Evidence; Banarsi Dass Vs. State of Haryana [Supreme Court of India, 18-12-2014]

Penal Code, 1860 – Section 498A r/w. 304B r/w. 34 – Evidence Act, 1872 – Section 32(1) – Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant – when it relates to cause of death – death of the married woman.

AIR 2015 SC 405 : 2014 (15) SCC 485 : 2014 (14) Scale 338 : 2015 AIR SCW 462 : 2015 (2) Supreme 230 : 2015 (146) AIC 112 : 2015 CrLR 65 : 2015 (2) AllCriLR 115 : 2015 (1) RCR(Cri) 363 : 2015 (2) Crimes 11 : 2015 (1) EastCrC 420 : 2015 (88) ACrC 594 : 2015 (1) RecApexJ 75 : 2015 (3) PLJR 148 : 2015 (2) JLJR 217 : 2014 (5) LawHerald 4320 : 2015 (2) AllLJ 65 : 2015 (1) MLJ(Cri) 339 : 2015 (2) ALT(Cri) 197 : 2015 RajCriC 11 : 2015 (1) CalLJ 89 : 2015 AllSCR 308 : 2015 (1) JBCJ 269 : 2015 (1) HinduLR 586 : 2015 (1) DMC 1 : 2015 (1) CCR 104 : 2015 (Supp) CutLT(Cri) 181 : 2015 (1) GauLT 245 : 2016 (1) GauLD 103 : 2014 JX 776

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

(KURIAN JOSEPH) AND (ABHAY MANOHAR SAPRE) JJ.

December 18, 2014

CRIMINAL APPEAL NO(S). 534-535 OF 2012

Banarsi Dass and others … Appellant (s)

Versus

State of Haryana … Respondent (s)

J U D G M E N T

KURIAN, J.

1. The appellants faced trial under

Section 498A read with Section 304B read with Section 34 of the Indian Penal Code (45 of 1860)

(hereinafter referred to as ‘IPC’). The trial court acquitted them under Section 304B of IPC but convicted them under Section 498A of IPC. The State took up the matter in appeal before the High Court against the non-conviction under Section 304B of IPC. The High Court allowed the appeal and convicted them under Section 304B of IPC also. During the pendency of the appeal, appellant no.1-father-in-law of the deceased and appellant no.2-mother-in-law of the deceased expired. Therefore, the appeals survive only in respect of appellant no. 2-husband of the deceased, appellant no.3-elder brother of the deceased and appellant no.4-younger brother of the deceased.

2. The deceased Chander Kalan was the sister of PW-12- Mahabir and PW-13-Satpal and the wife of accused-Ramesh Kumar. The marriage was on 14.04.1995. The allegation is that on account of non-payment of the dowry as demanded by the husband and in-laws, she was being ill-treated. One such incident was on 01.01.1997 and she lost a couple of teeth. There was a Panchayat and the matter was compromised and therefore, the case then registered under Section 498A read with Section 323 of IPC was not pursued. It is alleged that even thereafter the attitude of the in-laws did not change. On 18.06.1998, it is alleged that she was beaten and pushed out of the house and at around 02.00 p.m., the accused sprinkled kerosene on her and set her on fire. She was admitted in the hospital by 05.00 p.m. and examined by PW-1-Dr. S.D. Goyal, who found that Chander Kalan suffered burn injuries which were approximately 45%. On his request, PW-16-ASI Jagdeep Singh recorded Exhibit-PM-dying declaration. Thereafter, she was admitted in the hospital of PW-9-Dr. Soni on 19.06.1998 and, on 17.07.1998, she was further shifted to the hospital of PW-5-Dr.SubhashVerma, where she died on 04.08.1998. PW-2-Dr. V.K. Kawatra conducted the postmortem along with Dr. Arun Gupta.

