* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: March 24, 2014 + CRL.A. 316/1998 NARESH GUPTA ..... Appellant Through: Mr. Anurag Jain, Advocate Versus STATE (NCT OF DELHI) Through ..... Respondent Mr. Sunil Sharma, APP for the State CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENTKAILASH GAMBHIR, J.
1. Challenge in the present appeal is the impugned judgment dated and order on sentence dated 30.07.1998 passed by the learned Additional Sessions Judge whereby the appellant has been held guilty for committing an offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as IPC) and sentenced to undergo life imprisonment together with fine of Rs.5,000/- and in default of payment of fine, the appellant was directed to further undergo RI for a period of six months.
2. The case of the prosecution in brief, can be summarized as under:On 24.06.1984 at about 6.55 p.m., SI Ashutosh was handed over a copy of the DD Report No.11-A to the effect that a duty constable informed from the hospital that one Smt. Anju W/o Naresh Gupta aged 28 years , r/o Dilshad Garden has been admitted in the hospital in a burnt condition . For enquiry SI Ashutosh along with Const. Tejpal Singh went to the residence of the deceased at Dilshad Garden but they could not trace the house. He then proceeded to the hospital and collected the medico legal certificate of the deceased. Over there he came to know that the accused Naresh Gupta has been discharged after his burns having attended to and bandaged. The deceased was lying admitted in the burns ward. As per the statement recorded by the SI, the deceased was about to prepare tea and when she was piercing the pin in the stove, the kerosene oil gushed out suddenly and her sari being nylon caught fire. She was taken to the hospital by her husband. SI Ashutosh reached at the spot and sealed the available articles in a parcel. The victim died on 26.06.1984. After receiving the post mortem report as well as the CFSL report and recording the statements of the relatives of the deceased, who disclosed about the conduct of the husband of the deceased that he used to torture and harass her, the police filed a challan against the accused for the offence under section 302 IPC, in the court of the Magistrate. The learned Magistrate committed the case for trial. Accused entered into a plea of not guilty and claimed trial.
3. To support its case, the prosecution had examined 16 witnesses. After the evidence of the prosecution was recorded, the statement of the accused under Section 313 Cr. P.C. was recorded wherein he pleaded his innocence and alleged to have been implicated falsely. The accused produced two witnesses in his defence evidence.
4. Addressing arguments on behalf of the appellant, Mr. Anurag Jain, counsel for the appellant submitted that first and second dying declaration made by the deceased immediately after her admission in hospital on 24th June 1984 are reliable and authentic and there can be no reason to disbelieve them. Counsel for the appellant further submitted that first dying declaration was recorded by the SI and second by SDM and both were recorded after she was declared fit by the doctor of the hospital. Counsel for the appellant further argued that in the said two dying declarations, the deceased was very categorical in stating that she caught fire accidently when at the time of preparing tea in her house, while using pin in the stove, suddenly a lot of kerosene oil gushed out and her disco saree caught fire. She was further categorical in stating that she was brought by her husband in the hospital who tried to extinguish fire. She was also categorical in stating that she caught fire accidentally and nobody is to be blamed. Counsel for the appellant further argued that there is complete consistency in the first two dying declarations made by the deceased and nothing mentioned as such gives a reason to disbelieve these two dying declarations. Counsel for the appellant further submitted that there is also no reason as to why a police official and a judicial magistrate would record the false statement of the deceased. Counsel for the appellant also argued that as against the first two dying declarations, the third dying declaration made by the deceased is totally unreliable and doubtful and cannot be believed. Counsel further outlined the following grounds to impinge upon the third dying declaration of the deceased:
“(a) It is a result of tutoring by PW-1 and PW-3. PW-1 admit in her cross examination that the statement of the deceased on 25.6.1984 (3rd dying declaration) was recorded in her presence.
