Full Judgment Text
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CASE NO.:
Appeal (crl.) 244 of 2006
PETITIONER:
Dayal Singh
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 03/05/2007
BENCH:
G.P. Mathur & A.K. Mathur
JUDGMENT:
J U D G M E N T
G. P. MATHUR, J.
1. This appeal, by special leave, has been preferred against the
judgment and order dated 28.1.2005 of Bombay High Court
(Aurangabad Bench), by which the appeal filed by the appellant Dayal
Singh was dismissed and his conviction under Section 498-A and 302
IPC and sentence of six months R.I. and imprisonment for life
respectively, as recorded by the learned Second Additional Sessions
Judge, Nanded, by the judgment and order dated 23.3.1990, were
affirmed.
2. The case of the prosecution, in brief, is that the deceased
Tejinder Kaur, daughter of the complainant PW.1 Chamanbai, was
married to the appellant five or six years prior to the incident and she
had two daughters, Pritpal and Sharanpal. The appellant started ill-
treating Tejinder Kaur right from the beginning and used to pressurize
her to bring money from her parents. About four months prior to the
incident, which took place on 22.3.1989, the appellant took Tejinder
Kaur to her mother’s house, who also resided in Nanded, and after
making a demand of Rs.5,000/- he came back alone leaving his wife
there. On the next day, he went to the house of his mother-in-law
Chamanbai with a naked sword in his hand and asked Tejinder Kuar
to accompany him and also bring Rs.5,000/-. The money could not be
paid by the mother of the deceased. It is alleged that after Tejinder
Kaur came back to her husband’s house, she sent some letters to her
mother through a milk vendor complaining about ill-treatment being
meted out to her. At about 3.00 p.m. on 22.3.1989, Chamanbai
received information that Tejinder Kaur had received burn injuries
and she was admitted in the Civil Hospital. She immediately rushed
to the hospital and on enquiry Tejinder Kaur disclosed that she was set
ablaze by the accused by pouring kerosene on her person. Chamanbai
along with her son Sher Singh went to Police Station Wazirabad,
where an FIR of the incident was lodged at 6.30 p.m. P.S.I. Murkute
visited the house of the appellant at 7.00 p.m. on 22.3.1989 which
consisted of only one room and seized half burnt sari, petticoat,
woolen blanket, mattresses, quilt, pillow, etc. He found two sunmics
cots partially burnt, a stove, a kerosene tin and an empty gas cylinder.
He then visited the hospital and instructed Head Constable PW.10
Dattatray Vinkar to record the statement of Tejinder Kaur when she
regained consciousness. Tejinder Kaur regained consciousness at
about 10.30 p.m., information regarding which was given by her
brother PW.4 Sher Singh to Head Constable Dattatray Vinkar. The
Head Constable immediately summoned PW.9 Dr. Mohammad
Khursheed Ahmad, Duty Medical Officer, who examined the injured
and found her conscious. Thereafter, the statement of Tejinder Kaur
was recorded by PW.10 where she gave details of the occurrence,
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namely, demand of dowry by the appellant and how the appellant had
set her on fire by pouring kerosene. The statement Ex.31 was
recorded by PW.10 and Dr. Khursheed Ahmad made an endorsement
thereon that the patient was conscious throughout her statement. At
about 00.45 hours on 23.3.1989 Tejinder Kaur succumbed to her
injuries. After inquest had been held, the body was sent for post
mortem examination, which was carried out by two doctors who
found 83% burns thereon. According to the opinion of the doctors,
the death was due to the extensive burns which caused hypovolenic
and neurogenic shock leading to cardio- respiratory failure. The
seized clothes were sent for medical examination and the report
thereof indicated presence of kerosene.
3. After completion of the investigation, charge-sheet was
submitted against the appellant under Section 498-A and 302 IPC.
The appellant pleaded not guilty and claimed to be tried. His main
defence was that he had never made any demand for money and in
fact he had deposited some money in the account of Tejinder Kaur
and had also purchased land in her name. He further stated in his
statement which was given in writing that Tejinder Kaur caught fire
when she was cooking food on stove and at that time he was not
present in the house. He also stated that after coming to know about
the fire, he rushed inside the house and tried to extinguish the fire, in
which process he also received burn injuries and he remained
admitted in the hospital for treatment till 8.4.1989. The learned
Sessions Judge believed the case of the prosecution which primarily
rested on the dying declaration recorded by PW.10 and convicted and
sentenced the appellant, as stated above. The High Court affirmed
the findings recorded by the learned Sessions Judge and dismissed the
appeal.
