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1995 Supreme(All) 1192
IN THE HIGH COURT OF ALLAHABAD
DEV KANT TRIVEDI, O. P. PRADHAN
KRISHNA CHANDRA - Appellant
Versus
STATE - Respondents
Criminal Appeal 309 Of 1989
Decided On : 11/29/1995
C.B.PANDEY, G.K.MEHROTRA, H.C.AVASTHI, I.Murtaza, SANDIP MUKHARJI, TEGH BAHADUR SRIVASTAVA
A dying declaration can be admitted as the sole basis for conviction only if it is free from infirmities, made in a fit state of mind, and is truthful and reliable.
Headnote:
CRIMINAL APPEAL - SECTION 302/34, 304-B, 498-A IPC - DYING DECLARATION - FIT MENTAL STATE - BURNS - KEROSENE ODOUR - ACCIDENT OR HOMICIDE - EVIDENCE ANALYSIS - CONVICTION SET ASIDE: 1. Dying declaration is admissible as sole basis of conviction if it is free from infirmities and satisfies various tests (voluntary, reliable and made in fit state of mind). 2. Magistrate must be satisfied that the declarant was making a conscious and voluntary statement with normal understanding. 3. Magistrate must inquire about the mental state of the declarant and record the same. 4. Court must carefully scrutinize the declaration to find out whether it is truthful and reliable. 5. Certificate of doctor regarding the mental state of the declarant is not conclusive. 6. Incoherent and inconsistent statement in the dying declaration may indicate confusion and hallucination. 7. Characteristic odour of kerosene oil and sooty blackening of burnt parts are indicative of kerosene burns. 8. Absence of kerosene odour and sooty blackening soon after the occurrence may suggest accidental death. 9. Immediate conduct of accused in taking the victim to hospital for treatment may indicate innocence. 10. Dying declaration made by a declarant not in a fit mental state cannot be relied upon for conviction.
Fact of the Case:
Indra Kumari, wife of Krishna Chandra, died due to burn injuries. The prosecution alleged that the appellants, Krishna Chandra and his mother Chandra Kala, set her on fire after sprinkling kerosene oil, due to a demand for a motorcycle. The appellants claimed that Indra Kumari accidentally caught fire while easing herself with a Dhebri.
Finding of the Court:
The court found that the dying declaration of Indra Kumari was not reliable and truthful as it was made in a state of confusion and hallucination. The court also noted the absence of characteristic odour of kerosene oil and sooty blackening on the burnt parts, which suggested accidental death. The court further considered the immediate conduct of the appellants in taking Indra Kumari to the hospital for treatment as indicative of their innocence.
Issues: 1. Whether the dying declaration of Indra Kumari was admissible and reliable. 2. Whether the appellants' demand for a motorcycle was the motive for the crime. 3. Whether the death of Indra Kumari was accidental or homicidal.
Ratio Decidendi: 1. The court held that the dying declaration of Indra Kumari was not admissible as a reliable and truthful piece of evidence due to the following reasons: - The declarant was not in a fit mental state to make the declaration. - The declaration was made under a state of confusion and hallucination. - The declaration was incoherent and inconsistent. 2. The court found that the motive for the crime, as alleged by the prosecution, was not established as there was no evidence of any demand for a motorcycle by the appellants. 3. The court concluded that the death of Indra Kumari was accidental, as there was no evidence of kerosene burns and the appellants' immediate conduct in taking her to the hospital suggested their innocence.
Final Decision: The court set aside the conviction and sentence recorded against the appellants, Krishna Chandra and Chandra Kala, and allowed their appeals.
( 1 ) KRISHNA Chandra and his mother, Smt. Chandra Kala, residents of village Bargaon, Police-Station Kotwali Nagar, Gonda were placed on trial before the Special/addl. Sessions Judge, Gonda in connection with charges under Sections 304-B, I. P. C. and 498-A, I. P. C as also under S. 302 read with S. 34 I. P. C. , for the murder of Smt. Indra Kumari in the itervening night of 19/20-7-1987. The learned Addl. Sessions Judge by means of his judgement and order dated 31-3-1989, acquitted both of them on the charge u/s. 304-B, I. P. C. , but convicted them u/s. 498-A, I. P. C. and sentenced each of them to undergo one years R. I. , and pay a fine of Rs. 500. 00 and in default to undergo six months R. I. Both of them were also convicted u/s. 302 read with S. 34, I. P. C. , and sentenced to undergo life imprisonment. However, the sentences were made to run concurrently. Against their conviction and sentence, Krishna Chandra and Smt. Chandra Kala preferred appeals separately. Both these appeals have been heard together and since they arise out of the same judgement and order, they are being disposed of by a common judgement.
( 2 ) BRIEFLY stated, the case for prosecution as unfolded during trial is as follows; Smt. Indra Kumari (deceased) was the daughter of Babu Lal P. W. 2 and she was married to appellant Krishna Chandra in the years 1980. At the time of marriage, appellant Krishna Chandra was studying in High School while he had joined L. L. B. classes near about the incident. In the month of February, 1987 Indra Kumari had visited her parents house and she had told them that the appellants were demanding a motor-cycle and in case it was not delivered, they would leave her. Babu Lal visited the in-laws house of his daughter, Indra Kumari on 16-7-87 and his daughter again told him that appellants were demanding motor-cycle. Babu Lal told the appellants that he was not in a position to provide motor-cycle. In the morning of 20-7-87, Bhagwati and Radhey Shyam went to the house of Babu Lal and told him that his daughter got burnt and admitted in the hospital. Thereupon Babu Lal and his son, Chandrika Prasad went to the hospital and found Indra Kumari severely burnt. On enquiry she told them that the appellants had beaten her and set her on fire after sprinkling kerosene oil, on the score of motor-cycle. She further told them that the Magistrate had recorded her statement. Babu Lal prepared a written report and lodged the same at P. S. Kotwali Nagar, district Gonda at 11. 05 a. m. on the very same day. A case under Sections 498-A and 307, I. P. C. was registered on the basis of the written-report against the appellants and investigation followed. Indra Kumari, however, succumbed to the burn injuries at 3. 30 p. m. on 20-7-1987. The crime was altered to one u/ss. 304-B and 498-A, I. P. C. After completing the investigation, a charge-sheet for prosecution of the appellants under Section 304-B and 498-A, I. P. C. was submitted by the Investigating Officer. The case was committed to the Court of Session by Chief Judicial Magistrate, Gonda on 9-2-1988. Learned Addl. Sessions framed charges against the appellants under Sections 304-B and 498-A, I. P. C. and also framed a charge under Section 302 read with Section 34, I. P. C. , against both of them. The appellants pleaded not guilty to the charges and claimed trial.
( 3 ) IN support of its case, the prosecution in all examined thirteen witnesses. Munna Lal, P. W. 1 is a neighbour of appellant Krishna Chandra. He did not support the prosecution case but he was not declared hostile. Babu Lal P. W. 2 in the complainant of the case and father of deceased Indra Kumari. He supported the prosecution case and proved the written-report Ext. Ka-1. Chandrika Prasad P. W. 3 is the son of the complainant and brother of the deceased. He also supported the prosecution case. Dr. S. N. Leley P. W. 4 examined the deceased at 4. 30 a. m. after she was admitted in the hospital with burn injurie
