Dying declaration: reversal of acquittal “on a mere possibility of another view, if at all possible, on the evidence”, not justified, holds the Apex Court

A Bench of the Apex Court comprising of Kurian Joseph and Abhay Manohar Sapre. JJ. in Banarsi Dass and others Vs. State of Haryana (decided on 18.12.2014), has held that reversal of acquittal “on a mere possibility of another view, if at all possible, on the evidence” is not justified in law. The Court also explained the law relating to dying declaration and set out the ingredients to be satisfied for a dying declaration to become a valid one in law.

The appellants faced trial under Section 498A read with Section 304B read with Section 34 of the Indian Penal Code (45 of 1860). 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. The appeal thus survived 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.

The facts as disclosed from the judgment are as follows: The deceased Chander Kalan was the sister of PW-12- Mahabir and PW-13-Satpal and the wife of accused-Ramesh Kumar (2^nd appellant). The marriage was on 14.04.1995. The allegation was that on account of non-payment of the dowry as demanded by the husband and in-laws, she was 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 was alleged that even thereafter the attitude of the in-laws did not change. On 18.06.1998, it was 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.

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 found that the dying declaration given by Chander Kalan to PW16 ASI Jagdeep Singh in the presence of PW6 Lalman Tehsildar was 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”, so observed the High Court.

Accordingly, the High Court allowed the appeal filed by the State and convicted the accused under Section 304B of IPC also.

The Apex Court found that the dying declaration made by the deceased does not come under Section 32(1) of the Indian Evidence Act, 1872  and, hence, it is not relevant for the following reasons: 

“a. The alleged incident of pouring of kerosene on the deceased was on 18.06.1998 at around 02.00 p.m. and the statement is said to have been recorded on the same day. 

b. PW-16-ASI Jagdeep Singh, who is also the investigating officer, had not recorded the statement given by the deceased. What he recorded was the statement made by the deceased to the Tehsildar and what the Tehsildar dictated to him. It has come in evidence that the Tehsildardid not have any problem or difficulty in recording the statement himself. It is also not a case of any translation. 

c. The statement does not pertain to the cause of death or circumstances of the transaction which resulted in death. The death in this case on 04.08.1998, after seven weeks of the incident, is not caused by the burns but on account of a serious infection, septicemia caused due to improper management of the wounds. 

d. It is to be noted that the patient was initially at the Community Health Centre. Thereafter, she was shifted to General Hospital, from 19.06.1998 to 17.07.1998, she was in Dr. Soni’s Hospital and, thereafter, from 17.07.1998 till her death on 04.08.1998 at the Hospital of Dr. Subhash Verma. The available medical evidence clearly shows that the death is not due to the burns. It is due to septicemia and the infection could have been avoided by proper medical care.”

Referring to Section 32 (1) of the Evidence Act, the Court said that an analysis of the provisions would show that for a statement by a person made before his death to be relevant, the following ingredients are to be satisfied: 

i) The statement is made by a person who is conscious and believes or apprehends that death is imminent. 

ii) The statement must pertain to what the person believes to be the cause or circumstances of death.

iii) What is recorded must be the statement made by the person concerned, since it is an exception to the rule of hearsay evidence. 

iv) The statement must be confidence bearing, truthful and credible as held by this Court in  Laxman v. State of Maharashtra, (2002) 6 SCC 710 and consistently followed including the very recent one in Mallella Shyamsunder v. State of Andhra Pradesh (in Criminal Appeal No. 1381 of 2011 decided on 29.10.2014). 

v) The statement should not be one made on tutoring or prompting. 

vi) The court may also scan the statement too see whether the same is prompted by any motive of vengeance.

Applying the law to the facts of the case, the Apex Court found that “the incident occurred on 18.06.1998 whereas the death is on 04.08.1998. Exhibit-PM-dying declaration was recorded on 18.06.1998 itself. At the time of recording of the statement, the condition of the patient no doubt was very stable and she was in a very good state of mind as recorded by the doctor. The burn injury was only 40-45% of the body and, according to doctor 40-45% burns is not fatal and such a patient can be saved if given proper treatment. It has also come out in evidence that the death is not caused by the burns but because of septicemia, an infection on account of improper management of the wounds. It is fairly clear that the patient on 18.06.1998 was not apprehending death, not merely because she lived for more than seven weeks after the incident but because of the nature of the burn injuries which we have referred to above.” 

“In the facts and circumstances of the present case, Exhibit-PM-declaration does not meet the requirements of a dying declaration under Section 32(1) of the Evidence Act. It has to be noted that the very foundation of the reliability of the dying declaration is the principle of Nemo moriturus praesumitur mentire which literally means that no one at the point of death is presumed to lie since one is normally afraid to meet his maker with a lie on his mouth at the time of death”, the Court held.

On the issue of applicability of Section 304B of IPC to the case, the Court held : “in order to attract Section 304B of IPC, one of the essential ingredients is that death of the married woman should be caused by burns or bodily injury or that she should have died otherwise than under normal circumstances. In the instant case, it has clearly come out in evidence that the death is not caused by the burns: it is caused by septicemia on account of improper management of wounds. The parts of the body affected by the burns would clearly show that the burns are not caused on account of somebody pouring kerosene on her body and setting her on fire. As can be seen from the medical evidence and the postmortem report, the injuries are on front side of the body from face up to the umbilicus. Her long hair was not burnt at all. The approach of the trial court seems to be quite proper and reasonable, and which, in our view, could not have been better explained.”

The Apex Court added: “The High Court even otherwise is not justified in reversing the acquittal under Section 304B of IPC on a mere possibility of another view, if at all possible, on the evidence. Unless the judgment of acquittal is passed on no evidence or is perverse or the view taken by the court is wholly unreasonable or is not a plausible view or there is non-consideration of any evidence or there is a palpable misreading of evidence, the High Court is not justified in interfering with the order of acquittal as held by this Court in Basappa v. State of Karnataka, (2014) 5 SCC 154”

The Court found that there is evidence available regarding harassment of the deceased by the accused/appellant nos. 1, 2, 3, and 5. But in the case of accused/appellant no. 4- Rajesh, who was studying in the school at the relevant time, there is no evidence as to any harassment. Therefore, the Court while maintaining conviction under Section 498A of IPC in respect of appellant nos. 1, 2, 3 and 5, held that appellant no. 4-Rajesh is liable to be acquitted under Section 498A of IPC as well.

On the question of sentence, the Court said : “Since the appellants are acquitted under Section 304B of IPC and the conviction is only under Section 498A of IPC and since accused/appellant nos. 1 and 5 are no more, and having regard to the facts and circumstances of the case, we are of the view that the sentence of accused/appellant nos. 2 and 3 is to be limited to the period already undergone.”

In the result, the conviction under Section 304B of IPC in respect of all the appellants was set aside by the Apex Court. The conviction under Section 498A of IPC in respect of appellant no. 4-Rajesh was also set aside.

“The conviction under Section 498A of IPC is maintained in respect of accused/appellant nos. 1, 2, 3 and 5. Accused/appellant nos. 1 and 5 are no more and the appeal as against them is abated. The sentence of accused/appellant nos. 2 and 3 is limited to the period already undergone.”, so pronounced the Apex Court. 

The Court however directed Accused/appellant nos. 2 and 3 to pay total compensation of Rs.1,00,000/- to the parents of the deceased-Chander Kalan within a month from the date of judgment.

  The appeals were accordingly allowed by the Apex Court.