4. The present appeal has been filed under Article 136 of the
Constitution. It is well settled that in an appeal under Article 136 of
the Constitution, the Court will normally not enter into reappraisal or
the review of evidence unless the trial Court or the High Court is
shown to have committed an error of law or procedure and the
conclusions arrived at are perverse. The Court may interfere where
on proved facts, wrong inference of law are shown to have been
drawn. (See Ramanbhai Naranbhai Patel v. State of Gujarat (2000) 1
SCC 358 and Chandra Bihari Gautam v. State of Bihar (2002) 9 SCC
208). We will, therefore, briefly refer to the evidence in order to
examine whether the case comes within the parameters of Article 136
of the Constitution which may warrant interference by this Court.
5. PW.1 Chamanbai (mother of the deceased) has deposed that the
marriage of Tejinder Kaur was performed with the appellant Dayal
Singh about six years prior to the incident. After her marriage, she
started living with the appellant at Gurdwara Gate No.2, Nanded.
Initially, the parents, brothers and sisters of the appellant were all
residing together but some time thereafter, the appellant started living
separately. The appellant used to ill-treat Tejinder Kaur and used to
ask her to bring money from her parents. Whenever Tejinder Kaur
visited her parental home, she used to complain about the ill-treatment
being meted out to her. About 4 months prior to the incident, the
appellant came along with Tejinder Kaur to her parental house and
demanded Rs.5,000/- from his mother-in-law. He held out a threat
that Tejinder Kaur should not return until she brought Rs.5,000/-.
Next day at about 8.00 p.m. he came armed with a sword and
threatened Tejinder Kaur that he would kill her if the amount was not
given. She has further deposed that she begged the accused not to
behave in that manner as she had no money. Thereafter the appellant
took Tejinder Kaur along with him and went away on his motor cycle.
She also produced two letters which were allegedly sent by the
deceased to her through a milk vendor. Regarding the main incident,
she deposed that at about 3.00 p.m. on 22.3.1989 one Biru Singh came
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and informed that Tejinder Kaur had received burn injuries and was in
the hospital. She immediately rushed to the Civil Hospital and saw
Tejinder Kaur admitted in the ward. On enquiry she informed her
mother that her husband Dayal Singh had set her on fire by pouring
kerosene on her body. After learning about the incident, the witness
along with her son Sher Singh went to the Police Station Wazirabad
and lodged an FIR of the incident. She has further deposed that some
time after she had returned, Tejinder Kaur regained consciousness.
Head Constable Dattatray Vinkar then asked the family members to
leave the ward and thereafter statement of Tejinder Kaur was
recorded. Though she was subjected to a lengthy cross-examination,
but she stuck to her statement that the appellant used to make demand
of money and used to threaten Tejinder Kaur and she was afraid of
him. PW.4 Sher Singh is brother of Tejinder Kaur. He has
corroborated the statement of his mother Chamanbai regarding the ill-
treatment being meted out by the appellant to his sister and the
demand of money and the earlier incident when the appellant had
come armed with a sword and had given threats when the money was
not paid to him. He has further deposed that at about 10.00-10.30
p.m. Tejinder Kaur regained consciousness and disclosed to him and
his mother that the accused had sprinkled kerosene on her and had set
her on fire. He has also deposed that when the Head Constable had
called the doctor for recording the statement of the victim, he and
other relations were asked to leave the ward.
