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

Appeal (Crl.), 1828-1829 of 2013, Judgment Date: Dec 16, 2015

It  is  a  settled  law  that  dying
  declaration can be the sole basis of conviction and it does  not  require
  any corroboration. But it is equally true  that  dying  declaration  goes
  against the cardinal principle of law that  'evidence  must  be  direct'.
  Thus, dying declaration must be judged and appreciated in  light  of  the
  surrounding circumstances and its weight determined by reference  to  the
  principle governing the weighing of evidence. 

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL APPEAL NOS. 1828 - 1829 OF 2013
 
  STATE OF MAHARASHTRA                                 …..        APPELLANTS
 
                                 VERSUS

  HEMANT KAWADU CHAURIWAL ETC.                        …..        RESPONDENTS



                               J U D G M E N T
  Pinaki Chandra Ghose, J.
1. These appeals, by special leave, have been directed against the  judgment
  and order dated 2.07.2012 passed by  the  High  Court  of  Judicature  at
  Bombay, Nagpur Bench, Nagpur, in Criminal Appeal Nos.53 of 2007 and 70 of
  2007. Criminal Appeal No.53 of 2007 was filed by accused  No.1,  who  was
  husband of the deceased and Criminal Appeal No.70 of 2007  was  filed  by
  accused No.4, who was the  mother-in-law  of  the  deceased.  Both  these
  accused are respondents herein. Apart from the above two  accused,  there
  were three other accused but they were acquitted by the Trial Court while
  the respondents were convicted. In appeal by the  convicted  respondents,
  the High Court quashed and set aside their conviction  and  sentence  and
  absolved them of all the charges.


2.  The facts of the case, as disclosed by the prosecution, are that an  FIR
  was lodged on 21.06.2004 at Ghatanji  Police  Station  after  receipt  of
  dying declaration recorded on 20.06.2004, by Naib Tehsildar  at  Yavatmal
  General Hospital. In the morning  of  20.06.2004,  deceased  Asha  Hemant
  Chauriwal  was  brought  to  Ghatanji  Hospital  for  treatment  of  burn
  injuries.  She  was  later  shifted  to  Yavatmal  Hospital  for  further
  treatment. Her dying declaration was recorded by Naib Tehsildar at around
  5:45 PM  on the same day, following which the above said FIR was  lodged.
  The deceased died on 22.06.2004 due to septicemia  as  a  result  of  88%
  dermo epidermal infected burn injuries.


3.  After investigation, charge-sheet was filed against five accused.  After
  considering the material on  record  and  hearing  the  counsel  for  the
  accused persons, they were charged for offences punishable under  Section
  302 read with Section 34, Section 304-B read with  Section  34  and  also
  under Section 498A of the Indian Penal Code, 1860  (hereinafter  referred
  to as “IPC”). The charges were read over and explained to them.  All  the
  accused persons pleaded not guilty and claimed for trial.


4.  The Trial Court by its judgment and order convicted  accused  Nos.1  and
  4. Accused No.1 was convicted for offences punishable under  Section  302
  as well as Section 498-A read  with  Section  34  of  the  IPC.  However,
  accused No.4 was convicted only for the offence punishable under  Section
  498-A of IPC. Upon appeal by the  two  convicted  respondents,  the  High
  Court by the impugned judgment and order allowed both the  appeals on the
  ground that the prosecution failed to  bring  home  the  guilt  of  these
  accused beyond reasonable doubt and  as  such,  they  were  entitled  for
  benefit of doubt. The High Court quashed and set aside  their  conviction
  and sentence  and  absolved  them  of  all  the  charges.  The  State  of
  Maharashtra is in appeal before us, challenging their acquittal  order.


