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Smt. Devi Vs. State (Nct of Delhi) - Court Judgment

SooperKanoon Citation

Subject

Criminal

Court

Delhi High Court

Decided On

Case Number

Crl. A. No. 169 of 1995

Judge

Reported in

2001IIIAD(Delhi)584; 90(2001)DLT626; I(2001)DMC585; 2001(50)DRJ310

Acts

Indian Penal Code (IPC), 1860 - Sections 302

Appellant

Smt. Devi

Respondent

State (Nct of Delhi)

Appellant Advocate

Mr. Y.P. Singh and; Mr. Hemant Kumar, Advs

Respondent Advocate

Mr. H.J.S. Ahluwalia, Adv.

Excerpt:


evidence act, 1872 - section 32--dying declaration--statement recorded by doctor on duty--95% burned--victim conscious while making statement--dying declaration true and free from inducement--statement coherent and consistent--declaration form basts of conviction even if there is no corroboration. - - dying declaration is a best guarantee of the truth of the statement made by a dying person provided that the time of making the statement, her or she was not unconscious. patient was conscious, co-operating, well-oriented, smell of kerosene strongly positively, approximately 95% burns. vikas rampal appearing as pw3 in no uncertain words stated that when he recorded the statement exhibit pw3/a, meera was conscious, co-operating and well oriented. he knows hindi very well. it is a well settled proposition of law that dying declaration if found to be true and free from embellishment then it is sufficient for recording conviction. kishore 1996 scc (crl) 646 held that after careful scrutiny, if the court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there is no legal..........kerosene oil. the death took place at other matrimonial home within 7 years of her marriage. the learned additional sessions judge relying on the dying declaration and the evidence which had come on record, sentenced the appellant smt. devi, mother-in-law of the deceased to undergo rigourous imprisonment for life and further to pay fine of rs.200/-, in default of payment of fine to further undergo rigourous imprisonment for 15 days. this sentence has been awarded under section 302 ipc vide order of conviction & sentence passed on 26th august, 1995. by this appeal, the appellant has challenged the conviction and sentence dated 26th august, 1995 on the following amongst other grounds.1. that the version given in the dying declaration is contrary to the facts on record. 2. that there are material contradictions and discrepancies in the evidence of the witnesses; 3. that parents of the deceased have not supported the case of the prosecution. they testified that deceased was unconscious when taken to hospital. hence, dying declaration purported to have been recorded by the doctor is doubtful; 4. that deceased was having 95% burns, thereforee, it was impossible for her to give such.....

Judgment:


ORDER

Usha Mehra, J.

1. This is an unfortunate case where a young woman of 24 years age has died because of being burnt with kerosene oil. The death took place at other matrimonial home within 7 years of her marriage. The learned Additional Sessions Judge relying on the dying declaration and the evidence which had come on record, sentenced the appellant Smt. Devi, mother-in-law of the deceased to undergo rigourous imprisonment for life and further to pay fine of Rs.200/-, in default of payment of fine to further undergo rigourous imprisonment for 15 days. This sentence has been awarded under Section 302 IPC vide order of conviction & sentence passed on 26th August, 1995. By this appeal, the appellant has challenged the conviction and sentence dated 26th August, 1995 on the following amongst other grounds.

1. that the version given in the dying declaration is contrary to the facts on record.

2. that there are material contradictions and discrepancies in the evidence of the witnesses;

3. that parents of the deceased have not supported the case of the prosecution. They testified that deceased was unconscious when taken to hospital. Hence, dying declaration purported to have been recorded by the doctor is doubtful;

4. that deceased was having 95% burns, thereforee, it was impossible for her to give such a lengthy dying declaration;

2. Let us look into the brief facts of the case before we proceed to deal with the arguments put forward by the counsel for the appellant. In a nutshell, the facts as represented by the prosecution are that on 16th September, 1987 at 1.55 P.M., deceased Meera w/o Tulsi Ram aged 24 years r/o Janta Flats, Dilshad Garden was brought to the Casuality ward of LNJP Hospital with 95% burns by her husband Tulsi Ram. She told to the doctor that her mother-in-law come to her house the previous day and took her children with her. On 16th September, 1987, her mother-in-law along with her sister-in-law and few other relations came to her house. Her mother-in-law with the help of her sister-in-law and other relations poured kerosene oil on her. Her mother-in-law lit fire on her. At that time, her husband Tulsi Ram was away to his place of work.

