Krishan and anr. Vs. State of Rajasthan - Court Judgment

B.R. Arora, J.

1. This appeal is directed against the judgment dated 6.7.95 passed by the District and Sessions Judge, Hanumangarh, by which the learned Sessions Judge convicted accused-appellants Krishan and Rani Devi for the offence under Section 302/34 IPC and sentenced them to undergo rigorous imprisonment for life and a fine of Rs. 2000/-each and in default of payment of fine further to undergo one year's rigorous imprisonment; but acquitted accused Ram Rakh of all the charges.

2. Appellants Krishan, Smt. Rani Devi and Ram Rakh were tried by the learned Sessions Judge, Hanumangarh for committing the murder of Smt. Radha W/o accused Krishan in the Rohi of village Jorawarpur by sprinkling kerosene over her and thereafter litting the fire when she was sleeping in the house in the night intervening 2/3 February, 1988. The case of the prosecution is that deceased Smt. Radha, 15 to 20 days before the date of the incident, had come to her in-laws house from her parental house. In the night of the incident, after finishing the domestic work she slept in the room at about 10.30 p.m. Her husband Krishan and mother-in-law Smt. Rani Devi were, also, sleeping in the same room. Her mother-in-law was not feeling well. In the night suddenly she got fire on her clothes. She got-up, cried and found that somebody has sprinkled kerosene over her clothes and put her to fire. Her mother-in-law and husband Krishan took her out-side the. room. Her father-in-law, also, came there. Her father-in-law stated, 'do not extinguish the fire and put more kerosene on her.' She raised cries and her cries attracted Sheopat and two neighbourers Prithvi Gusain and one Chhipa, who came there and extinguished the fire. Her father-in-law want to keep her as his wife and her mother-in-law and the husband were annoyed with her. After she received the burn injuries, she was treated in the village for about three-four days and the doctor used to come to attend her. Thereafter her mother, sisters and brother came and took her to Hanumangarh Hospital and got her admitted there on 4- 2-88. On 12-2-88 while she was in the hospital, her statement (Ex.P. 18) was recorded by PW 4 Attar Singh, A.S.I. and on the basis of this Statement the F.I.R. EX.P.13 was registered at Police Station, Hanumangarh Town, at 5.20 p.m. The requisition EX.P.17 was sent to the magistrate for recording the dying declaration of Smt. Radha. PW 5 Mr. Ashok Kumar Jain, Munsif cum Judicial Magistrate, Hanumangarh, on 12-2-88, at 7.45 p.m., recorded the dying declaration of injured Smt. Radha which is EX.P.12 on record. The police again recorded her statement (EX.P.20) under Section 161 Cr.P.C. at 8.00 p.m. Smt. Radha died on account of shock due to septicimia caused by extensive bums.

3. The prosecution, in support of its case, examined six witnesses. The accused, in their defence, examined DW 1 Narain Giri who came at the place of the occurrence alongwith Sheopat and one Chhipa on hearing the cries of Radha after she was burnt and all of these three persons extinguished the fire. Neither Sheopat nor Chhipa nor Prithvi Gusain, though their presence were admitted and who extinguished the fire, has been examined by the prosecution and only Narain Giri (DW 1) has been examined by the accused. The learned trial Court, after trial, acquitted accused Ram Rakh but convicted and sentenced accused-appellants Krishan and Rani Devi, as stated above. The learned trial Court while acquitting Ram Rakh observed that there was no common intention shared by Ram Rakh with the co-accused regarding the murder of Smt. Radha and he had no motive for the same.

4. It is contended by the learned Counsel for the appellants that no case against the appellants connecting them with the crime, has been made-out and there is the evidence of only the dying declarations against them which are wholly unreliable and necessary precautions while recording the statement that the injured was in a fit condition to make the statement, was not taken and the doctor, who has certified the condition of the patient, has not been produced and the appellants, therefore, deserve to be acquitted. It has, also, been submitted by the learned Counsel for the appellants that the dying declaration is not in the question and answer form and the learned Magistrate, before recording the dying declaration, has not taken the necessary precautions which are required to be taken before recording the statement and the dying declaration, therefore, cannot be read against the appellants.

5. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court and submitted that the judgment passed by the learned trial Court does not require any interference.

6. We have considered the submissions made by the learned Counsel for the parties.

7. Before considering the submissions made by the learned Counsel for the parties, it is necessary to consider the nature of the evidence produced by the prosecution.

