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
(2nd 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.
Initially
the petitioner was not arraigned as accused in the crime. When the police proceeded
against him, and submitted a report in court arraigning him as 13th accused
in the crime, he filed Annexure III petition for a direction handing over
investigation in the said crime to an officer of high repute and integrity, not
below the rank of Superintendent of Police, to ensure fair and proper investigation,
which petition is still pending before the learned Judicial First Class Magistrate
III, Neyyattinkara. 