5. b) Even PW-3 has stated that on 24.06.1984, the deceased had told him that she sustained injuries while working on stove. c) Third dying declaration has thumb impression of the deceased, whereas in first and second dying declarations there is endorsement of doctors that thumb impression of Anju cannot be taken. d) She had sustained 100% burns, impossible to make such a minute and detailed statement. e) Her medical condition was very serious. Impossible to make detailed dying declaration on the following date i.e. 25.06.1984. f) PW-3 was working in the same hospital as doctor. He was a relative of the deceased. He was asking again and again to the patient as to how she got burnt. Once the patient had told PW-3 on 24.6.1984 that she got burn injuries while working on stove, there was no reason for PW-3 to ask her again on 25.6.1984 as to how she got injuries. Undue influence and interference of PW-3 cannot be ruled out. g) PW-10 HC, who joined the investigation with SI (PW7) has stated that 1st and 2nd dying declarations were recorded in his presence, but 3rd dying declaration was not recorded in his presence. h) CFSL report, seizure memo and other evidence do not support alleged 3rd dying declaration.”
From the above narrated circumstances, counsel for the appellant sought to urge that the third dying declaration is surrounded by suspicious circumstances and in particular the influence by PW-3 – Dr. Brij Mohan who was a close relative of the deceased and was working in the same hospital can be visibly seen. Counsel for the appellant also argued that the entire conduct of the appellant supports the statements made by the deceased in her first two dying declarations and not the third dying declaration as the appellant himself brought the deceased to the hospital. He tried to extinguish fire and in the process suffered burn injuries himself and he even remained in the hospital to take complete care of his wife later. Counsel for the appellant also argued that if two dying declarations cannot be relied upon, then there can be no reason to place reliance on the third dying declaration as in case of multiple inconsistent dying declarations with no corroborative evidence, the court cannot pick and chose any one dying declaration to nail the accused. Counsel for the appellant also submitted that the learned Trial Court could not appreciate the difference between the law relating to solitary dying declaration and multiple inconsistent dying declarations. Based on these submissions, counsel for the appellant strongly urged that the reasoning given by the learned Trial Court to convict the appellant is illegal and perverse on the very face of it and therefore, the impugned judgment and order on sentence passed by the learned Trial Court are liable to be set aside. In support of his arguments, counsel for the appellant placed reliance on the following judgments:- Crl.A. 316/1998 a) Kashi Vishwanath vs. State of Karnataka (2013) 7 SCC162 b) Mehiboobsab Abbasabi Nadaf vs. State of Karnataka, JT2007(10) SC62 c) Gopal vs. State of MP, 2009 (4) SCALE516 d) Shashi Bala vs. State of NCT of Delhi, 138 (2007) DLT552(DB); e) State of A.P. vs. Shaik Khan, (2004) 6 SCC34 f) Sheela Devi & Ors vs. State, 2013 (1) JCC447 g) Bisno vs. State, Crl.Appeal No.6, 12, 13 of 2005 decided on 2.11.2010 (Delhi High Court single Bench); h) Edward John & Ors vs. State (Delhi Admn), 42 (1990) DLT299 i) State of Punjab vs. Parveen Kumar, (2005) 9 SCC769 j) J.
