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SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, S. ABDUL NAZEER, JJ.
POONAM BAI – APPELLANT
VERSUS
THE STATE OF CHHATTISGARH – RESPONDENT
CRIMINAL APPEAL NO. 903 of 2018
Decided on : 30-04-2019
(B) Indian Penal Code, 1860 – Section 302 – Indian Evidence Act, 1872 – Section 32(1) – Murder – Dying declaration – Reversal of acquittal by High Court – Dying declaration is only circumstance relied upon by prosecution – Dying declaration as produced before Trial Court is only a photocopy which is not admissible in evidence – Original copy of dying declaration has not been produced before Trial Court – Photocopy of dying declaration does not contain signature of any witness – No verification or certification of doctor regarding fitness of victim to make a statement can be found on dying declaration either – In addition, absolutely no reasons are forthcoming either from Investigating Officer or from Naib Tehsildar-cum-Executive Magistrate as to why original dying declaration was not produced before Trial Court – Evidence on record is very shaky, apart from fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself – Since evidence relating to dying declarations has not been proved beyond reasonable doubt by prosecution, High Court was not justified in convicting appellant, inasmuch as there is no other material against appellant to implicate her – Motive for offence, as alleged by prosecution, has also not been proved – Judgment of High Court set aside and that of trial court restored – Appellant acquitted. (Paras 10 to 16)
Facts of Case:
Murder case. trial court, on evaluation of material on record, acquitted appellant of charges levelled against her. Feeling dissatisfied with order of trial court, State preferred an appeal before High Court, which vide impugned judgment, convicted appellant under Section 302 of IPC.
Findings of Court:
Trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that so-called dying declaration is unbelievable and not trustworthy. Valid reasons have also been assigned by trial court for coming to such a conclusion. Per contra, High Court while setting aside the said finding has not adverted to any of reasons assigned by trial court relating to the authenticity or reliability of dying declaration.
Result : Appeal allowed.
Key Points: - Dying declaration can be the sole basis for conviction if it is trustworthy, voluntary, blemishless, and reliable, inspiring full confidence of the court (!) [1000634370009]. - Photocopy of dying declaration is not admissible in evidence; original must be produced (!) [1000634370010]. - Certification by a doctor for the declarant's fitness is a rule of prudence, not mandatory if the recorder is satisfied and no suspicious circumstances exist (!) [1000634370009]. - Trial court acquitted appellant due to unreliable dying declaration; High Court reversed without addressing trial court's reasons on authenticity (!) [1000634370012]. - Oral dying declaration evidence was shaky and an afterthought, not mentioned in Section 161 statements (!) [1000634370013]. - No other material or proved motive against appellant; prosecution failed to prove case beyond reasonable doubt (!) [1000634370014]. - Supreme Court set aside High Court conviction, restored trial court acquittal, and directed appellant's release (!) [1000634370015][1000634370016]. - Naib Tehsildar did not verify victim's fitness; no doctor certification; Investigating Officer contradicted timeline and presence (!) (!) [1000634370011].
JUDGMENT
Mohan M. Shantanagoudar, J.
This appeal calls into question the judgment dated 06.04.2018 passed by the High Court of Chhattisgarh at Bilaspur in ACQA No. 205 of 2010, by which the judgment of the trial court was set aside and the appellant was convicted under Section 302 of the Indian Penal Code (in short, "the IPC") for committing the murder of the deceased Vimla Bai and sentenced to undergo rigorous imprisonment for life and to a fine of Rs. 500/-.
2. The case of the prosecution in brief is as follows:
The deceased Vimla Bai was the wife of Pilaram Sahu (P.W. 3). The appellant Poonam Bai is the daughter of Balaram, P.W. 3's brother, and thus the niece of the deceased. On the date of the incident, i.e. 01.11.2001, around noon, the appellant Poonam Bai came to the house of the deceased when she was alone, quarreled with her, poured kerosene on her body and lit a fire with a match-stick. Vimla Bai sustained burn injuries and succumbed thereto in the hospital. The matter was reported to Police Station Gurur on the same day by Lalita Sahu (P.W. 2, the daughter of the deceased) at about 12.05 p.m.
3. The trial court, on evaluation of the material on record, acquitted the appellant of the charges levelled against her. Feeling dissatisfied with the order of the trial court, the State preferred an appeal before the High Court, which vide the impugned judgment, as mentioned above, convicted the appellant under Section 302 of the IPC.
4. Mr. Siddhartha Dave, learned senior counsel appearing on behalf of the appellant, has taken us through the entire material on record. He submitted that the prosecution has not proved its case beyond reasonable doubt, there are no eyewitnesses to the incident in question and the case of the prosecution mainly rests on two dying declarations. According to the learned senior counsel, the motive for the offence has not been proved, and the High Court was not justified in reversing the judgment of acquittal passed by the trial court, particularly when the judgment of the trial court cannot be said to be perverse. According to him, the trial court was fully justified in acquitting the accused since the sole circumstance of the dying declarations relied upon by the prosecution has not been proved.
5. Per contra, Mr. Sumeer Sodhi, learned counsel for the respondent-State vehemently argued in support of the judgment of the High Court.
6. We have heard the rival submissions of the learned counsel for the parties and carefully perused the record.
7. The prosecution mainly relies upon the dying declaration (Exhibit P-2), which is stated to have been recorded by the Naib Tehsildar-cum-Executive Magistrate (P.W.1) in the hospital. The oral dying declaration made by the deceased before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W. 3) and Parvati Bai (P.W. 4) has also been relied on.
8. Undisputedly, and as is clear from the evidence of Dr. J.S. Khalsa (P.W. 11), who conducted the post-mortem examination, the deceased had sustained 100% burn injuries all over the body. He also deposed that due to her severe burn injuries, the deceased was in a state of shock.
9. As mentioned supra, as compared to the oral dying declaration, more emphasis was laid on the dying declaration (Exh.P-2) stated to have been recorded by the Naib Tehsildar-cum-Executive Magistrate in the hospital and the panchnama (Ex.P-1) prepared by him regarding the recording of this dying declaration. As a matter of fact, the case of the prosecution mainly depends on the same.
10. There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence
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