6. PW.2 Dr. Sanjay has deposed that he is M.S. in General
Surgery and was posted in Civil Hospital, Nanded, as a Duty Medical
Officer on 22.3.1989. He had admitted Tejinder Kaur in the hospital
in Ward No.4 and at that time she was conscious. PW.10 Head
Constable Dattatray Vinkar has deposed that he was posted on duty in
the hospital from 8.00 p.m. on 22.3.1989 till 8.00 a.m. on the next
day. At about 10.30 p.m. he received orders from P.S.I. Murkute to
record statement of Tejinder Kaur. He, therefore, went to Ward No.4
where Tejinder Kaur was admitted and after finding her in a conscious
state, he went to Dr. Khursheed Ahmad, Duty Medical Officer, and
requested him to come and examine the victim as her statement had to
be recorded. Dr. Khursheed Ahmad then examined the victim and
informed him that she was conscious and he could record her
statement. The witness has further deposed that he put questions to
Tejinder Kaur to which she gave replies in Marathi, which he
recorded in his own hand. In her statement (Ex.31) Tejinder Kaur
stated that her marriage with the appellant had taken place 5 years
back. At 2.00 p.m. on that day i.e. 22.3.1989 there was a quarrel
between her and her husband on account of domestic reasons, namely,
about visiting her mother’s house and she was asked to bring money
from her mother. The appellant then tore her blouse and sari and tried
to drag her out of the house. She protested and said that she will not
leave the house. At that stage, the appellant poured kerosene upon her
and set her on fire by lighting a match stick. When she caught fire,
she cried for help, on which her mother-in-law and neighbours came
there and extinguished the fire by pouring water. Her daughter
Sharanpal, who was sitting near her, had also sustained some burns
and was taken outside by the appellant. She further stated that as she
was wearing a polyester sari, she immediately caught fire and
sustained burns in her chest, abdomen, legs and private parts. Her
father-in-law brought her to the hospital for treatment. The statement
was thumb marked by the victim. Thereafter, Dr. Khursheed Ahmad
made an endorsement on the same and put his signatures thereon.
The witness has categorically deposed that whatever was stated by
Tejinder Kaur was recorded in her own words. In his cross-
examination, he stated that the information had earlier been sent to
Special Judicial Magistrate for recording statement of the victim.
The recording of the statement commenced at 22.50 hours on
22.3.1989 and it took about 15-20 minutes.
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7. PW.9 Dr. Mohammad Khursheed Ahmad has deposed that he is
MBBS & MD and was posted as Medical Officer in SGGM Hospital,
Nanded for the past four years. He was on duty on 22.3.1989 when
he was called to Ward No.4. He examined Tejinder Kaur at about
11.00 p.m. and found that she was conscious and was in a position to
give her statement. The Head Constable then recorded her statement
and he was throughout present by her side. After the statement had
been recorded, he put an endorsement on the same to the effect \026
"Patient is conscious throughout statement". He had put his signature
below that endorsement. In his cross-examination he has reiterated
that he had examined Tejinder Kaur and had a talk with her and after
being satisfied that she was conscious, he asked the Head Constable to
record her statement. He was subjected to a fairly lengthy cross-
examination but nothing has come out which may discredit his
testimony.
8. The statements of PW.1 Chamanbai who is the mother and
PW.4 Sher Singh who is the brother of the deceased, conclusively
establish the fact that the appellant was ill-treating the deceased
Tejinder Kaur as his demand for bringing money from her parental
home had not been fulfilled. These witnesses have also deposed that
Tejinder Kaur gave a statement when she was admitted in the hospital
that it was the appellant who had poured kerosene upon her and had
set her on fire. A formal dying declaration of Tejinder Kaur was
recorded by PW.10 Dattatray Vinkar, Head Constable in the presence
of PW.9 Dr. Khursheed Ahmad who was the Duty Medical Officer in
the hospital. Dr. Khursheed Ahmad is a highly qualified person being
MBBS and MD and was posted in the Civil Hospital, Nanded, and his
duty hours were from 8.00 p.m. on 22.3.1989 to 8.00 a.m. on the
following day. He has clearly deposed that he had examined the
victim and had talked to her and she was conscious throughout when
her statement was being recorded by PW.10. There is absolutely no
reason to cast any doubt on the testimony of PW.10 Dattatray Vinkar
and PW.9 Dr. Md. Khursheed Ahmad. Both are government servants
and they did not at all know the appellant Dayal Singh and had
absolutely no reason to fabricate a document, viz., the dying
declaration to falsely implicate him in a murder case.
9. Shri M.N. Rao, learned senior counsel for the appellant, has
submitted that the original dying declaration is in Marathi language
and Tejinder Kaur being a sikh lady, she could not have made a
statement in the said language as in normal course of events, she
would have spoken in Gurmukhi. The evidence shows that even the
parents of Tejinder Kaur were residing in Nanded which is in
Maharashtra and is a Marathi speaking area. After marriage she
continued to live in the said place, viz., Nanded. It has come in the
statement of her brother PW.4 Sher Singh that Tejinder Kaur had
studied upto 10th class in a Marathi medium school. Having lived in
Nanded and having studied upto 10th class in a Marathi medium
school, there is nothing abnormal in Tejinder Kaur giving her
statement in Marathi language. That apart, the fact that she gave a
statement \026 Ex.31 has not only been deposed to by PW.10 Dattatray
Vinkar, Head Constable, but also by PW.9 Dr. Khursheed Ahmad
who is highly qualified and responsible government servant. There is
thus absolutely no reason to doubt the authenticity of the dying
declaration.