3. The above information was received at the Police station from the police post at the LNJP Hospital. Doctor recorded on the MLC Ex.PW-3/A the alleged history of burns as given to him by the deceased Meera. After Meera's death Ex.PW-3/A was read as her dying declaration.

4. Prosecution examined as many as 20 witnesses. Relevant for our purposes are PW1 Smt. Natho, mother of the deceased; PW2 Sita Ram, father of the deceased; PW3 Dr. Vikas Rampal who recorded EX.PW/A; PW8 Anil Aggarwal and PW18 Inspector Kale Bisht, the investigating officer.

5. Admittedly dying declaration is a substantial piece of evidence provided it is not tainted and the statement had been made by the dying person, who was in a fit condition to make the same. Dying declaration is a best guarantee of the truth of the statement made by a dying person provided that the time of making the statement, her or she was not unconscious. Law accepts that because on shadow of death, the dying man invariably likes to tell the truth. thereforee, statement made by a dying person, who had not been unconscious and fit to disclose the cause leading to her death which must be fresh in mind and untainted by any consideration except speaking truth, leaves no impediment in convicting the accused based on such a dying declaration.

6. Keeping the above principle of law in mind, we have to weigh the statement recorded on exhibit PW3/A, it is stated to have been made by the deceased Meera immediately on being brought to the hospital and it was so recorded by the doctor on duty. According to the said doctor Vikas Rampal PW3, Meera gave the said history of her burn which he recorded in Ex.PW3/A. She stated so when he asked her the cause of her burn. Meera the deceased was brought to the hospital by her husband Tulsi Ram. As per MLC exhibit PW3/A, Meera was admitted in the hospital at 1.55 P.M. Immediately on being brought to the hospital, Dr. Vikas Rampal (PW3) recorded her statement giving cause of burn as under:-

'Alleged history as told by patient herself is that her mother-in-law (saas) had come to her house yesterday evening and had taken the patient's children along with her. Today the mother-in-law (Nanand) and a few other relatives. According to the patient, mother-in-law along with the help of the sister-in-law and relatives poured kerosene on her and then the mother-in-law put her to fire (Aag Laga Di). According to the patient, her husband was away to the place of his work at the time of the incident.

Patient was conscious, co-operating, well-oriented, smell of kerosene strongly positively, approximately 95% burns.'

7. After having recorded the history as narrated to the doctor by the patient herself at 1.55 P.M., the Doctor advised the treatment and directed Meera the deceased to be admitted in the burns ward for detailed examination and management. It is this statement of the deceased giving the cause of her burn which having been treated as the dying declaration is an important piece of evidence. The case of the appellant hinges on the acceptance or non acceptance of this dying declaration.

8. Counsel for the appellant contended that with 95% burns, Meera could not have given such a lengthy statement. Moreover, she never used to call appellant as her mother-in-law (Saas). She used to call the appellant as 'Amma' and to Smt. Punia (aunt of her husband) as her mother-in-law (Saas). This argument of the counsel for the appellant does not cut any ice because while recording the statement, the doctor specifically used the words the 'Saas' and the 'Nanand'. If the deceased had Smt. Punia in her mind as her 'Saas', she would have said so. The defense appears to be after thought. Deceased had in no uncertain words stated that her mother-in-law i.e. the 'Saas', took her children the previous day. On the fateful day appellant Along with other came to her house, she not only poured kerosene oil on her but lit the fire also. The dying Meera described the specific role played by the appellant in burning her. The version given by the deceased appears to be truthful and straight forward. As already pointed out above, she was brought to hospital by her husband, when she gave the history of her burn to the doctor, there was none to influence her mind. The only person, who could influence her thinking was her husband. He could not have implicated his own mother. thereforee, the version given by the deceased to the doctor immediately on being brought to hospital cannot be lightly brushed aside. Moreover no motive has been alleged against the doctor to falsely implicate the appellant. thereforee, to our mind, the court below rightly concluded that there being no animosity between the appellant and the doctor. Moreover the doctor had no axe to grind in recording the history as recorded in Ex.PW3/A. His statement that he recorded the cause of burn as given by the patient, hence it cannot be doubted. He recorded what was told to him by the patient herself.

