Bench : Kurian Joseph, Abhay Manohar Sapre
Criminal Appeal No. 534-535/2012
Statement of Facts :
Appellants were Accused persons in this case, where they had been charged under Section 498-A read with Section 304-B, 34 of IPC for having killed the deceased wife of Accused/Appellant no.2. The Accused No. 1 was Father in law and Accused No. 3 being elder brother of the deceased and Accused No. 4 was younger brother of the deceased. As per the allegations levelled against Accused persons/appellants the accused no. 2 and deceased got married on 14th April, 1995 and the deceased wife was ill-treated due to non-fulfilment of demand of dowry. After such incidents, the case was got registered under section 498-A read with Section 323 of IPC which was not pursued. However, even after such complaints, the attitude of accused as alleged, not changed and on 18th June, 1998 the deceased was beaten and thrown out of house of in laws and also the kerosene was sprinkled on her personal and set her on fire. Consequently, she received 45 percents of burn injuries and in spite of changing so many hospitals and doctors, she died 4th August, 1998. During the treatment a dying declaration was recorded by ASI, who later was appeared as PW-16. On her death the post mortem was also done.
Procedural History :
The Accused persons were tried under aforesaid sections and the Trial Court after discarding the Dying Declaration relied up on evidences of prosecution witnesses including PW-5-Doctor and PW-6- Tehsildar and resultantly, the Court denied the story of prosecution as to burning injuries of deceased caused by the Accused persons and as such acquitted the accused persons under section 304-B of IPC. But, the Court after considering evidences establishing cruelty on the part of Accused persons convicted them under Section 498-A of IPC. However, the prosecution having not satisfied with the judgement approached before Hon’ble High Court challenging judgement of Trial Court specifically the acquittal of accused persons under Section 304-B of IPC. Hon’ble High Court discussed the case and concluded that the dying declaration of deceased found trustworthy and true, and also was not influenced, which gave a graphic account of earlier occurrence, in which the deceased was attacked by accused persons and also in which the demand of dowry was made by them. The Court refused to accept any doubt as to truthfulness of the dying declaration. Hence, Hon’ble High Court by convicting Accused persons/Appellants under Section 304-B of IPC, allowed the appeal of State. Finally, the Accused persons/Appellants presented appeal before the Supreme Court.
The issue for the decision under this case was ‘whether in the view of facts, circumstances and evidences of the case, the conviction of accused persons/ appellants imposed by Hon’ble High Court is justifiable’.
While the appeal before the Supreme Court was pending the Appellant/accused no.1 and 2 (Father in law and Mother in law of the deceased) died. As such, there were remaining three appellants in this case, namely, Husband, Elder brother and Younger brother of the deceased. The Court after going through the case and hearing both sides, observed that, the Counsel for Appellants/accused persons vehemently submitted that, the lower Courts unjustifiably convicted Appellants/accused persons under those sections. On the other hand the Counsel for Respondent-State opposed the submission of Appellants’ Counsel and supported the convictions orders of lower Courts as they are based on correct appreciation of evidences after detailed discussion thereupon. As the matter is appealed against decision of High Court convicting Appellants/Accused under section 304-B of IPC, therefore, this Court opted to consider the controversies related to the conviction under Section 304-B based on dying declaration. The Court considered the evidence of Prosecution Witness no. 16-ASI who had recorded concerned dying declaration of the deceased and also considered the medical evidence. The early background of recording such dying declaration was that when the request as to recording it was came before First Divisional Magistrate, he had directed the Executive Magistrate-Tehsildar thereof to record the said dying declaration, as such this Executive Magistrate-Tehsildar took ASI-prosecution witness no. 16 with him and as such the dying declaration was recorded. PW-16 i.e. ASI in his evidence stated that, he had recorded the statement on dictation of Tehsildar, to whom the deceased made statement inside the gate of ward and on recording such statement the Ex. PM. Chander Bhan and the brother of the deceased and also deceased herself put their signatures and thumb mark on the Statement and such Statement was attested by Executive Magistrate-Tehsildar. Similarly, the Court considered the evidence of prosecution witness no. 1 who was the first Doctor, while the deceased was brought to the Community Health Centre. The PW-1 described the burn injuries sustained to the deceased and stated that the burn injuries were about 45 percent approximately. It was pointed by the Court in his evidence that, no other injuries other than such burn injuries were caused by other weapon found on deceased person’s person. And after having regard to the injuries it was noted that the nature of such injuries were indicating that the fire would have extinguished immediately after the clothes were caught by it. Besides, the Court had gone through all other relevant evidences including that of PW-9- Doctor of Nursing Home who treated deceased and of PW-2-Doctor of General Hospital who conducted post mortem on deceased.
