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SUPREME COURT OF INDIA
S. MOHAN AND G.N. RAY, JJ.
Smt. Paniben, Appellant
Versus
State of Gujarat, Respondent
Criminal Appeal No. 487 of 1980, D/-13-3-1992.
Held: Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire ful1 confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (Para 17)
(ii) Evidence Act, 1872 - Section 32 - Many dying declarations - One first in point of time is to be preferred. (Para 18)
(iii) Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872 - Section 32 - Dowry death Sessions Judge holding it to be a suicide - High Court hold in it to be a murder by mother-in-law - Appeal against to Supreme Court - Conviction based on three dying declarations First to Head Constable - Second by Taluqua Magistrate and Third to father of deceased No possibility of Tutoring - fit mental condition - Mother-in-law alleged to have burnt her when she was sleeping alone. Whether dying declarations are rightly relied on for conviction ? (Yes).
Held: We are clearly of the opinion the High Court was fully justified in accepting the dying declaration because they answer every test which is required to be applied for such acceptance. (Para 24)
Further held: We concur with the High Court in reversing the findings of the Learned Sessions Judge as to why the deceased could not try to run and catch the miscreant and allow her cloth to burn. Equally, we agree with the High Court with regard to the other infirmities including not informing the husband. The theory of suicide has been rightly rejected by the High Court. As was pointed out a tender lass after only five years of married life with an affectionate husband and a young daughter to foster could not have resorted to that rash act, merely because there were quarrels between her and her mother-in-law. In every house it is provercial that such quarrels do take place. It is impossible to content that the deceased was so much frustrated in life so as to commit suicide.
In the result, we have no hesitation in upholding the conviction. (Para 25)
(iv) I.P.C. 1860 - Section 302 – Dowry death - Conviction and sentenced to life imprisonment – Appeal against. Prayer for reduction in sentence - Whether be entertained? (No).
Held: Undue sympathy would be harmful to the cause of justice. It may even undermine the confidence in the efficacy of law.
Merely because the accused has spent more than a decade in jail, we see no justification to show any leniency. Of course, we are aware the High Court itself had recommended for remission under Sec. 432 of the Code of Criminal Procedure, in view of the accused being 58 years of age at that time. Neither of the counsel in favor or opposition have informed us as to what had happened whether remission was granted or not. However, we leave it at that. (Paras 26,27)
JUDGMENT
MOHAN, J.:- Every time a case relating to dowry death comes up, it causes ripples in the pool of the conscience of this Court. Nothing could be more barbarous, nothing could be more heinous than this sort of crime. The root cause for killing young bride or daughter-in-law is avarice and greed. All tender feelings which alone make the humanity noble disappear from the heart. Kindness which is the hallmark of human culture is buried. Sympathy to the fairer sex, the minimum sympathy is not even shown. The seedling which is uprooted from its original soil and is to be planted in another soil to grow and bear fruits is crushed. With this prefatory note, we pass on to the matrix of facts.
2. The criminal appeal is directed against the conviction of the appellant under S. 302 of Indian Penal Code and sentencing her to life imprisonment reversing the acquittal by the trial Court. The case of the prosecution shortly is as under:
Bai Kanta was married to Valji Savji sometime in the year 1972. Accused is the mother-in-law of Bai Kanta. There were frequent quarrels between the mother-in-law and the daughter-in-law. Once Bai Kanta on account of quarrel went away to her parents house. Accused went to the house of Bai Kanta to bring her back. The father-in-law of Bai Kanta gave an assurance that nothing would go wrong. On this assurance, Bai Kanta was sent to the house of accused. The accused, Bai Kanta and her husband were all living in the same house. Even after the return, there used to be quarrels between the accused and Bai Kanta. The accused developed profound dislike for Bai Kanta. On the night of 7th May, 1977 at about 12 mid-night, Bai Kanta was sleeping all alone in the osri of the house. The accused went there, poured kerosene on her person. Bai Kanta got up as she felt the kerosene was being poured and meanwhile the accused lit fire and left the osri. Bai Kanta shouted for help. Hearing the shouts, the husband and others collected there and the fire was extinguished. She was removed to the hospital in the cart. In the cart, she had told witnesses Ratnabhai, Savji Dahya, Shantaben, Valji Ben and others that her mother-in-law had burnt her. Up to the Gadhka village, she was taken in the cart. Later on, she was brought to Rajkot Government hospital in a taxi in burnt condition. The police constable on duty at the hospital informed Taluka police station about Bai Kanta having been brought to the hospital in burnt condition. So, Head Constable Kanji Ukabhai who was in charge of the police station made an entry in the police station diary. He directed Head Constable Abhal Mamaiya to go to the hospital and enquire into this matter. Accordingly, Head Constable Abhal Mamaiya went to the hospital and recorded the statement of Bai Kanta in the early hours. It was stated by her that the mother-in-law burnt her. Abhal Mamaiya wrote a yadi for dying declaration to the Executive Magistrate which was received by him at 6 a.m. Abhal Mamaiya, thereafter filed a complaint on the strength of the statement of the deceased and the investigation started. The Executive Magistrate reached the hospital at about 7. 10 a.m. on 18-5-1977. He recorded the dying declaration Ex. 29. In that declaration also, Bai Kanta stated she was burnt by the accused. Police Sub-Inspector Tavde of Rajkot Taluka police station took up the investigation; went to the scene of occurrence; made the panchnama of the scene of occurrence; recorded the statement of witnesses. He arrested the accused in the evening. He also recorded the statement of Bai Kanta on 19-5-1977. In that also, Bai Kanta stated, she was burnt by her mother-in-law, the accused. The Sub-Inspector Tavde arrested the accused at about 6.45 p.m. on 18-5-1977. Bai Kanta succumbed to the injuries on 20-5-1977 at 0045 hours. Thereafter, post-mortem was carried out.
3. On completing the necessary investigation, the accused was charge-sheeted and after committal, she was tried by the learned Sessions Judge of Rajko
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