9. Dr. Vikas Rampal appearing as PW3 in no uncertain words stated that when he recorded the statement exhibit PW3/A, Meera was conscious, co-operating and well oriented. He was subjected to lengthy cross examination but he withstood the same. Nothing could be elicited form him which could discredit his testimony. To a question as to why on Ex.PW3/A thumb impression of Meera was not obtained, he answered by saying that it was not the practice with hospital to get thumb impression of the patient on the MLC. That while recording the history on the MLC doctor Vikas Rampal Said that none was present. To another question, he replied that none was present. To another question, he replied that the patient was talking in Hindi. He knows Hindi very well. He translated in English what was Stated to him in Hindi by Meera. Accordingly he recorded in English on the MLC. He only asked one question as to how the incident happened. It was the deceased Meera, who gave the whole history, Since he was not recording the dying declaration, so he did not record it in questions and answers form. According to doctor Vikas Rampal 95% burns was assessed by him on approximation. He specifically denied that the deceased Meera was brought to him in hospital in unconscious state. She was fit to make the statement. According to him neither the father nor the mother of the deceased came to him at any time after Meera was admitted. He denied the suggestion that deceased's parents contracted him or that they came to him or that Meera was in unconscious state. He denied the suggestion that Meera gave the name of her mother-in-law as Smt.Punia or that he did not record it. He categorically stated that deceased Meera never gave the name of her mother-in-law nor he asked for it.

10. That Ex.PW3/A is the version of the deceased having been truly recorded by the doctor on duty immediately after she was brought to hospital. The incident was fresh in her mind and, thereforee, it can be concluded that she spoke the truth. Since there was none who could have influenced her mind against the appellant hence the version given by her mind against the appellant hence the version given by the deceased and as recorded by the doctor cannot be discarded nor doubted. Deceased could not be said to be in an unfit state of mind. Merely because she had approximately 95% burns is no ground to conclude that the history given by her to the doctor was incoherent or borrowed one. Reliance can be placed on the observation of Supreme Court in CHARIPALLI SHANKARARAO VS . PUBLIC PROSECUtor, HIGH COURT OF ANDHRA PRADESH : AIR1995SC777 . In that case, it was held that where the death of deceased caused due to burn injuries and the medical evidence showing that the deceased suffered 90% burns and have been under a severe stress and agony, the detailed statement covering the minutest details could not be expected from the declarant and, thereforee, the statement of the declarant that it was accused alone was poured kerosene oil and set her body on fire by lighting match stick does not suffer from any infirmity so as to render it doubtful or unworthy of reliance. It is a well settled proposition of law that dying declaration if found to be true and free from embellishment then it is sufficient for recording conviction. The prosecution in this case has been able to establish beyond any reasonable shadow of doubt that the deceased was in proper mental condition to make the statement as recorded in Ex. PW3/A.

11. That merely because dying declaration was recorded by a doctor is also no ground to discard the same. In fact the doctor had been examined as PW3. He certified the mental condition of the deceased on exhibit PW3/A and while steeping into the witness box as PW-3 reiterated that Meera was conscious and in a fit state of mind to make that statement, which was recorded as PW3/A. Except saying that the deceased said Punia to be her mother-in-law, no other suggestion was given to the doctor from where it could be inferred that the statement as recorded by the doctor exhibit PW3/A was false. The safeguards prescribed by the Supreme Court have in fact been followed by the doctor while recording Ex. PW3/A. He certified before recording the alleged history that she was in a fit mental condition to make the statement. Furthermore, he was examined by the prosecution to prove that he recorded the history of the incident as given by the deceased herself. She was fully conscious. In fact from the testimony of the doctor Vikas Rampal (PW-3), it is apparent that he recorded the history in exhibit PW3/A when the patient was conscious and was capable of giving the cause of her burn. At the time when he recorded the statement he was on duty and that no medicine had been administered to her. After recording the cause of her burn in Ex.PW3/A, he advised treatment. Since the patient was conscious and was not under the influence of any drug and there being no motive for the doctor to falsely implicate the appellant, we see no reason to discard the testimony of Dr.Vikas Rampal (PW3). His statement inspire confidence. It appears to be truthful and trust-worthy.

12. Counsel for the appellant then contended that the mother and the father of the deceased namely Smt. Natho (PW1) and Shri Sita Ram (PW2) have not supported the case of the prosecution. According to them when they reached the house of the deceased at about 1.00 P.M. Meera was unconscious. Hence she could not have told the doctor the cause of her burn. They in fact resoled from their earlier statement made to the SDM wherein they implicated this appellant for the death of their daughter. Mr. Ahuluwalia pointed out it that deceased's parents resoled from their earlier statement because they wanted custody of deceased's children. To support his arguments he drew our attention to the cross-examination of PW1 wherein she admitted that she might have told the police that in-laws of Meera used to quarrel with her. She admitted having made the statement before SDM. She admitted that she had not told to the SDM the Tulsi Ram had extinguished the fire. The very fact that parents of the deceased wanted to keep cordial relation with Tulsi Ram husband of the deceased for the sake of Meera's children, thereforee, they did not support the case of the prosecution. Similarly Sita Ram (PW2) admitted that he wanted to keep the custody of his deceased daughter's children. Meera's children had been living with them.