Ramlu vs. State of Andhra Pradesh (2009) 16 SCC432 k) Lella Srinivasa Rao vs. State of MP, (2004) 9 SCC713 l) State of Punjab vs. Chatinder Pal Singh & Ors, AIR2009SC974” Page 7 of 28 6. Repudiating the said submissions of learned counsel for the appellant, Mr. Sunil Sharma, Additional Public Prosecutor for the State strongly contended that the learned Trial Court has rightly not believed the first two dying declarations as the same were not made voluntarily but under the influence and threats extended by the accused of eliminating their child while the third dying declaration was free from any suspicious circumstances including any sort of prompting or tutoring and the same also finds corroboration from the evidence of PW-1 and PW-3 and therefore, the learned Trial Court has rightly placed reliance on third dying declaration which was found to be totally unswerving and inspiring. Learned Additional Public Prosecutor for the State also submitted that the learned Trial Court has passed a well reasoned judgment warranting no interference at the appellate stage. In support of his arguments, learned Additional Public Prosecutor has placed reliance on the following judgments:- Crl.A. 316/1998 a) Shudhakar vs. State of Madhya Pradesh, (2012) 7 SCC569 b) Lakhan vs. State of Madhya Pradesh, (2010) 3 SCC (Cri) 942; c) Sher Singh and Another vs. State of Punjab, (2008) 2 SCC (Cri) 783; Page 8 of 28 d) 7. Sayarabano alias Sultana Begum vs. State of Meharashtra, (2007) 12 SCC562” The principle of dying declarations is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means ‘a man will not meet his maker with a lie in his mouth’. Section 32 of the Indian Evidence Act, 1872 is an exception to a general rule contained in Section 60 of the Indian Evidence Act, 1872 which provides that oral evidence in all cases must be direct, i.e., it must be the evidence of the witness who says, he saw it. Dying declaration is infact a statement given by such person, who cannot be called as a witness and therefore, cannot be put to crossexamination. A great sanctity has been attached to the statement made by a person who because of his medical condition is under a strong belief that he is going to meet his end very soon. In such a situation, where a person is at the verge of death, ordinarily it is not expected of him to make any false statement or to falsely implicate some person to save the real culprit of the crime. There can arise no difficulty where such solitary statement made by the deceased is found reliable and genuine totally inspiring confidence of the court to form the basis of conviction of the accused, even in the absence of any corroboration. However, in a case where a dying declaration is surrounded with doubts and suspicious circumstances and the court finds the existence of circumstances under which there could be prompting and tutoring of the deceased before making a dying declaration, then the court may refuse to accept such a dying declaration. The ultimate test is that the dying declaration must inspire confidence of the court. The law is well settled that a dying declaration is admissible in evidence and the admissibility is found on the principle of necessity. The dying declaration, as a piece of evidence stands on the same footing as any other piece of evidence. But the important question arises in the present case is that in a case of multiple variable dying declarations, which of the dying declaration should be taken into consideration by the Court and what principles shall guide the judicial discretion of the Court or a case of contradictory dying declarations must unnecessarily result in disbelieving all the dying declarations.
8. In Shudhakar vs. State of Madhya Pradesh, (2012) 7 SCC569 the court was confronted with a case of multiple capricious dying declarations, in the said circumstances the Hon’ble Court provided clarity, not only to the law of dying declarations, but also to the question as to which of the dying declarations has to be preferably relied upon by the court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if not identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused therein and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under:
“9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means ‘a man will not meet his Maker with a lie in his mouth’. The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as ‘the Evidence Act’) as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be crossexamined. Such statements themselves are relevant facts in certain cases.
10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon. (Vide Khushal Rao v. State of Bombay [AIR1958SC22:
1958. Cri LJ106 , Rasheed Beg v. State of M.P. [(1974) 4 SCC264:
1974. SCC (Cri) 426]. , K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC618:
1976. SCC (Cri) 473]. , State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC455:
1981. SCC (Cri) 364]. , Uka Ram v. State of Rajasthan [(2001) 5 SCC254:
2001. SCC (Cri) 847]. , Babulal v. State of M.P. [(2003) 12 SCC490:
2005. SCC (Cri) 620]. , Muthu Kutty v.State [(2005) 9 SCC113:
2005. SCC (Cri) 1202]. , State of Rajasthan v. Wakteng [(2007) 14 SCC550: (2009) 3 SCC (Cri) 217]. and Sharda v. State of Rajasthan [(2010) 2 SCC85: (2010) 2 SCC (Cri) 980]. .) *** 23. The second dying declaration was recorded by Shri Damodar Prasad Mahure, Assistant Sub-Inspector of Police (PW19. He was directed by the Superintendent of Police on telephone to record the statement of the deceased, who had been admitted in the hospital. In that statement, she had stated as under: ‘On Sunday, in the morning, at about 5.30 a.m., my husband Lakhan poured the kerosene oil from a container on my head as a result of which kerosene oil spread over my entire body and that he (Lakhan) put my sari afire with the help of a chimney, due to which I got burnt.’ She had also deposed that she had written a letter to her parents requesting them to fetch her from the matrimonial home as her husband and in-laws were harassing her. The said dying declaration was recorded after getting a certificate from the doctor stating that she was in a fit physical and mental condition to give the statement.
