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2012 Supreme(MP) 412
2012(3) JLJ 72
(SUPREME COURT)
Swatanter Kumar and Fakkir Mohammed Ibrahim Kalifulla, JJ.
Shudhakar v. State of M.P.
Criminal Appeal No.2472 of 2009; Decided on 24.7.2012.
Headnote:(1) Penal Code, 1860 -- S.302 -- Evidence Act, 1872 -- S.32 -- offence of murder -- kerosene oil poured by accused on his wife and fired by match stick -- death caused by burn injuries -- three dying declarations -- first not voluntary and made by free will -- second and third authentic and voluntary -- corroborated by prosecution witnesses and medical evidence -- such dying declarations can be made basis for conviction -- appeal dismissed.
Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the Courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the Courts to doubt the truthfulness of such dying declaration.
Where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent, the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters.
Examining the evidence in the present case in light of the above-stated principles, we have no hesitation in holding that the first dying declaration was not voluntary and made by free will of the deceased.
Thus, in our considered view, the second and third dying declarations are authentic, voluntary and duly corroborated by other prosecution witnesses including the medical evidence. These dying declarations, read in conjunction with the statement of the prosecution witnesses, can safely be made the basis for conviction of the accused. 2011(1) JLJ 207 (SC) referred to. 2012(2) JLJ 410 (SC), (2011)10 SCC 173, (2010)14 SCC 444, (2002)6 SCC 710, (2012)4 SCC 722, (2004)10 SCC 769 and (2008)4 SCC 265 discussed.
(2) Evidence Act, 1872 -- S.114 -- presumption under -- when not arises -- document of dying declaration produced -- critically examined by Courts -- presumption of adverse inference against prosecution does not arise.
This document has not only been produced but has even been critically examined by the trial Court as well as the High Court. It is a settled principle of law of evidence that the question of presumption in terms of section 114 of the Evidence Act only arises when an evidence is withheld from the Court and is not produced by any of the parties to the lis. (2005)9 SCC 113 referred to.
¼1½ naM lafgrk] 1860 && /kkjk 302 && lk{; vf/kfu;e] 1872 && /kkjk 32 && gR;k dk vijk/k && vfHk;qDr }kjk viuh iRuh ij feV~Vh dk rsy Mkydj fn;k lykbZ ls vfXu yxkbZ && tyus dh {kfr;ksa ls e`R;q gqbZ && rhu e`R;qdkfyd dFku && izFke LoSfPNd rFkk Lora= bPNk ls ugha && f}rh; rFkk r`rh; izkekf.kd rFkk LoSfPNd && vfHk;kstu lkf{k;ksa rFkk fpfdRlh; lk{; }kjk lefFkZr && ,sls e`R;qdkfyd dFku nks"kflf) ds vk/kkj cuk, tk ldrs gSa && vihy [kkfjt dh xbZA
tc dHkh ,slk LoSfPNd dFku fd;k x;k gks] ;g fo‘oluh; gS rFkk e`rd }kjk lPpkbZ dks <¡duk vFkok O;fDr dks >waB&ewaB Q¡lkus dk iz;kl ugha gS] rc U;k;ky; ,sls e`R;qdkfyd dFku ij fuf‘pr :i ls fo‘okl dj ldrk gS rFkk bls nks"kflf) dk vk/kkj cuk ldrk gSA fo‘ks"kr%] tgk¡ e`rd }kjk e`R;qdkfyd dFku ds :i esa fn;k x;k c;ku vfHk;kstu dh vU; lk{; ls iqf"Vd`r rFkk lefFkZr gS] U;k;ky; ,sls e`R;qdkfyd dFku dh lPpkbZ ij lansg djus ds fy, dksbZ dkj.k ugha gSA
tgk¡ e`rd }kjk fd, x, vusd e`R;qdkfyd dFku c`gr lhek rd ;k rks fojks/kkHkklh ;k ,d&nwljs ls erHksn gSA lkekU; foosd dh dlkSVh ls izFke ;g ijh{k.k djuk gksxk fd dkSu&lk e`R;qdkfyd dFku vU; vfHk;kstu lk{; }kjk lefFkZr gSA vkxs] fo|eku ifjfLFkfr;k¡] lqlaxr le; ij e`rd dh fLFkfr] fpfdRlh; lk{;] e`rd }kjk fd, x, dFkuksa dh LoSfPNdrk rFkk ;FkkFkZrk] e`rd dh ‘kkjhfjd rFkk ekufld {kerk rFkk e`rd dks fl[kykus dh laHkkO;rk dqN ,sls ?kVd gSa tks ,sls ekeyksa esa U;k;ky; dks U;kf;d foosd dk iz;ksx djus esa ekxZn‘kZu nsaxsA
bl izdj.k esa lk{; dk ijh{k.k djus ij mi;qZDr dfFkr fl)karksa ds izdk‘k esa] gedks ;g Bgjkus esa fgpfdpkgV ugha gS fd izFke e`R;qdkfyd dFku LoSfPNd rFkk e`rd dh Lora= bPNk ls fd;k x;k ugha FkkA
bl izdkj] gekjh lqfuf‘pr jk; esa] f}rh; rFkk r`rh; e`R;qdkfyd dFku izkekf.kd] LoSfPNd rFkk vfHk;kstu dh vU; lk{; fpfdRlh; lk{; dks lfEefyr dj lE;d~ :i ls lefFkZr gSaA ;s e`R;qdkfyd dFku] vfHk;kstu lkf{k;ksa ds dFkuksa ds la;kstu esa i<+us ij] fuf‘pr :i ls vfHk;qDr dh nks"kflf) dk vk/kkj cuk;k tk ldrk gSA 2011¼1½ ts ,y ts 207 ¼mPpre U;k-½ fufnZ"VA 2012¼2½ ts ,y ts 410 ¼mPpre U;k-½] ¼2011½10 ,l lh lh 173] ¼2010½14 ,l lh lh 444] ¼2002½6 ,l lh lh 710] ¼2012½4 ,l lh lh 722] ¼2004½10 ,l lh lh 769 rFkk ¼2008½4 ,l lh lh 265 foosfprA