13. Be that as it may, fact remains that doctor Vikas Rampal (PW3) recorded the statement of the deceased immediately after she was taken to hospital by her husband, Tulsi Ram. She stated what happened to her. There is no impediment to accept that statement Ex.PW3/A. The mere fact that Meera's mother and father have not supported the case of the prosecution is so ground to discard the dying declaration particularly when the same inspires confidence. It had been recorded faithfully and truthfully as stated by Doctor Vikas Rampal PW3, whereas Smt. Natho & Sh. Sita Ram (PW1 & PW2) could have motive in supporting the case of the prosecution. We, thereforee, see no reason to doubt the genuineness of the dying declaration Ex.PW3/A. In this declaration , deceased had implicated the mother-in-law i.e. the present appellant who poured and then let her on fire. She completely exonerated her husband Tulsi Ram. This dying declaration is sufficient for the conviction of the appellant and the trial court rightly relied on this piece of evidence. The statement given by the deceased to doctor Vikas Rampal (PW3) is coherent, trust-worthy and made in a fit mental state. Supreme Court in the case of STATE OF RAJASTHAN VS. KISHORE 1996 SCC (CRL) 646 held that after careful scrutiny, if the court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there is no legal impediment to form such declaration the basis of conviction even if there is no corroboration.

14. On the other hand counsel for the appellant placed reliance on the decision of Supreme Court in JAI KARAN VS. STATE OF N.C.T. OF DELHI 1999 (2) JCC 528. To our mind this decision is of no help to the appellant. In that case the reliability of dying declaration became doubtful because it was recorded by a doctor who was not on duty in the burn ward. Moreover, the deceased was not even conscious. In that case, even the certificate that the deceased was in a fit state of mind was not recorded. there was overwhelming evidence that the deceased was unconscious and was not in a fit state of mind to make any such statement. But that is not the case in mind to make any such statement. But that is not the case in hand. On the contrary in the case in hand, Doctor Vikas Rampal (PW3) was on duty in the burn ward when Meera was brought to the hospital. He recorded the history as given by the patient and after recording the statement transferred her for detailed examination and treatment. He asked the cause of her burn in Hindi. She answered in Hindi though he translated it in English while recording in Ex.PW3/A. He recorded the history of her burn. thereforee, there was no question of obtaining thumb impression or signature of the deceased on the MLC. He gave certification on the MLC exhibit PW3/A that the patient was conscious, co-operative and well-oriented when she made the statement. Hence on facts that case is distinguishable. Similarly reliance by the appellant on the decision of this court in the case of JASPAL SINGH & ORS. VS. STATE (DELHI ADMN.) 1994 (2) C.C.C. 403 is also of no help. As already pointed out above, Dr. Vikas Rampal (PW3) was not recording the dying declaration. He was recording the cause of her burn, which after her death was treated as the dying declaration. thereforee, it could not have been in the question answer form nor on the MLC doctor could obtain thumb impressions. thereforee the principle of recording the dying declaration in the strict sense could not have been applied in the facts of this case. Reliance by the appellant on the decision of Supreme Court in the case of DANDU LAKSHI REDDY VS. STATE OF A.P. 1999 (4) CRIMES 90 is also of no help in the facts of this case. In that case, the court in fact found material differences between the two declarations pertaining to the occasion for launching murderous attack. Court doubted as to whether deceased was mentally in sound condition at the time of recording the dying declarations and, thereforee, conviction based on such a dying declaration was set aside. But in the case in hand there is only one dying declaration. It was recorded by doctor Vikas Rampal (PW3). He proved the same by stepping into the witness box. He also certified that when the statement Ex.PW3/A was recorded the deceased was conscious meaning thereby in a fit state of mind to make the said statement. No discrepancy has been pointed out in the evidence of Dr. Vikas Rampal and the statement of deceased recorded in Ex.PW3/A.

15. In view of above discussion, we do not find any merits in the appeal nor any reason to interfere with order of conviction recorded by the learned Sessions Judge. The appeal is accordingly dismissed.


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