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2007(8) Supreme 155
Supreme Court of india
(From Punjab & Haryana High Court)
Arijit Pasayat & P.P. Naolekar, JJ.
Shakuntala — Appellant
versus
State of Haryana — Respondent
Criminal Appeal No. 376 of 2002
Decided on : 27-07-2007
(JT 1992 (2) SC 417),(IT 1993 (5) SC 87), (IT 1994 (3) SC 232),(IT 1996 (2) SC 595) Relied upon.
Indian Penal Code, 1860 - Section 302 - Applicability of - Background in which appellant put deceased on fire clearly indicated what was her intention as she fully knew that deceased would be burnt to death — Deceased sprinkled kerosene all over body of appellant to scare her but appellant on contrary took match stick and put same on body of deceased - It being crystal clear that murder was intentionally committed. trial Court and High Court rightly held that S.302 was applicable -Plea of Non applicability of S.302 IPC held without substance - Appeal having no merit dismissed. (Para 13, 14)
Facts of the case :
Accused appellant mother in law was prosecuted in the instant case for causing death of her daughter in law by setting her on fire. Appellant was convicted on pasis of dying declaration. High Court on appeal affirmed judgment of Trial Court.
Present Appeal has been filed against said order of High Court.
Findings of the Conrt :
The Court held that Dying declaration is only a piece of untested evidence and must like any other evidence, satisfy Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny Court is satisfied that dying declaration is true and free from any effort to induce deceased to make a false statement and if it is coherent and consistent, there is no legal impediment to make it basis of conviction, even if there is no corroboration. There was no material to show that dying declaration was result of product of imagination, tutoring or prompting. On contrary, same appeared to have been made by deceased voluntarily. Categorical statement of PW5 doctor that deceased was in a fit condition to give statement. Even pw6 judicial Magistrate stated that deceased was in a fit condition to give statement and was able to understand what was being asked and she answered specifically. Evidence of PWs 5 & 6 clearly established that Dying Deceleration was made when deceased was in a fit condition to give declaration. Hence held that there was no reason to hold that Dying Declaration was not believable. Dying Declaration being trustworthy held to have credibility.
Result : Appeal dismissed.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court upholding the conviction of the appellant for an offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentence of imprisonment for life as awarded by the learned Sessions Judge, Rohtak in Sessions Case No.31 of 1997.
2.The appellant was charged for offences punishable under Sections 498-A, 304-B and 302 IPC. The trial Court found the accused guilty of offence punishable under Section 302 IPC while acquitting her from the other charges.
3.Background facts in a nutshell are as follows:
“Suman (hereinafter referred to as the ‘deceased’) daughter of Balbir Singh had been married with one Bikram Singh son of accused-appellant, resident of village Kabulpur about two years prior to the incident. At about 9.00 A.M. on 6th April, 1997, the deceased and the accused had a quarrel over the inadequate dowry brought at the time of the marriage. As the deceased was fed up with the daily squabbles, she picked up a can of Kerosene oil to scare her mother-in-law-the appellant with an intention to keep her quiet, but the appellant on the contrary, took out a match box and set the deceased on fire and having done so ran out of the room calling out that deceased had set herself on fire. The villagers, who had collected there on hearing the noise, rushed her to the P.G.I.M.S., Rohtak, A ruqa sent to the police post, brought ASI Om Parkash (PW-7) and after collecting the medico-legal report from the hospital, he moved an application before Dr. Ranbir Singh (PW -5) who certified her to be fit to make a statement. Shri A.K. Singhal, JMIC, Rohtak (PW-6) was brought to the hospital, who recorded her statement and on its basis, the formal F.I.R. was registered at 4.45 P.M. on 6th April, 1997 initially for offences punishable under Section 307 IPC but on Suman’s death on 11th April, 1997, the offence was converted to one under Section 302 IPC. On completion of the investigation, the accused was charged for offences punishable under Sections 498-A and 304-B IPC and in the alten1ative for an offence punishable under Section 302 IPC’ and as she pleaded not guilty, was brought to trial.
4.The prosecution version was centered primarily around the dying declaration which was recorded by the learned First Class Judicial Magistrate (PW-6). Dr. Ranbir Singh (PW-5) had declared the deceased in a fit condition to make the dying declaration. The trial Court found the dying declaration to be acceptable and relying on the evidence of PW s 5 and 6, conviction of the appellant as noted above was recorded. The appellant’s stand, that the dying declaration was not believable, was not accepted. As noted above, appeal before High Court was dismissed.
5.In support of the appeal, learned counsel for the appellant submitted that the evidence of PWs 5 and 6 so far as the dying declaration is concerned cannot be accepted. The deceased suffered from 1000/0 burns and therefore the statement of PWs 5 and 6 that the deceased was in a fit condition is not acceptable. He also submitted that there was another dying declaration which was recorded by’ PW-4. Unfortunately, the same was discarded without any basis. Alternatively it was submitted that case under Section 302 IPC is not maintainable.
6.Learned counsel for the State on the other hand supported the judgment of the trial Court.
7.At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’) which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which cou
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