24. As per the injury report and the medical evidence it remains fully proved that the deceased had the injuries on the upper part of her body. The doctor, who had examined her at the time of admission in hospital, deposed that she had burn injuries on her head, face, chest, neck, back, abdomen, left arm, hand, right arm, part of buttocks and some part of both the thighs. The deceased was 65% burnt. At the time of admission, the smell of kerosene was coming from her body. *** 26. Undoubtedly, the first dying declaration had been recorded by the Executive Magistrate, Smt Madhu Nahar (DW1, immediately after admission of the deceased Savita in the hospital and the doctor had certified that she was in a fit condition of health to make the declaration. However, as she had been brought to the hospital by her father-in-law and mother-in-law and the medical report does not support her first dying declaration, the trial court and the High Court have rightly discarded the same. *** 30. Thus, in view of the above, we reach the following inescapable conclusions on the questions of fact: *** (c) The second dying declaration was recorded by a police officer on the instruction of the Superintendent of Police after getting a certificate of fitness from the doctor, which is corroborated by the medical evidence and is free from any suspicious circumstances. More so, it stands corroborated by the oral declaration made by the deceased to her parents, Phool Singh (PW1, father and Sushila (PW3, mother.”
9. In another case, Lakhan vs. State of Madhya Pradesh, (2010) 3 SCC (Cri) 942, on multiple dying declarations, where the deceased was brought to the hospital by her mother-in-law and father-in-law, the Apex Court while endorsing the view of the learned Trial Court that her tutoring not to give statement against her family members at the time of her first dying declaration could not be ruled out. The following paragraph of the judgment would be relevant and the same is reproduced as under:
“29. In the instant case, the deceased Savita was brought to the hospital by her mother-in-law and father-in-law and she was under their influence. The trial court is right in making an observation that generally, most women do not accuse their husbands for sentimental and religious reasons.
30. Thus, in view of the above, we reach the following inescapable conclusions on the questions of fact: (a) After having the burn injuries, Savita, the deceased, was brought to the hospital by her fatherin-law and mother-in-law and they had tutored her not to give any statement against her family members. (b) The first dying declaration was recorded by the Executive Magistrate, Smt Madhu Nahar (DW1, after getting a certificate from the doctor, in which Savita did not make allegation against any of her family members, rather, she said that it was an accident. However, such a statement is not supported by the medical evidence for the reason that the injuries on her body were found on the upper part of her body and it was not possible to have such burn injuries in case of the kind of accident as she had disclosed in the first declaration. (c) The second dying declaration was recorded by a police officer on the instruction of the Superintendent of Police after getting a certificate of fitness from the doctor, which is corroborated by the medical evidence and is free from any suspicious circumstances. More so, it stands corroborated by the oral declaration made by the deceased to her parents, Phool Singh (PW1, father and Sushila (PW3, mother. (d) A kuppi, the container, was recovered by the investigating officer from the house of the appellant. (e) Savita, the deceased, died on 20-3-2000, after about 21 days of recording of the second dying declaration. Thus, it is evident that she was not in a precarious condition or unable to make the statement, rather this fact suggests that she was in a stable condition. (f) There is nothing on record to show for what reason the witnesses would depose falsely against the appellant.”
10. In yet another case – Sher Singh and another vs. State of Punjab, (2008) 2 SCC (Cri) 783, there is a reiteration of the same view. Relevant para of the same is reproduced as under:
“15. In Laxman v. State of Maharasthra:
2002. riLJ4095, a Constitution Bench of this Court had an occasion to consider similar aspects regarding veracity of dying declaration where the doctor's certificate regarding the fitness of a person had not been taken. This Court held that if the person recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned. The Court said that the view taken in Paparambaka case (supra) of getting the doctor's certificate on the state of mind of the patient to make the statement would be a hyper-technical view, particularly when the Magistrate stated that the patient was in a fit state of mind and whereafter he recorded the dying declaration. The Court further held that where the Magistrate had ascertained from the doctor whether the victim was in a fit condition to make the statement and obtained an endorsement to that effect, merely because the endorsement was not made on the dying declaration but on the application, it would not render the dying declaration suspicious in any manner.