8. PW 1 Dr. Indra Raj Saharan was the Medical Officer posted at the relevant time at Government Hospital, Hanumangarh Town. He was one of the Member of the Medical Board which conducted the post-mortem on the deadbody of Smt.Radha on 20.2.88. Dr.K.C. Mittal and Dr.Sukhveer Singh were the other two Members of the Medical Board. PW 2 Teja Ram is the brother of the deceased. He has stated that 10-15 days before the death of Smt. Radha, a man came from the village of Radha's father-in-law and informed them that Radha received burn-injuries while she was cooking the food. Radha was happy with her in-laws and the members of her in-laws never used to harass her and he does not suspect that any person has killed Radha. She was burnt while cooking the food. In the cross-examination he has admitted that when he, alongwith her mother, went to the Dhani of Radha and made enquiry from her how she got burn injuries, Radha informed that she was burnt accidently and nobody has burnt her and her in-laws are not responsible for her burning. The statement made by this witness In the cross-examination reads as under:

eS vkSj esjh eka tc mudh Bk.kh x;s vkSj jk/kk dks iwNk rks mlus crk;k fd vkx yx x;h gS esjs dks fdlh us vkx ugh yxk;h gS vkSj bles esjs llqjky okyks dk fdlh dk dksbZ dlwj ugh gS A^

9. PW 3 Smt. Sheokouri the mother of the deceased- has stated that Radha was her daughter and she had no complaint against her in-laws. Radha was happy with her in-laws and their relations were very cordial. In the cross-examination she had admitted that after receiving the information regarding burning of Radha she, alongwith her son, went to Radha's Dhani and on enquiry Radha informed them that accidently she got the fire and nobody has put her to fire. Her relations with her husband, mother-in-law and father-in-law were cordial. The statement made by her reads as under:

^^jk/kk us esjs dks o esjs yM+ds dks IkwNus ij crk;k Fkk fd esjs [kqn gh vkx yx x;h gS ] eq>s fdlh us dksbZ vkx ugh yxk;h gS A jk/kk dks mldk ifr] lkl o llqj cgqr I;kj ls j[krs Fks A jk/kk dks llqjky es dksbZ nq%[k rdyhQ ugh Fkh A^^

10. PW 4 Atar Singh was the Assistant Sub-Inspector of Police posted at Police Station, Hanumangarh Town. He recorded the statement (EX.P.18) of Smt. Radha at 5.20 p.m. on 12.2.88, on the basis of which the report was registered. In the cross- examination he has admitted that he recorded the statements of Ami Lal, Narain, Sheopat Ram and Sant Ram. All these witnesses have stated that she burnt accidently. The statement of PW 4 Atar Singh, in the cross-examination, reads as under:

^^vlhyky] ukjk;.k] ';ksirjke vkSj larjke ds c;ku eSus fy, Fks Abu xokgks us eq>s crk;k Fkk fd jk/kk us bu xokgks dks dgk fd jk/kk Loa; vkx yxus ls ejh vkSj fQj dgk fd jk/kk us lkl llqj dks crk;k Fkk fd jk/kk ds vkx vius vki yxh gS A^^

11. PW 5 Shri Ashok Kumar Jain was the then Munsif Cam Judicial Magistrate, Hanumangarh, who recorded the dying declaration (EX.P.21) of Smt. Radha on 12.2.88 at 7.40 p.m. PW 6 Gopi Ram was the Assistant Sub-Inspector of Police, who, on the basis of Parcha Bayan (EX.P.18) registered the F.I.R. (EX.P.13).

12. DW 1 Narain Giri was the person who immediately came at the scene of the occurrence on hearing the cries and extinguished the fire. He has stated that when he came there and extinguished the fire and made enquiry from Radha then she told that she got fire in her clothes while she was cooking the food. When he asked her that a criminal case will be registered against her for an attempt to commit suicide then she said that she will name the other persons if such case is registered against her.

13. There is no eye witness to the occurrence and the prosecution case mainly rests upon the dying declaration made by the deceased. The first statement in the form of dying declaration was made by the deceased before Sheopat Ram, Prithvi Gusain and one Chhipa-the neighbourers of their Dhani, to whom deceased Smt. Radha stated that she caught fire accidently and nobody has put her to fire. The second statement in the nature of dying declaration was made by the deceased before her brother and the mother and the same statement was given by the deceased to them. The third statement in the nature of dying declaration was made in the form of Parcha Bayan (Ex.P. 18) recorded by PW 4 Atar Singh and on the basis of which the FIR was registered. The fourth statement in the nature of dying declaration was recorded by PW 5 Shri Ashok Kumar Jain, the Munsif cum Judicial Magistrate, in the hospital at 7.40 p.m.

