HIRAMAN vs. STATE OF MAHARASHTRA

REPORTABLE

Criminal Appeal No. 1288 OF 2008 Hiraman ... Appellant (s) Versus State of Maharashtra ... Respondent (s) J U D G E M E N T H.L. Gokhale J. This Criminal Appeal raises the question about the JUDGMENT relevance of dying declarations, and the approach to be adopted by the Courts with respect thereto. The appellant’s wife, Chandrakala Hiraman Murkute, died an unnatural and a very painful death at about 2 a.m. on 7.4.2000 in a village in Jamkhed Taluka of District Ahmednagar, State of Maharashtra, having suffered 91% burn injuries in the previous night leading to cardio-respiratory failure. Page 1 2 The First Adhoc Addl. Sessions Judge, Ahmednagar held the appellant responsible for the same, principally on the basis of her dying declarations, and convicted him for cruelty and murder under

his judgment and order dated 16.8.2004 in Sessions Case No.103 of 2000. The conviction U/s 302 of IPC was confirmed by the Aurangabad Bench of the High Court of Judicature at Bombay in Criminal Appeal No.31 of 2005, though the one under Section 498-A of I.P.C was set-aside for the lack of sufficient evidence. The Courts below have accepted the two dying declarations of deceased Chandrakala as giving the correct cause for the burn injuries viz. that they were caused by the appellant. They have rejected the defence of the appellant that he was nowhere near the deceased at JUDGMENT the time of the incident and that he was not responsible for the same. In view of this conviction under Section 302 I.P.C., the appellant is required to undergo imprisonment for life, and to pay a fine of Rs.500/-, in default suffer a rigorous imprisonment for three months. This judgment of the High Court dated 28.6.2005 in Crl. Appeal No. 31/2005 is being challenged for being rendered solely on the basis of dying declarations. Page 2 3 The facts leading to the present appeal are as follows:- 2. Deceased Chandrakala had been married to the appellant since a long time, and had three children from the marriage viz.,

incident, Ramesh aged about 14 years, and daughter Shobha (whose age has not been mentioned). As per the charge-sheet, the appellant is stated to have poured kerosene on Chandrakala and set her on fire at about 8 p.m. on 6.4.2000. She was admitted in the rural hospital, Jamkhed immediately at 9:15 p.m. One Dr. Eknath Mundhe (PW-5) was on duty at that time, and he recorded the history of injuries (exhibit 33) at about the same time in the following words – “H/o Homicidal burns by husband as she was not willing to perform his marriage with her sister and he was also demanding gold on 6.4.2000 at about 8 p.m.” JUDGMENT Thus as per this writing, the appellant was insisting that Chandrakala bring gold from her parents, and that he be permitted to marry her sister. Chandrakala refused to acquiesce to either of these demands, and, therefore, she was given serious burn injuries by the appellant on that fateful night. According to their younger Page 3 4 son Ramesh (DW-1) the deceased was taken to the hospital by her family members. That being so, this recording by the doctor assumes significance since it must have been made in their

for duty to that hospital, the above duty doctor informed him about the incident, and also that Chandrakala was still in a position to make a statement. PW-4 recorded the second statement of Chandrakala (exhibit 28) in the presence of PW-5 and the staff nurse after PW-5 certified that she was in a position to give a statement. Chandrakala stated that the appellant poured kerosene on her from a ten liter drum, and then set her on fire since she declined to accept his demand of a golden ring of one tola, and transfer of the land belonging to her maternal uncle to him. According to this JUDGMENT statement one neighbour Baba Saheb Vitekar had extinguished the fire, and then she was brought to the hospital. Thereafter, her thumb impression was obtained on the statement after reading it to her. This second dying declaration was treated as the First Information Report (F.I.R.) and was registered at 10:10 p.m. as Crime No. 44/2000 under Section 307 I.P.C. for attempt to murder. Chandrakala was very much in a position to make a statement at Page 4 5 that time, and was not under the influence of any drug since she was injected with sedatives only at about 10:30 p.m. At the time of recording of this statement her two sons as well as the appellant

members had taken her to the hospital. The Appellant has also stated in his statement under Section 313 of Cr.P.C that he too had gone to the hospital. Mother and brother of Chandrakala were however not present at that time as they could reach the hospital only after she had passed away. After her death the charge was altered from the one under Section 307 to the one under Section 302 I.P.C. 3. During the trial, the prosecution examined five witnesses. PW-1 Dr. Abhijit Boralkar who performed the post-mortem gave the JUDGMENT cause of death as follows:- “Death due to cardio-respiratory failure (due) to shock due to extensive burns 91% superficial to deep.” Thus, there is no dispute over the cause of death. The question is as to how she received the burn injuries. The mother (PW-2) and brother (PW-3) of Chandrakala supported her version as to why, she suffered the burn injuries viz., that appellant was insisting that she Page 5 6 fetch a golden ring, and also to transfer her maternal uncle’s land to him for last about two months, and that her refusal has led to this gruesome act by him. The defence of the appellant in this behalf

