-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
JUDGMENT
Vinod versus State of Rajasthan D.B.Criminal Jail Appeal No.366/2006 against the judgment dated 2.7.2005 passed by Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.27/2005.
Date of Judgment :: 3rd January, 2014 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE BANWARI LAL SHARMA Mr.Sudhir Sharma, for the appellant.
Mr.K.R.Bishnoi, Public Prosecutor, for the State...BY THE COURT : (PER HON'BLE MATHUR,J.) This appeal is directed to challenge the judgment dated 2.7.2005 passed by learned Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.27/2005.
By the judgment aforesaid learned Additional Sessions Judge recorded conviction of the accused appellant for an offence punishable under Section 302 Indian Penal Code and sentenced him to undergo life term imprisonment with a fine of Rs.3000/- and further to undergo one year's imprisonment in the event of default in payment of fine.
-2- The factual matrix of the case is that on 18.10.2003 while undergoing treatment at Mahatma Gandhi Hospital, Jodhpur, a statement (Ex.P/6) made by Smt.
Anita was reduced in writing and as per that on the same day at about 11:00 AM she was at her home and her husband Mahendra was also lying there under intoxication.
Younger brother of Mahendra, Vinod at that time came there and poured kerosene on her from a jericane.
Vinod then put her ablaze by a match stick.
She made screaMs.but nobody turned up to save her.
Her mother-in-law was not at home that time.
At about 03:00 PM, her maternals came at the spot of occurrence and carried her to hospital.
On basis of the statement (Ex.P/6).a case for commission of offences punishable under Sections 307 and 324 Indian Penal Code was registered against accused Vinod.
Smt.
Anita during couRs.of treatment died, therefore, the investigation also commenced for the offence punishable under Section 302 Indian Penal Code.
After investigation a police report was filed by the prosecution before the court of learned Additional Chief Judicial Magistrate No.3, Jodhpur and the case being sessions triable was committed to the court of Sessions.
The court framed charge against the accused for commission of an offence punishable under Section 302 Indian Penal Code but the same was denied, thus, trial commenced as desired.
The prosecution supported its case with the aid of the evidence adduced by 10 witnesses and by getting the documents Ex.P/1 to Ex.P/15 and Article-1 exhibited.
While -3- availing opportunity to explain adveRs.circumstances in prosecution evidence the accused stated that deceased Anita was in habit of consuming liquor and on the fateful day she consumed that in excess.
She poured kerosene on her and put herself in flames.
Deceased was a lady of stubborn and quarrelling tendencies.
He also stated that Smt.
Anita died during the couRs.of treatment because of negligence on part of the doctORS.In defence, testimony of Shri Raju (DW-1) was examined.
The trial court after considering the entire evidence available on record held the accused guilty for the charge levelled, thus, convicted and sentenced him accordingly.
The trial court mainly relied upon the statement (Ex.P/6) of Smt.
Anita, her dying declaration (Ex.P/12).the evidence adduced by Shri Amit Sahlot (PW-8).the Magistrate who recorded the dying declaration, and recovery of the empty jericane of kerosene from the spot of occurrence.
While challenging the finding given by learned trial court the submission of Shri Sudhir Sharma, appearing on behalf of the accused appellant, is that the dying declaration said to be made by deceased Smt.
Anita is not at all trustworthy.
According to learned counsel Smt.
Anita in the hospital was said to be taken by her sister Kanta and brother Jagdish and they prompted her to make a false statement, as such, the dying declaration is nto a genuine one.
In alternative, it is also urged that the conviction of the appellant is based only on the dying declaration -4- which has not been corroborated by any other evidence.
The dying declaration is a weak piece of evidence and a severe sentence of life imprisonment could have not been settled on that.
It is further submitted that as per Smt.
Kanta, the incident occurred at 11:00 AM on 18.10.2003 but she was taken to hospital at 03:00 PM.
She died at hospital in late houRs.therefore, the negligence in availing medical assistance is apparent.
Smt.
Anita could have been saved in the event of extending necessary medical aid within a reasonable time.