10. Shri Rao, learned senior counsel, has next submitted that the
dying declaration has not been recorded by a Magistrate but by a Head
Constable and, therefore, it will not be safe to rely upon the same. He
has also challenged the dying declaration on the ground that the same
was not recorded in a question-answer form but has been recorded in
the form of a narrative.
11. The law regarding the dying declaration and the value which is
to be attached to it has been examined in considerable detail in State
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of Karnataka v. Shariff (2003) 2 SCC 473, by a Bench of which one
of us was a member and paragraphs 18, 19, 20, 22 and 23 of the
decision are being reproduced below :-
18. The earliest case in which the law on the point of
dying declaration was considered in detail by this Court
is Khushal Rao v. State of Bombay AIR 1958 SC 22.
The Court ruled 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
must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made;
it cannot be laid down as a general proposition that a
dying declaration is a weaker kind of evidence than other
pieces of evidence; a dying declaration stands on the
same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with
reference to the principles governing the weighing of
evidence. It has been further held 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
statement has been made in the absence of the accused
who had no opportunity of testing the veracity of the
statement by cross-examination. But once the Court has
come to the conclusion that the dying declaration was the
truthful version as to the circumstances of the death and
the assailants of the victim, there is no question of further
corroboration.
19. In State of Uttar Pradesh v. Ram Sagar Yadav (1985)
1 SCC 552 the Court speaking through Chandrachud,
C.J. held as under:
"It is well settled that, as a matter of law, a dying
declaration can be acted upon without
corroboration. See Khushal Rao v. State of
Bombay AIR 1958 SC 22; Harbans Singh v. State
of Punjab AIR 1962 SC 439; Gopalsingh v. State
of M.P. 1972(3) SCC 268. There is not even a rule
of prudence which has hardened into a rule of law
that a dying declaration cannot be acted upon
unless it is corroborated. The primary effort of the
Court has to be to find out whether the dying
declaration is true. If it is, no question of
corroboration arises. It is only if the circumstances
surrounding the dying declaration are not clear or
convincing that the Court may, for its assurance,
look for corroboration to the dying declaration....."
20. In K. Ramachandra Reddy and Anr. v. The Public
Prosecutor (1976) 3 SCC 618 it was held that a great
solemnity and sanctity is attached to the words of a dying
man because a person on the verge of death is not likely
to tell lies or to concoct a case so as to implicate an
innocent person yet the Court has to be on guard against
the statement of the deceased being a result of either
tutoring, prompting or a product of his imagination. It
was further held that the Court must be satisfied that the
deceased was in a fit state of mind to make the statement
after the deceased had a clear opportunity to observe and
identify his assailants and that he was making the
statement without any influence or rancour. Once the
Court is satisfied that the dying declaration is true and
voluntary it can be sufficient to found the conviction
even without any further corroboration. In Pothakamuri
Srinivasulu v. State of AP (2002) 6 SCC 399 it has been
held that if the deceased made statement to the witnesses
and their testimony is found to be reliable the same is
enough to sustain the conviction of the accused. In
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Mafabhai Nagarbhai Raval v. State of Gujarat (1992) 4
SCC 69 it was held that the Doctor who has examined the
victim was the most competent witness to speak about
her condition.
