A.M.  D.D.  recorded  in  my
      presence.

                                       Sd/- Thumb impression of  right  leg
                                       of
                                       Rekhaben Jayraj as  both  hands  are
                                       burnt the thumb impression of  Right
                                       leg of Rekhaben is taken.
      Sd/- Executive Magistrate, Amreli.”

7)    It is  relevant  to  point  out  here  that  in  both  the  statements
mentioned above, the deceased has  not  named  her  husband  or  his  family
members.  Though when a specific question was put to her that  what  exactly
happened on that night, she narrated that on 10.03.2003, at about 5  o’clock
in the morning, when all other family members were sleeping  in  the  house,
an unknown person came near her and took her into the kitchen.  She  further
narrated that he poured kerosene on her and set her on fire  and  went  away
from the place. She further gave a statement that the unknown person was  an
outsider who was wearing white clothes.  On hearing her cries, other  family
members also woke up and admitted her in the hospital at Amreli.   There  is
no denying the fact that the deceased was in her  matrimonial  home  at  the
time of the incident and all other family members were also present  in  the
house at the relevant time.  In both the dying declarations recorded by  two
independent witnesses after following the due process of  law,  she  gave  a
statement that the person was unknown and there was no  involvement  of  her
in-laws or husband.  Both the statements are  consistent  and  there  is  no
contradiction as to the role of the respondent herein.  From  a  perusal  of
the statements made before the Executive Magistrate as well  as  the  police
officer, it becomes  very  clear  that  there  was  no  involvement  of  the
respondent herein in the commission of offence.
8)    On the other hand, learned counsel for the State placed reliance  upon
the deposition  of  the  father  of  the  deceased  who  deposed  about  the
involvement of  respondent  herein  and  in-laws  of  the  deceased  in  the
commission of offence.  It is relevant to quote the relevant portion of  his
deposition  on  the  basis  of  which  the  Sessions  Court  convicted   the
respondent herein which is as under:-
      “4.   On dated 10th of Fagan month in the early morning a  phone  call
      came at house of my uncle’s son Dilubhai that Rekhaben has been burnt,
      therefore I and my uncle’s son Dilubhai  and Manglubhai went at Amreli
      Civil Hospital. Rekhaben was admitted in the  hospital  and  treatment
      was continued. Rekhaben was burnt on  whole  body.  I  could  not  see
      therefore I went outside. After I felt something better I and Dilubhai
      again went before my daughter, Rekhaben and asked her that  what  this
      happened so Rekhaben told me that I have not done it. Rekhaben told me
      that after giving torture for whole night thereafter she was taken  in
      kitchen and after pouring kerosene  she  was  enlightened  with  match
      stick. Jayrajbhai made Rekhaben woke  up  and  took  her  in  kitchen.
      Rekhaben has not said as to who poured  kerosene.  Except  this  there
      were no other  persons  present  there.  Rekhaben  had  not  asked  me
      anything as to who enlightened match stick. When I asked Rekhaben  she
      stated that except those people no other  person  was  present  there.
      Rekhaben told me that department came at that time I stated such  that
      person who enlightened match stick had put  on  white  cloth  and  was
      unknown person,  because  accused  Punjbhai,  Jarajbhai,  Manuben  and
      Ramjuben had given such threat that her only one brother will  not  be
      let live, therefore, she has not given real  fact  before  department.
      When Rekhaben had such talk with  me  at  that  time  my  uncle’s  son
      Dilubhai was present there. During the treatment at  2.15  PM  in  the
      noon Rekhaben has expired. As Rekhaben was  burnt  therefore  she  has
      expired.”

      Cross examination by Advocate Shri G.A. Parikh for the accused.


      “6.   I and Dilubhai reached at hospital at eight to eight  thirty  o’
      clock in the morning. It is not true that  at  Seven  O’clock  in  the
      morning I and Dilubhai reached at Civil Hospital, Amreli. It  is  true
      that in my statement name of Manglubhai is not written.


      7.    When I reached at hospital at  that  time  police  already  came
      there. I don’t know that whether police recorded complaint of Rekhaben
      in my presence or not. It is true that I identified  thumb  impression
      of Rekhaben on the  say  of  police.  That  thumb  impression  was  of
      Rekhaben. Mamlatdar went inside to record statement. It is true that I
      identified thumb impression of Rekhaben  on  that  statement.  When  I
      reached near Rekhaben in the hospital at that time…. .was  burnt.  The
      glucose bottles were not injected to her. She had thirst of water. She
      could not bend lips. I caused her drink water and caused her  eat  ice
      cream. It is not true that Rekhaben had totally no talk with me.”