14. Section 32 of the Evidence Act is an exception' to the rule of hear-say and makes admissible the statement of facts made under the expectation of death by a person who is no more, as to the cause of his/her death in a case in which the cause of that person's death comes in question. The general rule of Law of Evidence is that unless the statement made is on oath and is tested by the cross-examination, it is not admissible; but the dying declarations are made admissible under Section 32 of the Evidence Act on the principle that a person at the verge of death is not likely to tell a lie and he will not like to meet his/her maker with a life in the mouth. A dying man will not like to concoct a case and implicate an innocent person. If a statement made by a person in a fit state of mind and the statement made by him/her is true and voluntary and free from tutoring or prompting then the conviction can be based on the basis of the dying declaration without any corroboration. It has been laid down by the Supreme Court in a catena of decisions that if after careful scrutiny the Court is satisfied that the dying declaration made by the deceased in true and voluntary 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 in basing the conviction on the basis of the dying declaration without any corroboration.

15. The question which requires consideration is: when there are more than one statement in the nature of dying declarations and there is consistency between the dying declarations then which of the dying declarations should be preferred: whether the dying declaration made first in point of time should be given preference and relied-upon, or the dying declaration made before the Magistrate should be given credence, or the statement in the nature of dying declaration made before the police should form the basis of the judgment ?

16. When there are number of statements in the nature of dying declaration made by the deceased relating to cause of his/her death in a case where the cause of death is in question then the Court has to see: whether these declarations are consistent with each other, are true and voluntary and free from embellishment, tutoring or prompting If the statements are inconsistent then the statement made in the first point of time must be preferred because the subsequent statements may suffer from the infirmity of human memory and character. By the lapse of time the possibility of embellishment, tutoring or false involvement, also, cannot be ruled-out. In case if there are number of the dying declarations based upon the oral testimony and that of the statement recorded by the Magistrate then the dying declaration recorded by the Magistrate should be preferred as it stands on much higher footing.

17. The same controversy cam-up for consideration before the Supreme Court in Khushal Rao v. State of Bombay : 1958CriLJ106 and the Supreme Court held that 'a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of question and answer, and as far as practicable, in the words of the maker of the declaration, stands on much higher footing than the dying declarations which depend upon the oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been imparired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it Rs. and that the statement had been made at the earliest oppportunity and was not the result of tutoring by interested parties.'

18. In Thurukanni Fompiah and Anr. v. State of Mysore : 1965CriLJ31 there were three dying declarations made by the deceased. Two dying declarations were made simultaneously and the third dying declaration was made shortly thereafter. In the first dying declaration the names of only two assailants were implicated while in the later two statements the deceased implicated four persons as the assailants. Since these three statements were not consistent, the Supreme Court, therefore, held that 'the truthfulness of the dying declaration as a whole is not free from doubt and as the dying declarations suffer from an infirmity and are not reliable by themselves and, therefore, they cannot safely form the basis for conviction without further corroboration. The Supreme Court, therefore, did not place reliance on these inconsistent dying declarations and acquitted the accused as there was no corroboration to the dying declarations. The view taken by the Supreme Court in Khushal Rao v. State of Bombay : 1958CriLJ106 regarding the preference of the statement recorded by the Magistrate be given over the oral testimony of the witnesses regarding the dying declaration, was reiterated by the Supreme Court in: K.Ramachandra Reddy and Anr. v. Public Prosecutor : 1976CriLJ1548 .

19. In Mohan Lal Ganga Ram v. State of Maharastra : [1982]3SCR277 there were two contradictory statements in the form of dying declarations made by the deceased. One statement was made before the doctor, in which the victim stated the name of a particular person as his assilant while in the subsequent statement the deceased gave the name of another person as his assailant. The Supreme Court held that 'in these circumstances the statement made by the victim to the doctor being the first in the point of time, must be preferred to his subsequent statement.'