3. The trial court chose not to believe Exhibit-PM-dying declaration, but relied on the evidence of PW-5-Dr. Subhash Verma and PW-6-Lalman, Tehsildar and ruled out the possibility of burning by the accused. However, having found that there is evidence to establish cruelty, all the accused were convicted under Section 498A of IPC. The High Court, in the appeal by the State, entered the following conclusion at paragraphs-8 to 10:

“8. Ex.PM the dying declaration of Chander Kalan recorded by PW16 ASI Jagdeep Singh and PW6 Lalman Tehsildar is found to be an important document which ultimately determines the crime committed by the accused. PW1 Dr. S.D. Goyal who examined Chander Kalan on 18.6.1998 at about 5.00 pm has deposed that Chander Kalan was in a fit state of mind. PW6 Lalman Tehsildar and PW16 ASI Jagdeep Singh also would depose that the dying declaration of Chander Kalan was recorded by PW16 ASI Jagdeep Singh only after the opinion was expressed by the doctor that Chander Kalan was in a fit state of mind. It is relevant to note at this state that the occurrence took place as early as on 18.6.1998 at about 2:00 pm. Unfortunately Chander Kalan passed away only on 4.8.1998 in the hospital of Dr. Subhash Verma who was examined as PW5. Chander Kalan had survived for about one and a half month with 40 to 45% burn injuries on her person. The above materials would go to establish that Chander Kalan was infact in a fit state of mind to give declaration as to the cause of her death.

9. PW16 ASI Jagdeep Singh should have in all fairness approached the Judicial Magistrate for recording the dying declaration. Anyway the position of the law is very clear that the dying declaration may not be inwriting. The dying declaration of a dying person can be given to any person for that matter, as otherwise the person who is in the death bed would pass away before the respectable person comes to the hospital for recording the dying declaration. In this case the deceased survived for about one and a half month. She sustained only 40 to 45% burn injuries. She was also in a fit state of mind at the time when PW16 inquired about her health from the doctor who gave treatment to her. As already pointed out by me PW16 had associated PW6 Lalman Tehsildar for recording the dying declaration of Chander Kalan. Just because PW16 failed to associate the learned Judicial Magistrate, the Court cannot throw away the dying declaration given by Chander Kalan, if the dying declaration is found to be truthful and is found to have been given without any influence from outside.

10. Of course, PW6 Lalman Tehsildar would depose that PW13 Satpal was very much present and he was found chatting with Chander Kalan at the time when they descended on the ward to record the dying declaration of Chander Kalan. The relatives of the injured person fighting for life would naturally inquire about the health of the injured person. The relatives cannot be kept away from their natural inquiry about the health of the injured just because dying declaration was to be recorded from the dying person. PW13 Satpal was very much present when the dying declaration was recorded. In fact PW13 Satpal had subscribed his signature to dying declaration Ex.PM as a witness to the same document. The presence of the relative does not ipso facto cast a doubt on the veracity of the dying declaration.”

4. On the basis of the above discussion, the High Court entered the following finding at paragraph-12, which reads as follows:

“12. I find that the dying declaration given by Chander Kalan to PW16 ASI Jagdeep Singh in the presence of PW6 Lalman Tehsildar is found to be truthful and the same has been given without any external influence.The dying declaration gave a graphic account of the earlier occurrence wherein she received an attack from these accused and the persistent demand of dowry made by the accused which culminated in the present occurrence wherein she was put to death by sprinkling kerosene upon her and setting fire by the accused. I do not entertain any doubt as to the veracity of the dying declaration given by Chander Kalan. The trial court has rejected the dying declaration not only on the flimsy ground but also on pure surmise.”

5. Heard learned Counsel appearing for both the parties.

6. According to learned Counsel appearing for the appellants, there is absolutely no justification in convicting the appellants under Section 304B of IPC and Section 498A of IPC. However, learned counsel appearing for the respondent-State contends that in view of the overwhelming evidence which has been minutely discussed by the High Court, the conviction under both Section 304B of IPC and Section 498A of IPC are to be sustained.

7. In the nature of the view we propose to take in this case, particularly since the conviction by the High Court is only on the basis of Exhibit-PM-dying declaration, we do not think it necessary to go elaborately into the evidence. It will be sufficient to refer to the evidence of PW-16-ASI Jagdeep Singh, who recorded the dying declaration and the medical evidence. It is seen that the request for recording the statement was first made before the First Divisional Magistrate, Hisar, who in turn directed the Executive Magistrate, Hisar to record the same. TheExecutive Magistrate, viz., Tehsildar, Hisar took along with him PW-16-ASI Jagdeep Singh. PW-16 states thus in his evidence:

“…

On reaching the ward Chander Kalan made statement to Tehsildar in my presence and on the asking of Tehsildar I recorded that statement on the dictation of Tehsildar. The statement made by Chander Kalan to the Tehsildar in my presence and dictated to me by Tehsildar Sh. Lal man is Ex.PM. 