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 114 && mica/k ds v/khu mi/kkj.kk && dc mRiUu ugha gksrh && e`R;qdkfyd dFku dk nLrkost izLrqr fd;k x;k && U;k;ky;ksa }kjk foospukRed :i ls ijh{k.k fd;k x;k && vfHk;kstu ds fo:) izfrdwy fu"d"kZ dh mi/kkj.kk mRiUu ugha gksrhA
;g nLrkost u dsoy izLrqr fd;k x;k gS cfyd fopkj.k U;k;ky; lkFk&lkFk mPp U;k;ky; }kjk foospukRed :i ls ijh{k.k fd;k x;k gSA lk{; dk ;g lqfuf‘pr fl)kar gS fd lk{; vf/kfu;e dh /kkjk 114 ‘‘kCnkoyh esa mi/kkj.kk dk iz‘u dsoy rc mRiUu gksrk gS tc fookn ds fdlh i{kdkj }kjk U;k;ky; ls lk{; jksd j[kh gS rFkk izLrqr ugha dh gSA ¼2005½9 ,l lh lh 113 fufnZ"VA
¼iSjk 25
Swatanter Kumar, J. -- 1. An important question of criminal jurisprudence as to in a case of multiple variable dying declarations, which of the dying declaration would be taken into consideration by the Court, what principles shall guide the judicial discretion of the Court or whether such contradictory dying declarations would unexceptionally result in prejudice to the case of the prosecution, arises in the present case.
2. The facts as brought out in the case of the prosecution are that the accused Shudhakar was married to the deceased Ratanmala and they used to live at Ganesh Chowk, Seoni, Tahsil and District Seoni, Madhya Pradesh. They were living in the house of one Krishna Devi Tiwari. The accused was suspicious about the character of his wife Ratanmala. On the date of occurrence, i.e., 25th July, 1995, there was argument between the husband and the wife in consequence to which the accused assaulted Ratanmala. Thereafter, he poured kerosene oil on her and put her ablaze by lighting a match stick due to which there was smoke in the house. The people living nearby gathered around the house upon seeing the smoke and finding Ratanmala in burning condition, took her to the hospital wherein she was admitted byPW8, Dr. M.N. Tiwari and was occupying bed No.10 of the surgical ward of the district hospital. Except the upper portion, her entire body had been burnt. Her body was smelling of kerosene. The injuries were fresh. According to the medical evidence, they were caused within five hours and the burn injuries were fatal for life. As per the statement of PW4, Dr. H.V. Jain, one Dr. Smt. A. Verma, lady doctor, gynaecologist had accompanied him for the post-mortem of the dead body of the deceased which was brought by Constable Bhoje Lal from Seoni. Statement of PW4 clearly shows that upon post-mortem examination, Rigor Mortis was found on the entire dead body. Both the eyes were closed, superficial burns were present on the entire body. The skin had separated at a number of places. The body was burnt between 97 per cent to 100 per cent. There were burn injuries on the skull and occipital region. The cause of death was shock and hipobolamar which was caused due to severe burn injuries and due to fluid loss.
3. It is the case of the prosecution that Ratanmala had told the people gathered there that the accused had burnt her by pouring kerosene oil on her. When she reached the hospital, the doctor had informed the police. The doctors also informed the Naib Tehsildar, DW1, who came to the hospital and recorded the first dying declaration (Ex.D-2) of the deceased Ratanmala at 4:35 p.m. on 25th July, 1995. In her first dying declaration, she did not implicate her husband and stated that she received the burn injuries from a stove while cooking food. Before her death, two more dying declarations were recorded in the hospital. One (the second) declaration (Ex.P-12) was recorded by Rajiv Srivastava, Tehsildar (PW9) at 6:30 p.m. on the same date. In relation thereto, Dr. Jain had endorsed the certificate of fitness of the deceased to make the statement. The third dying declaration (Ex.P-6) was recorded by Sub-Inspector D.C. Doheria, (PW7) in presence of two independent witnesses, Bharat Kumar and Abdul Rehman. In these two subsequent dying declarations recorded by PW9 and PW7, respectively, the deceased had specifically implicated the accused by clearly stating that he had put kerosene oil on her and set her on fire.The reason for not implicating her husband in her first dying declaration was that there was every likelihood that his husband would lose the job.
4. Unfortunately, she succumbed to the burn injuries and died in the hospital itself. Inquest proceedings were carried out. The Investigating Officer prepared the site plan and the body of the deceased was subject to post-mortem which was performed by PW4, Dr. H.V. Jain. The Investigating Officer recovered matches as well as burnt match, broken mangalsutra and burnt saree from t