5.  The prosecution case as accepted by the Trial Court  was  based  on  two
  important evidences: Firstly, the dying declaration made by the  deceased
  to the Naib Tehsildar based upon which the accused husband was  convicted
  for the murder of the deceased. Secondly, the Trial Court relied  on  the
  letters allegedly written by the deceased to her father, which  disclosed
  mental and physical cruelty imputed on the deceased by her in-laws, based
  upon which the Trail Court convicted accused husband and accused  mother-
  in-law for the offence of cruelty.
6.   Learned  counsel  appearing  for  the  appellant   has   made   various
  submissions on the basis of the Trial Court judgment. It was argued  that
  the dying declaration and the evidence of PW1 (Naib  Tehsildar)  and  PW5
  (attending Doctor) along with the certificate of the doctor leads to  the
  conclusion that the dying declaration was truthful and reliable  and  was
  correctly recorded. The  said  dying  declaration  was  contended  to  be
  consistent with the testimony of the witnesses of PW1 and PW5. As against
  the alleged letter the petitioner  counsel  vehemently  argued  that  the
  evidence of PW3 (father of the deceased) and PW4 (mother of the deceased)
  corroborated the  incidence  of  cruelty  committed  upon  the  deceased.
  Further the evidence of PW3 proved that the alleged letters were  written
  by the deceased in her own handwriting.
7.  Learned counsel appearing for  the  respondents/  accused  made  various
  submissions countering the arguments put forward by  the  appellant.  The
  FIR was contended to be delayed  by  about  one  full  day.  The  learned
  counsel pointed out various lapses and  contended  that  the  prosecution
  failed to materially explain  few  facts.  For  instance,  there  was  no
  explanation as to why there was delay  in  lodging  the  FIR;  the  dying
  declaration reached the police station late by about one  full  day;  the
  material witness were not examined as to  explain  such  delay;  material
  recovery at the spot was  not  conducted.  Another  fact  which  was  not
  explained by the prosecution was as to why no action or investigation was
  initiated when the police officers came to know  about  the  death  of  a
  person on 20.06.2004 in the  Yavatmal  Government  Hospital  itself.  The
  respondents' counsel also argued that the alleged letters were not proved
  by the prosecution to be in the own handwriting of the deceased.
8. In our considered opinion, two main arguments have been  advanced  before
  this Court and we shall now examine each and every contention in light of
  the arguments  adduced  before  us.  It  is  a  settled  law  that  dying
  declaration can be the sole basis of conviction and it does  not  require
  any corroboration. But it is equally true  that  dying  declaration  goes
  against the cardinal principle of law that  'evidence  must  be  direct'.
  Thus, dying declaration must be judged and appreciated in  light  of  the
  surrounding circumstances and its weight determined by reference  to  the
  principle governing the weighing of evidence. In the present case,  dying
  declaration was recorded by the Naib Tehsildar  after  she  was  informed
  vide a Memo by the police authorities. However, it is on record that  the
  said police official  who  delivered  the  Memo  was  never  produced  or
  examined before the Court. The Naib Tehsildar deposed  before  the  Court
  that fitness certificate as to mental capacity of the deceased was  taken
  from the  doctor.  However,  the  certificate  nowhere  states  that  the
  deceased was in a fit and stable mental condition at the time  of  making
  the statement. The dying declaration was recorded on 20.06.2004 i.e.  the
  same day of incident but the same was recorded  at  5:45  PM  and  it  is
  undisputed that the incident occurred in the morning at 8:00 AM. The Naib
  Tehsildar specifically deposed that she ordered the blood relation of the
  deceased to be removed from the ward. The dying declaration was signed by
  the Naib Tehsildar PW1, the  doctor  PW5  and  thumb  impression  of  the
  deceased was taken at about 5:55 PM. The dying  declaration  then  formed
  the basis of the FIR on 21.06.2004 at Ghatanji Police  Station,  however,
  there is no explanation as to in whose custody the said crucial piece  of
  evidence was placed for one full day. The prosecution did  not  give  any
  evidence to explain the said delay.


9.  The second issue which is of  paramount  consideration  is  the  alleged
  letters written by the deceased to her father, which were argued to be in
  her own handwriting. PW3 himself deposed that  he  only  produced  a  few
  letters which helped his case. Further, he  himself  testified  that  the
  letters were written by the deceased in her own handwriting as was  known
  to him. The prosecution, however, had a duty to establish the veracity of
  such an important piece of evidence. The prosecution  explained  that  it
  was unable to find the handwriting of the deceased by  any  other  means.
  However, it is not explained as to what steps were taken  to  investigate
  the said evidence in the case. Another important fact which is on  record
  is that while recording the dying  declaration,  Naib  Tehsildar  deposed
  that the deceased was illiterate and the dying declaration was read  over
  and explained to her. These two facts are self-contradictory and severely
  detrimental to the prosecution case which ought to have been explained by
  the prosecution.


10.   Apart from the  above  two  pivotal  facts,  the  testimonies  of  PW3
  (father  of  the  deceased),  PW4  (mother  of  the  deceased)  and   PW5
  (investigating officer) are worth considering. PW3 and PW4  both  deposed
  that the  deceased  used  to  narrate  about  the  incidents  of  cruelty
  committed upon her. Physical beating after the 12th day of  the  marriage
  was deposed, the taunt which the deceased used to face  for  not  cooking
  well, the rationing on edible  items,  etc..  However,  when  the  cross-
  examination was made, these witnesses have not stated these facts to  the
  police and it was only before the Court that such  material  improvements
  were made to support the prosecution case.


11. The Investigating Officer seemed to  have  deliberately  or  negligently
  erred in investigating the case. The case was  of  burn  injuries,  there
  ought to have  effect  of  the  incident  in  the  house,  the  place  of
  occurrence was an important fact, the seizure of surrounding material was
  also important. However, no such efforts were made. Even the  handwriting
  of the deceased was not investigated. In the  light  of  the  above,  the
  defence deposed before the Court that the deceased locked herself in  the
  bathroom, poured kerosene and set herself on fire. It was further  stated
  that the accused had to break open the door and  then  the  deceased  was
  taken to the  hospital.  The  Investigating  Officer  could  have  easily
  located the place of occurrence or  even  a  broken  door  or  lock.  The
  probability here, tilts in favour of  the  accused  that  possibility  of
  suicide being committed by the deceased cannot be ruled out completely.


12.   In our opinion, the two pivotal evidence i.e.  dying  declaration  and
  the alleged letters having not been proved, strikes at the very  root  of
  the prosecution case. We are, therefore, of the view that the High  Court
  rightly pointed out the lacunae in the shabby investigation of the  case.
  Moreover, the prosecution failed to stand its ground and bring  home  its
  case.


13.    Thus, in the light of the above discussion,  we  find  no  compelling
  and substantial reasons to interfere with the judgment passed by the High
  Court. The appeals are, accordingly, dismissed.






                                      …....................................J
                                                      (Pinaki Chandra Ghose)


                                       …...................................J
                                                              (R.K. Agrawal)
  New Delhi;
  December 16, 2015.