9)    Learned Sessions Judge, on  the  basis  of  the  deposition  of  PW-1,
convicted the respondent herein for the offence under  Section  302  of  the
IPC.  PW-1 deposed before the court that  the  deceased  informed  him  that
after giving her torture for the whole night, she was taken to  the  kitchen
by the respondent herein and after pouring kerosene on her,  matchstick  was
lighted.  He further deposed that except the  respondent  herein,  no  other
person was present at the time of the  incident.   It  was  further  deposed
that the respondent herein threatened the deceased of dire  consequences  in
case of disclosure of the incident. In a nutshell, PW-1  deposed  about  the
cruelty and ill behavior meted out to the deceased at her matrimonial  home.

10)   The courts below have to be extremely careful when they  deal  with  a
dying declaration as the maker thereof  is  not  available  for  the  cross-
examination which  poses  a  great  difficulty  to  the  accused  person.  A
mechanical approach in relying upon a dying declaration just because  it  is
there is extremely dangerous. The court has to examine a  dying  declaration
scrupulously  with  a  microscopic  eye  to  find  out  whether  the   dying
declaration is voluntary, truthful, made in a conscious state  of  mind  and
without being influenced by the relatives present or  by  the  investigating
agency who may be interested in the success of investigation  or  which  may
be negligent while recording the dying declaration.  In the  case  on  hand,
there are two sets  of  evidence,  one  is  the  statement/declaration  made
before the police officer and the Executive Magistrate and the other is  the
oral dying declaration made by  the  deceased  before  her  father  who  was
examined as PW-1.  On a careful scrutiny of  the  materials  on  record,  it
cannot be said that there were contradictions in the statements made  before
the police officer and the Executive  Magistrate  as  to  the  role  of  the
respondent  herein  in  the  commission  of  the   offence   and   in   such
circumstances, one set of evidence which is more  consistent  and  reliable,
which in the present case being one in  favour  of  the  respondent  herein,
requires to be accepted and conviction could  not  be  placed  on  the  sole
testimony  of  PW-1.    A  number  of  times  the  relatives  influence  the
investigating  agency  and  bring  about  a  dying  declaration.  The  dying
declarations  recorded  by  the  investigating  agencies  have  to  be  very
scrupulously examined and the court must remain alive to all  the  attendant
circumstances at the time when the dying declaration comes  into  being.  In
case of more than one dying declaration,  the  intrinsic  contradictions  in
those dying declarations are extremely important. It cannot be that a  dying
declaration which supports the prosecution alone can be accepted  while  the
other innocent dying declarations have to be rejected. Such a trend will  be
extremely dangerous. However, the courts below are fully entitled to act  on
the dying declarations and make them the  basis  of  conviction,  where  the
dying declarations pass all the above tests.


11)   The court has to weigh all the attendant  circumstances  and  come  to
the independent finding whether the dying declaration was properly  recorded
and whether it was voluntary and truthful. Once the court is convinced  that
the dying declaration is so recorded, it may be acted upon and can  be  made
a basis of conviction. The courts must  bear  in  mind  that  each  criminal
trial is an individual aspect. It may differ from the other trials  in  some
or the other respect and, therefore, a mechanical approach  to  the  law  of
dying declaration has to be shunned.

12)   On appreciation of evidence on record, we are of the  considered  view
that the dying declarations of the deceased recorded by the  police  officer
as well as the Executive Magistrate are fully corroborated and there  is  no
inconsistency  as  regards  the  role  of  the  respondent  herein  in   the
commission of offence.  From a perusal of the statement  recorded  by  Bhiku
Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased)  which
had been identified by her father-Sri Vala Jaskubhai Suragbhai as  also  his
cross-examination in which he admitted that police had  already  come  there
and he had identified her thumb impression and Mamlatdar had gone inside  to
record statement, there is no reason as to why Rekhaben would give names  of
her husband and her in-laws in the alleged statement given  to  her  father.
A dying declaration is entitled to  great  weight.   The  conviction  basing
reliance upon the oral dying declaration made to the father of the  deceased
is not reliable and such a declaration can  be  a  result  of  afterthought.
This is the reason the Court also insists that the dying declaration  should
be of such a nature as to inspire  full  confidence  of  the  Court  in  its
correctness. The Court has to be on guard that  the  statement  of  deceased
was not as a result of tutoring, prompting or a product of imagination.  The
Court must be further satisfied that the deceased was  in  a  fit  state  of
mind after a clear opportunity to observe and identify the assailants.  Once
the Court  is  satisfied  that  the  declaration  was  true  and  voluntary,
undoubtedly, it can base its conviction without any  further  corroboration.
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.  The  rule  requiring  corroboration  is  merely  a  rule   of
prudence.

13)   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 the 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.

14)   After considering the evidence and the judgments of the courts  below,
we are of the opinion that the evidence available on  record  and  the  sole
evidence of the father of the deceased as compared to the dying  declaration
do not inspire confidence in the mind of this Court to  make  it  the  basis
for the conviction of the respondent-accused. Hence, the  appeal  fails  and
is accordingly dismissed.

                                                        ..…………….………………………J.

                                                        (KURIAN JOSEPH)


                                                      .…....…………………………………J.

                                                        (R.K. AGRAWAL)

NEW DELHI;
JULY 11, 2016.