Chander Bhan and Satpal brother of Chander Kalan were standing inside the gate of the ward. They were called and in their presence the statement was read over by me to Chander Kalan and after admitting her statement as correct Chander Kalan thumb marked the statement Ex.PM. Chander Bhan and Satpal also put their signatures under the statement which was attested by the Tehsildar. This statement was forwarded by me to the police station with my endst. Ex.PM/1 got registration of case.”

(Emphasis supplied)

8. PW-1 is Dr. S.D. Goyal who examined the deceased when she was first brought to the Community Health Centre, Uklana Mandi. He stated as follows:

“The entire face was having burns. The skin had collected at the edges. The front and back of neck was burnt. The entire front of chest was having burns. Both sides of chest extending a bit to back burnt. Front of abdomen and sides were having burns above umbilicus. 

There was a small burn patch in lower part of back. Both the arms were having burns in front and back except some part of right fore-arm on back. The hands in front and back were having burns. B.P. was 110/70, pulse 90 per minute, patient was conscious. The duration of injury being within 6 hours.

The percentage of burns was 45% approximately.” 

(Emphasis supplied)

9. In cross-examination, it is stated by him that she was brought to the clinic by her husband-Ramesh Kumar along with 3/4 more persons whom the doctor could not identify. It has also clearly come out in the evidence that “except burn injuries, no other injury caused by any other weapon blunt or incised was found on the person of Chander Kalan”. And still further, it was noted that there was no sign of any burn mark below umbilicus and on the back of the deceased except one small patch on lower part of the back. The long hair was not affected at all which indicates that the fire was extinguished soon after it caught the clothes of Chander Kalan. According to him, a patient with 45% burns can survive if good and proper medical aid is given to him or her.

10. On the request of PW-1, the patient was shifted to the General Hospital at Hisar for further treatment. PW-9 is Dr. S.K. Soni of Soni Nursing Home, Hisar where the deceased was treated from 19.06.1998 to 17.07.1998. Being a very crucial piece of evidence, we shall extract the same as such:

“When Chander Kalan was discharged from my hospital she was not having any symptom of septicemia due to infection of burn. 

Slight infection was there in the burn injuries. This infection could have been cured by skin grafting but the relation of the patient were not prepared for skin grafting operation and for keeping the patient in my hospital. If kerosene had fallen of any part of the body are on the cloth that part of the body andeven it surrounding and the cloth if set ablaze shall catch fire immediately. The burns on the body of Chander Kalan were in the front portion of the body from face to umbilicus. I had advised Chander Kalan and her attendant that Chander Kalan should remain admitted in my clinic for some more days for her complete cure but her relation did not agree and she was discharged.

There was no bed sore on the body of Chander Kalan till she remained admitted in my clinic. 

There were chances of survival of the patient where the burns were 40% if continuous medical care has been given to the patient.”

(Emphasis supplied)

11. PW-2 is Dr. V.K.Kawatra, Medical Officer, General Hospital, Hisar, who conducted postmortem. The descriptions of the burns, as noted by him, reads as follows:

“There was a dressed wound on the anterior surface of the both upper limbs, anterior surface of the chest and part of the abdomen above the umbilicus, the anterior surface of the neck and lower part of the face, both shoulders and a little part on the posterior surface of the chest and neck. The dressing was opened. The granulation tissue was present on the front of the chest, arms and neck. There was pus-discharge seen at various places. There were bed sores on the back and at the sacral region. Pus was also seen it. The approximate percentage of burn was 45%.”

12. According to Dr. V.K. Kawatra, “the cause of death in the instant case was septicemia due to infected burns”. The burns were ante-mortem in nature and sufficient to cause death in the ordinary course of nature.

13. In cross-examination, PW-1-Dr. V.K. Kawatra has deposed as follows:-

“It is correct to suggest that if proper care should have been taken then the bedsore should not have occurred. There was a great possibility that infection of burn causing septicemia could have been avoided if proper care and treatment had been given to Chander Kalan. I agree in good institution, if there is a proper treatment 45% burns on the parts of the body as found in this case could not have been fatal.” 

(Emphasis supplied)

14. From the evidence which we have extensively extracted above, the emerging factual position is that the dying declaration does not come under