16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.
17. In the present case, the first dying declaration was recorded on 18.7.1994 by ASI Hakim Singh (DW-1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (DW-1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother- in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW7 on 20.7.1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW8 on 22.7.1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.
18. On overall consideration of the entire evidence, we find no infirmity in the judgment of the High Court which has considered all material evidence placed by the prosecution while arriving at the conclusion of finding the accused guilty of an offence they were charged with. The appeal is, accordingly, dismissed.
11. In the light of the aforesaid settled legal principles, adverting back to the facts of the case in hand, we have no hesitation in taking a view that the last dying declaration made by the deceased was free from any kind of influence or tutoring and the same was made with a free mind and in a natural manner. Before taking the discussion further, let us reproduce all the three dying declarations which were made by the deceased. The first two dying declarations were almost identical, therefore, reproduction of one of them would suffice. “I was preparing tea in my house. When I was using pin the stove all of a sudden, much kerosene oil gushed out’ and my disco saree caught fire as a result of which I raised an alarm and my husband came over there and extinguished the fire and brought me to the hospital in the three wheeler scooter. I caught this fire accidently and nobody is to be blamed.”
12. The third dying declaration of the deceased which was recorded by “Yesterday i.e. Sunday at about 3.30 p.m., I was preparing tea in my kitchen and was warming the milk for my son Sonu aged about three and half years. I was preparing tea on stove. My husband was present in the house at that time and he was sitting on the sofa in the drawing room outside the kitchen. Suddently, he entered the kitchen and I saw him on his very arrival. He picked up a red colored plastic can of 5 litre capacity from which he poured kerosene oil on my person and I, immediately, cried loudly but my husband Naresh set me afire with the help of match box which was lying there. The kerosene oil was not poured over from my head but from my neck below by Naresh. At that time, there was nobody else except my husband in the house and my small child was sleeping. My parent-in-law Sh.Banarsi Dass and Smt. Maya Devi resided at Baldev Park, Shahdara, which is towards Chander Nagar, Anarkali. My marriage took place on 18.1.1980 at Rajouri Garden and after my marriage, I came at Baldev Park where we stayed upto August 1980. Thereafter, on 26th August 1980, my husband left me at the house of my parents and brought me back on 2.11.1983. I delivered the child Sonu at my mother’s house. We have been living in the present house since 16.11.83. It was Wednesday. Earlier, stayed at the house of the friend of Naresh from 2nd November to 15th November. During the said period, my husband always abused and bet me. He filed a divorce case against me in the year 1981. My husband was having illicit affairs with a girl and therefore, he used to give me beatings. My husband is a Stenographer in D.D.A. I do not (sic) as to how much salary he draws because he only gave me money for buying vegetables only. He himself was bringing vegetables from the market for the last few days. After being set on fire, I raised noise but nobody came there and I myself came out running from the kitchen into the drawing room and by that time, lot of fire had engulfed me. My husband Naresh did not try to extinguish fire but when I was much engulfed with fire, he tried little to extinguish the fire with his hand. I took bed sheet etc. and wrapped the same on myself. I started covering myself with a Khes after going near the cot as a result of which, the cot also caught fire. I was set affaire by my husband Naresh only who is aged about 30 years. My husband took me to the hospital and he also threatened me not to disclose anything to anyone else he would kill me again when I would get recovered. Out of fear, I did not tell the truth in view of the apprehension of being killed by him in case of my recovery. Now I am confident that I will never return to my husband. Hence, I am disclosing the truth. I have been set afire by my husband Naresh only and no one else. The statement made by me earlier was under the influence of my husband. Today, I am smarting with pain and I do not know whether I shall survive or not. Hence, I have made this true and correct statement. Sd/N.P. Singh (In Eng) 25.6.84 Naipal Singh, M.M. Delhi ROAC RTKI, Anju Gupta”