20. In Kundula Bala Subrahmanyam and Anr. v. State of Andhra Pradesh : 1993CriLJ1635 there were two dying declarations made by the deceased before the witnesses. The question before the Supreme Court was: which of the dying declarations should be accepted and relied-upon and the Apex Court held that 'if there are more than one dying declarations then the Court has, also, to scrutinize all the dying declarations to find-out if each one of these passes the test of being trustworthy. The Court must further find-out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.'

21. In Smt. Kamla v. State of Punjab : 1993CriLJ68 there were four dying declarations made by the deceased. There were glaring inconsistencies in naming the culprits. In the first dying declaration the deceased stated that her mother-in-law sprinkled kerosene from behind and burnt her. In the second statement she stated that by accident her clothes burnt due to catching fire from above. In the third statement she has stated that probably her mother-in-law and father-in-law might have set fire after pouring kerosene oil; and in the fourth statement she stated that she turned to the store and her mother-in-law and father-in-law were talking behind and suddenly they poured kerosene and then set fire on her. The Court found glaring inconsistencies in the statements as to who actually poured kerosene and set-fire, or whether she caught fire accidently. Looking to these inconsistencies the Court came to the conclusion that it is unsafe to convict the appellants on the basis of the dying declarations.

22. In State of Gujarat v. Khuman Singh Karsan Singh and Ors. : AIR1994SC1641 there were two dying declarations made by the deceased. The first dying declaration implicated only the mother-in-law while in the subsequent dying declarations the deceased implicated her husband as well as her mother-in-law. Looking to the inconsistencies between the two dying declarations the Supreme Court ruled that these inconsistencies suggest the possibility of tutoring and false involvement due to strained relations with both the accused and, therefore, conviction cannot be based on such inconsistent dying declarations.

23. The position of law discernable from the judgments of the Supreme Court referred above is that in case where there are number of dying declarations then the dying declaration made first in the point of time should be given preference as there are lesser chances of tutoring or prompting by the interested parties. All the dying declarations made by the deceased should be consistent and if there is any inconsistency then no reliance can be placed on these dying declarations. In case where there is oral testimony relating to the dying declarations and the dying declaration recorded by the 'Magistrate then the dying declaration recorded by the competent Magistrate in the proper manner, i.e., in the form of question and answer and in the words of the maker of the declaration, stands on much higher footing than a dying declaration based upon the oral testimony of the witnesses. In order to test the reliability of the dying declarations the Court has to make a deep scrutiny of the statements and has to see: whether (i) the dying man was in a Jit condition to make the statement; (it) he had an opportunity for observations; (Hi) his statement is consistent through-out; and (iv) is true, voluntary and free from tutoring and prompting. If the dying declarations satisfy these tests then the same can be acted upon and can independently form the basis for conviction without any corroboration from other source.

24. In the present case there are four statements in the nature of dying declarations made by the deceased. The first statement was made by deceased Radha before Sheopat Ram and the neighbourers Prithvi Gusain and one Chippa. Sheopat Ram and Chippa have not been produced by the prosecution and only Prithvi Gusain has been produced and that too by the accused. According to this statement the deceased accidently got the fire while she was cooking the food. This statement given by the deceased immediately after the occurrence, also, finds corroboration from the statement of PW 4 Atar Singh, A.S.I, who conducted the investigation. He has stated that he recorded the statements of Mani Ram, Narain, Sheopat Ram and Sant Ram and they disclosed in their statement that Radha caught fire accidently.

25. The second set of the dying declaration relied-upon by the prosecution is the declaration made by the deceased to her brother PW 2 Teja Ram and mother PW 3 Smt. Sheokour. These two witnesses, when they went to the Dhani of Radha and found her in a burnt condition, made an enquiry from the deceased whereupon Smt. Radha informed them that accidently she caught the fire. These two dying declaration, therefore, clearly show that the deceased was not put to fire after sprinkling kerosene over her and litting the fire by the accused but it was by accident that she caught fire. No evidence is available on record about sprinkling of kerosene and litting the fire on her by the accused.