Cr.PC he indicated the probability of accidental death due to bursting of the stove. The investigating officer P.I. Kandre, however categorically stated that during examination of the place of occurrence no furnace, stove or cooking articles were found over there. The appellant examined three witnesses in his defence. Their younger son Ramesh (DW-1) stated on the other hand that his mother had committed suicide. The cause for committing the suicide as stated by Ramesh was however very flimsy viz., that he had asked his mother to give him Rs.2 for watching a movie, which JUDGMENT she had declined. This had led the appellant to scold her, because of which she went inside the house and bolted the door. Later on when Ramesh was playing outside the house, and when his elder brother and father were also outside the house, his sister Shobha who was playing at the neighbour’s house raised the alarm that Chandrakala had set herself on fire. According to Ramesh the appellant climbed on the roof, removed one of the tin sheets and Page 6 7 jumped inside, to remove the bolt of the door when it was found that the deceased was lying on the floor in a burnt condition. A close relative of the appellant viz., Mhase Nagu Vitkar (DW-2) was

of Ramesh (DW-1) is concerned, the same was discarded for the reason that it was a hearsay based on the statement allegedly made by Shobha to him and Shobha was not examined. Besides, the house of the neighbour where Shobha was supposed to have been playing, was at a distance of about 150 feet from the house of deceased, and there were many houses in between the two houses. Therefore, her statement of coming to know that Chandrakala had set herself on fire could not be accepted, since Shobha would not have been able to know the same from such a distance. Similarly, JUDGMENT the statement of Ramesh that his father had jumped into the house after removing the tin sheet of the roof could not be accepted for the reason that though he is claimed to have suffered an injury in the process, at the time of his arrest in the night of 6.4.2000, the appellant declined to go to any hospital (as the arrest panchnama records) when asked whether he suffered from any pain or injury. This leads to the discarding of the statement of Dr. Satpute (DW-3) Page 7 8 also, who is said to have examined the accused two days subsequent to the incident, on 8.4.2000, and noticed abrasions on his left elbow and arm, and a burn injury on left elbow. The

was a person of 70 years of age who accepted that he could not see beyond 15-20 feet. He would not have come to know of the incident when his house is situated at a distance of 150 feet from the place of occurrence. Consideration of the submissions on facts: 4. The question before us is as to how Chadrakala received the burn injuries. There are two versions before us viz., that the appellant poured the kerosene on her, and the other that the deceased poured it on herself. The version given by the deceased is JUDGMENT contained in her statements recorded at the earliest opportunity by two different persons who had no reason to record what they have recorded, unless she had stated so. And considering the solemn occasion when she was making the statements, there was no reason to discard the same as being untrue. The first statement was recorded at 9:15 p.m., i.e. just one hour and fifteen minutes after the incident when she was brought to the hospital. The second Page 8 9 statement was also recorded within an hour thereafter at about 10:10 p.m. Chandrakala was fully conscious at that time and was required to be given sedatives only at about 10:30 p.m. This

family members including the appellant were present. Besides, her brother and mother have subsequently confirmed her statement that her husband was greedy and used to harass her for his demands. There was no occasion of their tutoring her since they reached the hospital only after her death. It was submitted on behalf of the appellant that the failure of the prosecution to examine Baba Saheb Vitekar (who extinguished the fire) was fatal. In this connection, we must note that this Baba Saheb was not present when kerosene was poured on Chandrakala and the fire started. He JUDGMENT came lateron to extinguish the fire and could not have thrown any light as to how the incident took place. 5. The learned Counsel for the appellant principally submitted that as far as the two dying declarations of Chandrakala are concerned, there was no corroboration to the same, and the uncorroborated dying declarations could not be accepted. It was contended that there is a variation between the two dying Page 9 1 declarations with respect to the reasons for setting her on fire. Now as far as this variation between the two statements is concerned, it is only this much that in her first statement Chandrakala had stated

demanding gold from her, and was asking her to marry her sister to him for which she was not agreeable. In the second dying declaration she had once again stated that he was demanding gold from her, but had also added that he had sought the transfer of the land belonging to her maternal uncle to him. This time she has not stated about his insisting to marry her sister. The demand for gold is the common factor in both the statements. In the first statement she has additionally referred to his insisting on marrying her sister, whereas in the second one she has referred to his demand for the JUDGMENT agricultural land of her maternal uncle. The Sessions Court and the High Court have not given any importance to this variation, and in our view rightly so. This is because one must understand that Chandrakala had suffered 91% burn injuries. Earlier, the duty- doctor had asked her as to how the incident had occurred, and later on the Head Constable on duty had repeated the query. Any person in such a condition will state only that much which he or she can Page 10 1 remember on such an occasion. When asked once again, the person concerned can not be expected to repeat the entire statement in a parrot-like fashion. One thing is very clear in both the statements