13. All the three dying declarations have been made by the deceased after she was declared medically fit by the doctor to give her statement. We do not have slightest doubt that all the three dying declarations were made by the deceased herself. In the first two dying declarations, she had taken the blame upon herself by taking a stand that while working on the stove her disco saree caught fire, as a result of which she suffered the said burn injuries, while in her last dying declaration, she had clearly and unequivocally fastened the blame on her husband. In the first two dying declarations, the deceased had stated that she never had any quarrel with her husband and she did not appear to be chary. She also stated that her husband helped her in extinguishing fire. This statement made by the deceased goes much contrary to the strained relationship which the deceased had with her husband. It is a fact admitted on record even by the accused that after their marriage, they stayed together only for a period of eight months and from 26th August 1980, she continued to stay at her parental house till 2nd November 1983. The first child was also born when the deceased was at her parental house. Some matrimonial litigation also commenced between the parties. In this background, it is unfathomable that the deceased would say that they shared a very pleasant relationship. Such a statement made by the deceased is a clear reflection of the fact that she was under the influence of her husband who brought her to the hospital. The third dying declaration which is a quite detailed one, not only bears a narration as to how she was put on fire by her husband but she even gave some details of her strained relationship with her husband and filing of a divorce case in the year 1981. She even had referred to illicit relationship of her husband with a girl and both of them meeting frequently. She also gave satisfactory explanation of not stating truth in her first two dying declarations as she was under threat from her husband. She categorically stated that the statement made by her earlier was under the influence of her husband. The learned Trial Court was right in observing that had there been any tutoring or influence from her mother and cousin brother, who were present with the deceased with most of time in the hospital, there could be no reason for any of them to state that she had at first instance told her mother that she caught fire while working on stove and whatever was to happen, has already happened. Learned Trial Court also observed that there was no difficulty either on the part of the prosecution or for these witnesses to conceal such statements of the deceased made to them and straightaway tell what she told them later on and to the Magistrate.
14. We find ourselves in complete agreement with the said reasoning of the learned trial court as very easily they could have concealed the said statements of the deceased as were made to them.
15. Much emphasis was laid by learned counsel for the appellant on his argument that the third dying declaration made by the deceased was due to the influence exercised by PW-3, close relative of the deceased who was working in the same hospital as a doctor. Learned counsel for the appellant also contended that there was no reason for PW-3 to have asked the deceased on 25.6.1984 as to how she got injuries once she had already made the position clear in her previous two dying declarations made on 24th June 1984.
16. PW-3, Dr. Brij Mohan, was a close relative of the deceased. As per his deposition, the deceased was a daughter of his real aunt. He affirmed that he was working in the same hospital where the deceased was admitted. He stated that he happened to meet the deceased on 24.6.1984 and on the morning of 25.6.1984. He has further clarified that the third dying declaration was recorded after an application to this effect was moved by him, where after, the investigating officer moved the application to call for the services of SDM for re-recording of the statement of Anju Gupta on 25.06.1984 and due to the absence of SDM, the learned Metropolitan Magistrate, Shahdara, had visited the hospital to record the statement of the deceased. It is not unusual that in any such case of unnatural death of daughter-in-law, the parents of the girl and the other family members will not get easy satisfaction on the reasons given by the victim and members of her husband’s family with regard to the cause of death. Death of a member of a family is not to be easily digested at least by the family members of the deceased daughter, especially where already there were serious tribulations and complaints against the conduct of the husband, subjecting her to cruel treatment and willful neglect. There is nothing wrong on the part of Dr. Brij Mohan (PW-3) – cousin of the deceased to have inquired from the deceased about the exact cause of her getting burn injuries. We also cannot lose sight of the fact that even the third dying declaration was recorded by the Metropolitan Magistrate himself and although, the third dying declaration made by the deceased is a detailed