26. The third dying declaration relied-upon by the prosecution was recorded by the Magistrate. Though the dying declaration recorded by the Magistrate assumes great importance but merely because it has been recorded by the Magistrate, who failed to observe the safe-guards in connection with the recording of the dying declaration, will not make the dying declaration as trustworthy or reliable. How a dying declaration is to be recorded, has been laid down by the Supreme Court in Khushal Rao v. State of Bombay : 1958CriLJ106 and it has been held by the Supreme Court that it should be in the. form of question and answer and as far as practicable, in the words of the maker of the declaration. The same view was reiterated by the Supreme Court in: Rabi Chandra Padhan and Ors. v. State of Orissa : 1980CriLJ1257 . In Kanchy Komuramma v. State of Andhra Pradesh 1996 SCC (Criminal) 31 the doctor who certified the mental fitness of the deceased at the time of recording the statement, was not produced though the dying declaration was recorded by the Magistrate. The Supreme Court held that 'the failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration, detracts materially from the reliability of the dying declaration and it will not be safe to rely upon it. That the dying declaration has been recorded by the Judicial Magistrate, by itself, is not a proof of truthfulness of the dying declaration which, in order to earn acceptablity, has still to pass the test of scrutiny of the Court. In the present case the prosecution did not examine the doctor who has made the endorsement on the dying declaration that the patient was in a fit state of mind to depose. No other witness was examined to prove the certificate of the doctor. This infirmity renders it unsafe to rely upon the dying declaration. In the present case PW 5 Shri Ashok Kumar Jain, the then Munsif and Judicial Magistrate, Hanumangarh, recorded the dying declaration Ex.P.21. Before recording the statement, certain safe-guards were required to be observed by the Magistrate. He was required to satisfy himself that the deceased is in a proper mental state to make the statement. The deceased was admitted in the hospital and the doctor was available there. The Magistrate should have obtained the opinion of the doctor about the fitness of the patient to make the statement and to have recorded his satisfaction regarding the fitness of the patient to make the statement. Dying declaration (Ex.P.21) recorded by the Magistrate does not bear any such endorsement. He even did not take care to obtain the opinion of the doctor regarding the fitness of the patient to make the statement. The statement is neither in the question and answer form nor is it in the language of the maker (deceased). Ex.P. 17 is the requisition sent to the Magistrate for recording the statement of the deceased. Of course it bears the signatures E to F of the doctor. The endorsement of the doctor regarding fitness of the patient to give statement was made at about 5.20 a.m. as disclosed by the investigating officer. The doctor who made this endorsement has not been produced. If the doctor would have been produced, the appellants would have got an opportunity to cross-examine him regarding the fitness of the deceased in making the statement. These infirmities make the dying declaration Ex.P.21 recorded by the Magistrate as unreliable.

27. In view of the inconsistencies in the various dying declarations, the oral dying declarations made before the witnesses and the dying declaration Ex. P. 21 recorded by the Magistrate and not producing the doctor to show whether the deceased was in a fit condition of mind to make the statement and the Parcha Bayan (Ex.P. 18) no reliance can be placed on these dying declarations. The dying declaration first in the point of time indicates the case of accidental firewhile the Parcha Bayan (Ex.P. 18) implicates the three accused, viz., the present two appellants and Ram Rakh who has been acquitted by the trial Court while the dying declaration (Ex.P.21) recorded by the Magistrate implicates only two accused. These dying declarations, therefore, cannot be relied-upon or form the basis for conviction.

28. The four dying declaration gives two sets of evidence and each one of which contradicts the other. The evidence of one set of the dying declarations shows it a case of accident while the other set of the dying declarations shows it a case of homicide by three persons. One set of the evidence condemns the other set leaving the Court with no reliable or trustworthy evidence, on which the conviction of the appellants can be based.

29. It has been held by the Supreme Court in: Harchand Singh and Anr. v. State of Haryana : 1974CriLJ366 that:

If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. inevitably, the accused would have the benefit of such a situation.

In this view of the matter, looking to the infirmity in the dying declaration recorded by the Magistrate and the inconsistency in the various statements made by the deceased before the witnesses, we find ourselves unable to accept these dying declarations in order to base the conviction of the accused-appellants.

30. Except for these dying declarations there is no evidence available on record to connect the appellants with the crime. The learned trial Court was, therefore, not justified in convicting and sentencing the accused-appellants on the basis of these dying declarations. The judgment passed by the learned trial Court, therefore, deserves to be set-aside and the appellants deserve to be acquitted.

31. In the result, the appeal filed by accused-appellants Krishan and Smt. Rani Devi is allowed. The judgment, dated 6.7.95 passed by the Sessions Judge, Hanumangarh convicting and sentencing the accused-appellants for the offence under Section 302/34 I.P.C., is set-aside and the appellants are acquitted of all the charges levelled against them. They are in jail. They may be released forthwith if not required in any other case.