It is asserted that Smt.
Anita died because of delay in availing medical treatment and negligence on part of the doctors but not due to any act of the accused.
Learned Public Prosecutor, per contra, urged that there is no reason to disbelieve the statement given by Smt.
Anita as per Ex.P/6 and further the dying declaration made by her before a Judicial Officer.
As per learned Public Prosecutor there was no occasion for Smt.
Kanta and Shri Jagdish to tutor the deceased.
The dying declaration made is independent and sufficient to held the accused guilty for an offence punishable under Section 302 Indian Penal Code.
Heard learned counsel for the appellant and learned Public Prosecutor.
We have examined the evidence available in lucid and also considered the rival submissions.
So far as death of Smt.
Anita is concerned, that is admittedly homicidal -5- one in view of the medical evidence adduced.
It is also not in dispute that the conviction of accused Vinod is essentially settled on basis of the dying declaration made by Smt.
Anita.
As a matter of fact, two dying declarations (Ex.P/6 and Ex.P/12) are available on record.
Ex.P/6 is the fiRs.statement made by Smt.
Anita before the investigating officer Shri Kan Singh (P.W.10).Suffice to mention that the statement made by Smt.
Anita, that was reduced in writing by Shri Kan Singh (P.W.10).was obtained at Mahatma Gandhi Hospital, Jodhpur after getting a fitness endorsement by the treating doctor.
As per Shri Kan Singh (P.W.10).on 18.10.2003 he was working as Station House Officer, Police Station Mahamandir.
At about 03.00 PM, mother of deceased Anita came to the police station and conveyed the fact about putting her daughter ablaze.
This witness alongwith Sub-inspector Narayan Singh immediately rushed to the emergency ward of Mahatma Gandhi Hospital, Jodhpur and made a request to the Medical Jurist for examining fitness of the injured.
The Medical Jurist on the letter of request itself mentioned that “Pt is fit to give statement”.This witness then recorded statement of Smt.
Anita at 03.40 PM.
As per the statement given, Smt.
Anita was at her house.
Her husband Mahendra was lying on floor in intoxication and at that time, younger brother of Mahendra came and poured kerosene on her.
She made a scream, but of no consequence.
Vinod then put her ablazed with the aid of matches.
Her mother-in-law was not at home and she remained in room upto 03.00 PM.
Her maternals then came and carried her to the hospital.
A thumb impression of Smt.
Anita was also taken on the statement aforesaid.
-6- The investigating Officer after reducing in writing the statement made by Smt.
Anita as per document Ex.P/6 made a request to the Chief Judicial Magistrate, Jodhpur to get the dying declaration of Smt.
Anita recorded.
The Chief Judicial Magistrate instructed Shri Amit Sahlot, Judicial Magistrate, FiRs.Class, No.5, Jodhpur to record the dying declaration of Smt.
Anita.
The dying declaration made before Shri Amit Sahlot, Judicial Magistrate is available on record as Ex.P/12.
The document Ex.P/12 bears certification from Dr.
R.M.S.Chacha, the treating doctor, to the effect that “Patient is mentally and physically fit to give oral evidence.
Pt is responding to verbal command.”
.
The Judicial Magistrate then in the form of questions and their answers recorded the statement of Smt.
Anita.
Smt.
Anita stated before the Magistrate that at the same day at about 11.00 AM, she was at her house.
She was burnt by her brother-in-law Vinod, with whom she was not in talking terMs.Vinod at the fiRs.instance poured kerosene on her and then with the aid of matches put her in flames.
Vinod was in habit of indulgence in quarrels with her husband under intoxication.
This statement of Smt.
Anita was also recorded on 18.10.2003 at 04.45 PM.
Shri Amit Sahlot (P.W.8).the Judicial Magistrate, while deposing before the court stated that on 18.10.2003 he was working as Additional Civil Judge – cum – Judicial Magistrate No.5, Jodhpur.
At about 04.15 PM, he proceeded for Mahatma Gandhi Hospital, Jodhpur to record dying declaration of Smt.