count. Besides, it is relevant to note that her mother and brother have both corroborated her statement that the appellant was demanding gold and land from her. Initially Chandrakala spoke about this demand for gold and later also for the land. This cannot in any way mean an attempt to improve. Similarly, the non-mention on the second occasion of his insistence to marry her sister cannot mean an omission to discredit her statements. 6. As against that, as far as the version put up by the appellant is concerned, it is based on the hearsay version of his daughter JUDGMENT Shobha who was supposed to be playing at a house at a distance of 150 feet from appellant’s house. She has not been examined and her version as reproduced by Ramesh is pressed into service, and an attempt is thus made to put up a probable parallel story though the story is highly improbable bordering on falsehood. It is not placed on record that Chandrakala was suffering from any psychological disorder either. The Courts below rightly rejected this parallel Page 11 1 version as there is no foundation to the same. This is as against the one which is propounded by the prosecution, which in the circumstances is the only acceptable version. Initially, the appellant

to an accident. This can be seen from his answer to Question No.20 in the course of statement U/s 313 of Cr.PC, where he stated as follows:- “I had done nothing. Electricity was off. I was not present at the house. She might be doing cooking at stove. Whether there was outburst of stove is not known to me. My son had told me that his mother had been injured and then I went at the hospital. Thereafter, Police caught me and took me to jail. Thereafter, I was there inside. I had nothing to say more.” Thus at that stage he did not state that he jumped into the house to rescue his wife. Besides, he stated that he did not want to lead any JUDGMENT defence witness. Nearly, two years later he examined defence witnesses on 15.7.2004 to raise the plea of suicide, which was clearly an afterthought. It is very clear that Ramesh (DW-1) was put up to save the appellant from the accusation. It is also relevant to note that the appellant was absconding for a period of over 20 months during the trial from 26.6.2002 to 14.4.20014, and it was Page 12 1 much later that he surrendered himself. There was no reason for him to abscond if he had not indulged in the act of pouring kerosene on his wife. Submissions on Law 7. The learned Counsel for the appellant relied upon the judgment of a bench of two judges of this Court in P. Mani Vs. State of Tamil Nadu reported in [2006 (3) SCC 161] to canvass that uncorroborated dying declaration must not be accepted. In this connection, it must be firstly noted that in that case the son and daughter of the deceased lady (who had died due to burn injuries) had categorically stated that she was suffering from depression and she had made an attempt to commit suicide a week prior to the date of the incident. Besides, there was no material to show that the JUDGMENT appellant was absconding or he could not be arrested despite attempts having been made therefor. Even in that matter the Court specifically observed as follows:- “ 14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable.” Thus it must be noted that this decision was rendered in the facts of that case where the dying declaration was not found to be wholly Page 13 1 reliable. The judgment does not in any way deviate from the well settled proposition that a dying declaration can be the sole basis for conviction.

the defect with respect to the statement recorded by the doctor that there is absence of time of recording it, but the time can be ascertained from the marginal endorsement made thereon. A further ground has been raised in this appeal that the second statement of the deceased recorded by Head Constable Kharat (PW- 4) can also not be treated as a dying declaration and cannot be read as an evidence since it was neither recorded by the gazetted officer i.e. Chief Judicial Magistrate nor in question-answer form. The appellant has relied upon observation of this Court in sub-para (5) of JUDGMENT para 16 of the judgement of a bench of three judges in Khushal Rao Vs. State of Bombay reported in [AIR 1958 SC 22] in this behalf. The submission is misconceived for the reason that the proposition in sub-para (5) of para 16 cannot be cut off from the other propositions in this para which lay down the other parameters governing the approach towards the relevance of the dying declarations. When we look to those parameters, there is no reason Page 14 1 not to accept that the dying declarations of Chandrakala gave the real cause of her burn injuries. Chandrakala having suffered 91% burn injuries, there was hardly any time to secure the presence of

question-answer form. Absence of these factors itself will not take away the evidentiary value of the recorded statement. The parameters from this paragraph are as follows:- “ 16 . On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) 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; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that 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; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to JUDGMENT Page 15 1