The Court finally, after having considered the evidences especially statements made by the prosecution witnesses started concluding that, the facts of the case were showing that the Dying declaration so recorded in this case, did not come under the provision of Section 32(1) of the Evidence Act. Hence the Court denied the relevancy of Dying declaration as to this case on several grounds including that though the occurrence was of 18th June 1998 and deceased died after around two month i.e. in August, 1998, the said statement of deceased was recorded on the same day of occurrence. Also ASI-PW1 had recorded the statement of Tehsildar and not of deceased even though the case was not one of translation. Moreover, the Statement concerned, did not related to cause of death or circumstances thereof. The Court further, pointed that, the occurrence was of 18th June and the deceased was impatient to the Community Health Centre initially and thereafter she was taken to the General hospital and till her death she was being there at General Hospital only. And the evidences including that of prosecution witness and medical one, clearly provided that the death is not caused due to burn injuries, however, the same is caused because of septicemia and infections and also due to improper medical treatment and care. The Court had also considered the detailed analysis of the Section 32(1) of the Evidence Act, where it had observed that, there are certain ingredients given under this Section, which has to be satisfied to make relevancy of statement by deceased person before his/her death. The ingredients pointed by this Court includes that a person who is conscious and believes or apprehends that the death is imminent makes such statement, and it must pertain to what the person believes as to cause or circumstances of death. Also the recordings must the statement given by such person and must bear confidence, truthfulness also. The Court further, concluded that, so far as applicability of Section 304-B of IPC is concerned, it is essentially noted that to attract this section, the married women should have died by burn injuries or bodily injuries or even if should would have died under uncommon circumstances i.e. other than normal one, then only such section is attracted. However, in this case, the Court had already decided that the death is not caused due to burn injuries and was caused due to septicemia on account of improper management of wounds. Similarly, it was also pointed from the medical evidences that, the injuries were front side of the body of deceased and even deceased’s long hair was not burnt as such the burns are not consequent upon pouring kerosene on her person and setting her on fire. Hence, it was found that the Trial Court property approached in this regard. And the High Court was seemed unjustified in convicting these Appellants/accused persons under Section 304-B of IPC on only possibility of different view. Similarly, as to conviction of Appellants/accused under Section 498-A of IPC, the Court found that it was cleared from the judgment of Trial Court that the said conviction was imposed on account of incident on 1st January, 1997 which was compromised among the parties. But, the Trial Court mentioned that there was sufficient evidence available on record as to Harassment of deceased by the Appellants/Accused nos. 1 to 3 and 5 and since the Accused no. 4 was studying in the school at that time there was no evidence as to harassment. As such, the Court had acquitted the Accused no. 4 and maintained the conviction of Appellants/Accused no. 1 to 3 and 5 under Section 498-A of IPC. So far as sentencing is concerned, it was found by this Court that, the Appellants/accused no. 1 and 5 since expired during pendency of this Appeal, the conviction against them was abated. And sentencing regarding Appellant/accused no. 4, as aforesaid was set aside under both sections. Also sentences of Appellants/accused no. 2 and 3 under section 304-B of IPC were set aside and as they had already served imprisonment for around two years, though there conviction is maintained under Section 498-A of IPC, their sentence was limited to the period already undergone. However, the Court awarded compensation in respect of expenses incurred to the parents of deceased, to be paid by Accused no. 2 and 3 which was of Rupees one Lakh within prescribed period. Thus, the appeal was allowed in aforesaid terms.
After viewing the facts and circumstances of the above case the conclusion drawn by Hon’ble Supreme Court is absolutely correct. The Court dealt with the facts and evidences to prove the dying declaration and based on this the conviction of accused persons thereof was rightly dealt with by this Court. The dying declaration is considered very important and highly relevant document so far as it contained the version of person who is about to die, and there is principle to the effect that, no person at the point of his death can lie as everyone is normally afraid of meeting his maker with a lie on his mouth at the time of his death (Nemo Moriturus Praesumiture Mentire). Similarly, the law governing provisions as to dying declaration is very clear. The Court has rightly considered the applicability of this principle and also applicability of Section 32(1) of the Evidence Act, in respect of the above case and decided the controversies. Moreover, the Court’s opinion as to grant of compensation in such case is also appreciable with the view to provide relief to the victims under such cases.
by Faim Khalilkhan Pathan.
See Original Judgement-Banarsi Dass & Ors. Vs State Of Haryana