Anita as per the instructions given by the Chief Judicial Magistrate.
Smt.
Anita was availing treatment in emergency ward of the hospital.
On reaching at hospital, -7- he availed a fitness certificate from the treating doctor and thereafter recorded statement of Smt.
Anita as document Ex.P/12.
This witness further stated that at the time of recording statement, Smt.
Anita was narrating the entire incident in Hindi.
She was not under influence of any person and was also not appearing to be tutored.
The argument of learned counsel for the appellant about veracity of the dying declaration is required to be examined in the evidentiary background noticed above.
As already stated, the argument advanced by learned counsel for the appellant is that the dying declaration is a weak piece of evidence and no conviction could have been settled on basis of such evidence.
Much emphasis is given to the fact that the evidence relating to dying declaration has not been corroborated by any other adequate evidence.
Before coming to the strength of the evidence relating to dying declaration, we would like to mention that Hon'ble Supreme Court long back in the case of Kushal Rao versus State of Bombay reported in AIR1958SC22held that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the accused had no opportunity to testify veracity of the statement by cross- examination.
But once the court come to the conclusion that the dying declaration was truthful version as to the circumstances of the death and culprit of the crime, there is no need of further corroboration.
A corroboration of dying declaration shall be necessary if that suffers from -8- infirmity.
In the same case, it was also held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
Each case is to be determined on its own facts keeping in view the circumstances in which the dying declaration is made.
Hon'ble Supreme Court reiterated the same legal preposition in Atbir versus Government of N.C.T.Of Delhi reported in (2010) 9 SCC1and summed up the factors governing the evidence relating to dying declaration.
Hon'ble Supreme Court held that :- 22.
The analysis of the above decisions clearly shows that : (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not -9- contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.”
.
We are required to determine strength of the evidence relating to dying declaration in the instant matter by applying the law laid down by the Apex Court as noticed above.
As already stated, the investigating officer, Shri Kan Singh (P.W.10) immediately after receiving information about burning of Smt.
Anita rushed to the hospital and after availing a fitness certificate, reduced the statement given by Smt.
Anita in writing.
The investigating officer at the same time made a request to the Chief Judicial Magistrate, Jodhpur to get the dying declaration of Smt.
Anita recorded.
The Chief Judicial Magistrate, accordingly, instructed Shri Amit Sahlot, the Judicial Magistrate, to get the dying declaration of Smt.
Anita recorded.
Shir Amit Sahlot (P.W.8) after receiving instructions from the Chief Judicial Magistrate reached to the hospital and obtained a fitness certificate from the treating doctor.
After getting necessary certification, Shri Amit Sahlot at about 04.45 PM recorded statement of Smt.
Anita by asking questions and getting their answeRs.-10- Shri Amit Sahlot (P.W.8) as well as Shri Kan Singh (P.W.10) in quite unambiguous terms stated before the court that while narrating her version, Smt.
Anita was verbally responding confidently.
Shri Amit Sahlot (P.W.8) further stated that Smt.
Anita was not appearing under any influence or tutored.
The recording of the statements as per Ex.P/6 and Ex.P/12 was made within a period of 1 hour 45 minutes after reaching of Smt.
Anita at hospital.
As a matter of fact, the short time was not even adequate to tutor or influence the lady, who suffered severe burns.
It is also relevant to note that the mother of deceased Smt.
Anita fiRs.went to police station and in that time Shri Jagdish, brother of Smt.
Anita, carried her to the hospital.
This was not time to tutor Smt.
Anita or to influence her against the accused.
We do not find any just reason to for false implication of accused Vinod by deceased Smt.
Anita or even by any of her maternal relatives.
We are, thus, satisfied that the dying declaration made by Smt.
Anita is true and voluntary.
It is sufficient to base the conviction without any further corroboration.
In view of the discussion made above, we do not find any wrong with the conclusion arrived by the trial court.
Accordingly, the appeal is dismissed.
(BANWARI LAL SHARMA),J.
(GOVIND MATHUR),J.
Mathuria KK/ps - Pramod/JrPA