22. The other reason given by the High Court is that the
dying declaration was not in question-answer form. Very
often the deceased is merely asked as to how the incident
took place and the statement is recorded in a narrative
form. In fact such a statement is more natural and gives
the version of the incident as it has been perceived by the
victim. The question whether a dying declaration which
has not been recorded in question-answer form can be
accepted in evidence or not has been considered by this
Court on several occasions. In Ram Bihari Yadav v. State
of Bihar and Ors. (1998) 4 SCC 517, it was held as
follows:
"It cannot be said that unless the dying declaration
is in question answer form, it could not be
accepted. Having regard to the sanctity attached to
a dying declaration as it comes from the mouth of
a dying person though, unlike the principle of
English law he need not be under apprehension of
death, it should be in the actual words of the maker
of the declaration. Generally, the dying declaration
ought to be recorded in the form of questions and
answers but if a dying declaration is not elaborate
but consists of only a few sentences and is in the
actual words of the maker the mere fact that it is
not in question-answer form cannot be a ground
against its acceptability or reliability. The mental
condition of the maker of the declaration, alertness
of mind, memory and understanding of what he is
saying, are matters which can be observed by any
person. But to lend assurance to those factors
having regard to the importance of the dying
declaration, the certificate of a medically trained
person is insisted upon...."
23. In Padmaben Shamalbhai Patel v. State of Gujarat
(1991) 1 SCC 744 it was held that the failure on the part
of the medical men to record the statement of the
deceased in question-and-answer form cannot in any
manner affect the probative value to be attached to their
evidence. This view was reiterated in State of Rajasthan
v. Bhup Ram (1997) 10 SCC 675 and Jai Prakash and
Ors. v. State of Haryana (1998) 7 SCC 284.
12. In Kulwant Singh v. State of Punjab (2004) 9 SCC 257 it has
been held that it is not essential that a dying declaration should be
made only before a Magistrate. Section 32 of the Evidence Act
nowhere states that the dying declaration must be recorded in the
presence of a Magistrate or in other words any statement which has
not been recorded before the Magistrate cannot be treated to be dying
declaration. In Vidhya Devi v. State of Haryana (2004) 9 SCC 476
challenge to a dying declaration recorded by a police officer in the
presence of doctor, who had given an opinion that the deceased was in
a fit state of mind to make the statement, was held to be credible and
reliable and sufficient to establish the guilt of the accused.
13. PW.10 Head Constable Dattatray Vinkar has deposed that
information was sent to the Magistrate. The date of incident viz.
22.3.1989 was "Holi" and being an occasion of festivity it is possible
that the Magistrate may not have been present at his residence or the
information may not have been conveyed to him personally. We do
not find any ground on which the dying declaration recorded by
PW.10 which contains a certificate by PW.9 Dr. Khursheed Ahmad
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which adds to its authenticity should be discarded or should not be
acted upon.
14. Mr. Rao has next submitted that Investigating Officer did not
record the statements of PW-9 Dr. Mohammad Khursheed Ahmad and
PW-10 Dattatray Vinkar under section 161 Cr.P.C. during the course
of investigation and, therefore, their testimony should not be relied
upon. In support of his submission he has relied upon certain
observations made in Ram Lakhan Singh and others vs. State of Uttar
Pradesh (1977) 3 SCC 268. It may be noticed that PW-9 and PW-10
are not witnesses of actual occurrence, namely, the pouring of
kerosene by the appellant on Tejinder Kaur and setting her on fire.
They are witnesses of recording of dying declaration and the
certificate given by the doctor regarding the mental condition of the
victim. It is not the case of the appellant that dying declaration was
not immediately sent to the court of concerned magistrate or that its
copy was not given to him in accordance with section 207 Cr.P.C.
before the commitment of the case. In such circumstances the mere
fact that the Investigating Officer did not record the statement of the
aforesaid two witnesses under section 161 Cr.P.C. can hardly have
any bearing. In Tilkeshwar Singh and others vs. The State of Bihar
AIR 1956 SC 238 statements of three witnesses were jointly recorded
by the Investigating Officer in violation of section 161(3) Cr.P.C. It
was contended that the evidence of the said three witnesses in court
was inadmissible as there was no record of their statement under
section 161 Cr.P.C. The contention was repelled and it was held that
while the failure to comply with the requirements of section 161(3)
Cr.P.C. might affect the weight to be attached to the evidence of the
witnesses, it does not render it inadmissible. In the facts and
circumstances of the present case we are of the opinion that the
testimony of PW-9 and PW-10 cannot be discarded on the ground
urged by the learned counsel for the appellant and the trial court and
the High Court rightly relied upon their statement which was given in
court.
15. We have given out careful consideration to the material on
record. We are fully satisfied that the charge against the appellant is
fully established from the evidence on record and there is absolutely
no ground to take a different view from what has been taken by the
learned Sessions Judge and also by the High Court.
16. In the result, the appeal fails and is hereby dismissed.