9. In this behalf we may as well profitably refer to paragraph 11 of this very judgment with respect to the rationale in accepting the version contained in the dying declaration. This Court (per B.P. Sinha, J. as he then was) observed in this para 11 as follows:- “11. The legislature in its wisdom has enacted in Section 32(1) of the Evidence Act that “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question”, such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact. This provision has been made by the legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the legislature, that test is supplied by the solemn occasion when it was made, namely, at a time JUDGMENT Page 16 1

JUDGMENT (emphasis supplied) 10. The judgment in Khushal Rao has been consistently referred to and followed. Thus, after referring to the propositions in Page 17 1 Khushal Rao, this Court observed in para 7 of Mannu Raja Vs. State of Madhya Pradesh reported in [1976 (3) SCC 104] to the following effect:-

JUDGMENT (emphasis supplied) 11. Khushal Rao and Mannu Raja have been referred to and followed in Gulam Hussain Vs. State of Delhi reported in [2000 (7) SCC 254]. In para 8 thereof, this Court observed as follows:- Page 18 1

12. In a case almost identical to the present one, in Kanaksingh Raisingh Vs. State of Gujarat reported in [AIR 2003 SC 691] , this Court upheld the conviction in the case of pouring kerosene and setting the wife on fire by holding that so long as the dying declaration is voluntary and truthful, there was no JUDGMENT reason why it should not be accepted. In Babu Lal Vs. State of State of Madhya Pradesh reported in [AIR 2004 SC 846] , this Court had following to say with respect to dying declaration in para 7 which is as follows:- “ 7 ………..A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity Page 19 2

13. The appellant had sought to create a doubt about the prosecution case. In this behalf we must note that a doubt sought to be raised has to be a credible and consistent one and must be one which will appeal to a reasonable mind. We may profitably refer JUDGMENT to what this Court has said in this behalf in some of the leading judgments. Thus, in Shivaji Sahebrao Bobade Vs. State of Maharashtra reported in [AIR 1973 SC 2622] Krishna Iyer, J. observed for a bench of three judges in paragraph 6 as follows:- “6.……..The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and Page 20 2

“………a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent……..” 14. The propositions in Shivaji Sahebrao Bobade were quoted with approval in State of U.P. Vs. Krishna Gopal reported JUDGMENT in [AIR 1988 SC 2154], and further this Court observed as follows in paragraph 13 (per M.N. Venkatachaliah, J. as he then was):- “13.…….. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person Page 21 2

1990 SC 209], this Court observed at the end of para 4 as follows:- “4.……There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. See the observations of Lord Denning in Bater v. Bater, (1950) 2 All ER 458 at p.459, but the doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.” JUDGMENT 16. These propositions have been consistently followed by this Court in Gangadhar Behera Vs. State of Orissa reported in [AIR 2002 SC 3633], Sucha Singh Vs. State of Punjab reported in [2003 (7) SCC 643] and Lakhan Vs. State of Madhya Pradesh reported in [2010 (8) SCC 514]. Hence, the Conclusion: Page 22 2 17. Thus as can be seen, by enacting Section 32 (1) in the Evidence Act, the legislature has accorded a special sanctity to the statement made by a dying person as to the cause of his own death.

made. Besides, when the statement is made at the earliest opportunity without any influence being brought on the dying person, there is absolutely no reason to take any other view for the cause of his or her death. The statement has to be accepted as the relevant and truthful one, revealing the circumstances which resulted into his death. Absence of any corroboration can not take away its relevance. Exaggerated doubts, on account of absence of corroboration, will only lead to unmerited acquittals, causing grave harm to the cause of justice and ultimately to the social fabric. With JUDGMENT the incidents of wives being set on fire, very unfortunately continuing to occur in our society, it is expected from the Courts that they approach such situations very carefully, giving due respect to the dying declarations, and not being swayed by fanciful doubts. 18. In the present case there are two dying declarations recorded at the earliest opportunity. They contained the motive for the crime, and the reasons as to why the deceased suffered the Page 23 2 burn injuries viz., the greed of the appellant to which the deceased had refused to succumb. As far as her statements viz., that the appellant had poured kerosene and set her on fire is concerned,

at the earliest opportunity and on a solemn occasion. The defence put up a story which is totally inconsistent with the facts which have come on record, and is a clear afterthought and therefore unacceptable. In fact this case clearly shows an attempt to put up a totally false defence. The prosecution has undoubtedly proved its case beyond any reasonable doubt. 19. In view of the above legal position and facts on record, we see no reason to interfere in the judgment and order rendered by the learned Sessions Judge as modified and confirmed by the High JUDGMENT Court. 20. The appeal is, therefore, dismissed. …………………………………..J. ( A.K. Patnaik ) …………………………………..J. ( H.L. Gokhale ) Page 24 2 New Delhi Dated: January 31, 2013 JUDGMENT Page 25