one, yet we have no reason to disbelieve that the statement was not recorded by the Magistrate in the manner as was told to him by the victim. It is also not the case of the defence that somebody else has made the said statement in place of the victim. We also cannot lose sight of the fact even third dying declaration was made by the deceased after she was declared fit for making her statement by Dr. S.N. Bhanot. Shri Naipal Singh, Metropolitan Magistrate entered into the witness box as PW-15. In his examination-in-chief he categorically deposed that he had examined the patient Anju Gupta and recorded her statement after ascertaining that she was making a statement voluntarily. In his examination, he was categorical in stating that when he recorded her statement, the victim was alone and nobody else was present in the room. He also deposed that no doctor by the name of Brij Mohan Gupta met him nor he knew any of the doctor with the said name in the said department. He was also categorical in deposing that any doctor by the name of Brij Mohan Gupta was not present when he recorded the statement of the victim. He also stated in his examination in chief that he himself had taken the thumb impression of Anju Gupta on the said dying declaration. The testimony of PW-15 – Shri Naipal Singh remained unimpeachable as nothing could be elicited in his cross-examination to doubt his testimony in his examination-inchief. Mere fact that Ms. Anju Gupta had changed her version in the third dying declaration cannot lead us to believe that she gave her dying declaration after being tutored by her mother or her cousin brother, but at the same time we find no hesitation in taking a view that first two dying declarations were certainly under the influence and threats of the appellant otherwise in the said dying declarations she would not have stated that she never had any quarrel with her husband which was factually incorrect.
17. We cannot be oblivious of the fact that the SDM in his deposition also stated that before recording the statement of the deceased, he had consulted a doctor and the doctor had certified that the deceased was fully conscious and in proper frame of mind at the time of making her statement under section 32 of the Indian Evidence Act, 1872. As already said above, the testimony of PW-15, Naipal Singh, Metropolitan Magistrate remained unchallenged and unrebutted as no such question was put to him by the defence in his cross-examination to challenge his credibility and impartiality in recording the dying-declaration of the deceased. The defence has to make out a very strong case, otherwise, impartiality and independence of the Magistrate cannot be easily questioned. The Hon’ble Apex Court in Harjit Kaur Vs. State of Punjab, 1999 (3) RCR (Cri) 700, took a view that Sub Divisional Magistrate being an independent witness holding high position has no reason to do anything which was not proper and genuineness of dying-declaration recorded by him cannot be easily doubted as “Whatever impression could be taken was taken by the S.D.M. The medical evidence in this case does not disclose that she could not have put her thumb mark on the Dying Declaration. We fail to appreciate how this circumstance can create any doubt regarding the evidence of this witness or genuineness of the Dying Declaration. P.W. 7 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bare suggestion made to him that the Dying Declaration was manufactured by him after her death, we do not find anything in his cross-examination as would create any doubt regarding truthfulness of what this witness has deposed. We fully agree with the finding recorded by the courts below that the Dying Declaration was voluntarily made by Parminder Kaur and that it was correctly recorded by P.W.-7.”
18. In the light of the above discussion we hardly find any merit in the contentions raised by learned counsel to raise doubts on the third dying declaration made by the deceased Anju Gupta. Learned counsel for the appellant placed reliance on a number of judgments of the Apex Court but keeping in view the facts of the present case, the said judgments would be of no help to the case of the appellant. It has been rightly said that no two criminal cases are alike and the facts of each case, how they are proved and which kind of evidence become the deciding factor and how any judicial precedence attract to the factual situation of a particular case.
19. Taking an overall view of the facts and circumstances of the present case, we find no reason to disagree with the reasoning and findings given by the learned trial court holding the appellant guilty for committing an offence punishable under Section302 IPC. We also find no scope to interfere with the order on sentence passed by the learned trial court. Finding no merit in the appeal filed by the appellant, the present appeal is dismissed and disposed of as such. KAILASH GAMBHIR, J.
SUNITA GUPTA, J.
MARCH24 2014 pkb