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SUPREME COURT OF INDIA
NAVIN SINHA, KRISHNA MURARI, JJ.
NARESH KUMAR – APPELLANTS
VERSUS
KALAWATI AND OTHERS – APPELLANTS
CRIMINAL APPEAL NO.35 OF 2013
DECIDED ON : 25-03-2021
(A) Constitution of India – Article 136 – Appeal against acquittal – Though discretionary jurisdiction of this Court under Article 136 of Constitution is very wide, it has been a rule of practice and prudence not to interfere with concurrent finding of facts arrived at by two courts, by a reappreciation of evidence, to arrive at its own conclusion, unless there has been complete misappreciation of evidence, or there is gross perversity in arriving at findings, causing serious miscarriage of justice – If view taken by two courts is a reasonably possible view, this Court would be reluctant to interfere with a concurrent order of acquittal. (Para 6)
(B) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – A dying declaration is admissible in evidence under Section 32 of Indian Evidence Act, 1872 – It alone can also form basis for conviction if it has been made voluntarily and inspires confidence – If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if dying declaration is suspect, or accused is able to create a doubt not only with regard to dying declaration but also with regard to the nature and manner of death, benefit of doubt shall have to be given to accused – Much shall depend on facts of a case – There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration. (Para 9)
(C) Indian Penal Code, 1860 – Sections 498A and 302/34 – Cruelty and murder – Common intention – Appeal against acquittal – Respondents were acquitted as dying declaration was held not to have been proved in accordance with law and it did not inspire confidence – It vacillated between blaming husband and sister-in-law, coupled with absence of any certificate by Doctor that deceased was in a fit state of mind when she made dying declaration – Deceased was married to respondent no. 2 about 1½ years ago – She suspected a promiscuous relationship between respondents – Deceased even after 1½ of marriage was unable to conceive – A probable defence has been taken that she committed suicide out of frustration – Deceased had suffered 95% burn injuries at home while making tea – Assistant Sub-Inspector who recorded dying declaration does not state that deceased was in a fit state of mind to make statement – He states that Doctor had certified fitness of mind of deceased, when dying declaration itself contains no such statement – In cross-examination he acknowledges that fitness of deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on dying declaration – It would not be safe to simply reject probable defence of suicide, to reverse acquittal and convict respondents – Appeal dismissed. (Paras 3, 7, 8, 11, 13 and 17)
Facts of the case:
Appellant, brother of the deceased, is in appeal challenging the acquittal of respondents nos. 1 and 2, the sister-in-law and husband of the deceased, of the charge under Sections 498A and 302/34 I.P.C., affirmed by the High Court. deceased suffered 95% burn injuries on 17.09.1991 at about 4:30 pm and succumbed in the hospital the next day. There is no eyewitness account. Case of the prosecution is based on circumstantial evidence consisting of the dying declaration of the deceased.
Findings of Court:
In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.
Result : Appeal dismissed.
JUDGMENT :
NAVIN SINHA, J.
The appellant, brother of the deceased, is in appeal challenging the acquittal of respondents nos. 1 and 2, the sister-in-law and husband of the deceased, of the charge under Sections 498A and 302/34 I.P.C., affirmed by the High Court.
2. The deceased suffered 95% burn injuries on 17.09.1991 at about 4:30 pm and succumbed in the hospital the next day. There is no eyewitness account. The case of the prosecution is based on circumstantial evidence consisting of the dying declaration of the deceased.
3. The respondents were acquitted as the dying declaration was held not to have been proved in accordance with law and it did not inspire confidence. It vacillated between blaming the husband and the sister-in-law, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration.
4. Shri Rajendra Singhvi, learned counsel for the appellant, submitted that the deceased suffered a homicidal death by burns in the matrimonial home within seventeen months of her marriage.
P.W. 13, the Sub-Inspector in the police control room had deposed that P.W. 20, the constable posted in the hospital had informed that the deceased had stated that she had been put on fire by her husband, respondent no.2. The M.L.C. of the deceased recorded at 6:00 pm by Dr. Anant Sinha contained an endorsement that she was conscious. The deceased had stated to the Doctor that she was set ablaze by the wife of his elder brother by pouring kerosene oil upon her while she was making tea. Soon thereafter she made another statement to P.W. 25, the Assistant Sub-Inspector, in presence of the said Dr. Anant Sinha, and who also signed the statement, that her elder sister-in-law, had poured kerosene over her and set her on fire. The deceased was therefore not only fully conscious, but also in a fit state of mind. Her right toe impression was taken on her statement as her fingers had suffered burn injuries. The mere absence of any endorsement in the dying declaration by the Doctor with regard to fitness of the deceased to make the statement cannot vitiate its evidentiary value. The fitness to make the statement was certified by the Junior Resident Doctor. None of the relatives of the deceased were present at that time. The mere failure of the prosecution to examine Dr. Anant Sinha cannot be fatal to disbelieve the dying declaration and acquit the respondents. The signature of Dr. Anant Sinha has been proved by P.W. 19, the record clerk of the hospital. The appellant had made all efforts to have the Doctor summoned. P.Ws. Nos. 3, 4 and 5, the mother, the sister and the appellant, have also stated that the deceased had told them in the hospital that she was set on fire by her sister-in-law. Respondent Nos. 1 and 2 were having an illicit affair and they considered the deceased as an obstruction because she was objecting to the same. The respondents have wrongly been given the benefit of doubt that the deceased had committed suicide. The respondents have also wrongly been acquitted of the charge under Section 498A. Reliance was placed upon State of Rajasthan vs. Parthu (2007) 12 SCC 754, Sukanti Moharana vs. State of Orissa (2009) 9 SCC 163 and Heeralal vs. State of Madhya Pradesh (2009) 12 SCC 671 in support of the dying declaration.
5. Shri Ramesh Gupta, learned Senior Counsel appearing for respondent nos.1 and 2 submitted that according to the M.L.C., the deceased was only stated to be conscious. There is no evidence that she was fully oriented with a fit state of mind to make a dying declaration. There is no endorsement by the said Dr. Anant Sinha that the deceased was in a fit state of mind to make the declaration and that he was present during recording of the same. The deceased initially named her husband alone as the person who set her on fire. There was no reference to the sister-in-law or any demand for dowry. Subsequently she stated that she had been brought to the hospital by her
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