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CASE NO.: Appeal (crl.) 749  of  2000

PETITIONER: UKA RAM

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       10/04/2001

BENCH: K.T. Thomas, R.P. Sethi & S.N. Phukan

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Solely  relying upon the dying declaration of  Parveena, the  deceased, the trial court held the appellant guilty for the  murder of his wife and daughter Kumari Dharmistha  aged 16  months.  Upon conviction for the offences under Sections 302,  326  and 498A of the Indian Penal Code, the  appellant was sentenced to imprisonment for life for the main offence. Appeal  against  the aforesaid conviction and  sentence  was dismissed by the High Court vide judgment impugned herein.

   The  facts of the case are that on the intervening night of 6/7th May, 1994, Nonji (PW1) submitted a complaint before the  incharge  of the police station Bheenmal to the  effect that  when  he  was  at  the  Chakki  of  Tararam  at  about 11.30-12.00 in the midnight he heard voice raising the noise saying  Mare  Mare  from  the side of  the  house  of  the appellant.   On  hearing the noise, the informant  came  out from  the Chakki and saw Smt.Parveena, wife of appellant  in blazes rushing out from her house.  She tore her clothes and was sitting in naked position.  After sometime the appellant also  came  out of his house.  On being asked Parveena  told that the appellant had burnt her by sprinkling kerosene oil. After  registering the case under Sections 324 and 498A IPC, the  police  commenced the investigation.  Parveena who  was admitted  in the hospital died on 8.6.1994 and the  daughter of the appellant died on 2.7.1994 whereafter the offence was changed to Section 302 IPC.

   To prove its case, the prosecution examined 21 witnesses at  the  trial,  most  of whom turned hostile  and  did  not support  the case of the prosecution.  Before her death  the deceased  had made dying declarations Exhibit P-20 which was recorded  by the police at about 3.30 a.m.  and Exhibit P-27 which  was recorded by Judicial Magistrate at 3.55 a.m.   on 7.5.1994.   The  oral dying declarations, allegedly made  by the  deceased, were sought to be proved by the testimony  of PWs 1, 2, 3, 4 and 5.  PWs 1, 2 and 4 have not supported the

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prosecution.

   In  his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant stated that on 6.5.1994 between  11.30  and 12.00 p.m.  he was sleeping outside  his house whereas his wife and daughter were sleeping inside the house.  After hearing weeping of his daughter he went inside the house and saw his daughter in the state of burning along with  his wife.  He made an attempt to save their lives.  He thought  that  his  wife had burnt his  daughter,  hence  he started  abusing her upon which she went outside at Chabutra while  burning.   He  brought  his mother on  the  scene  of occurrence  who  was  living  separately.  He  went  to  the hospital  along  with  the  burnt  wife  and  the  daughter. According to him his wife was insane and he has been getting her treated for insanity.

   From  the record it appears that the FIR was received in the  police  station  on 7.5.1994 at about  1.30  a.m.   The statement  Exhibit P-20, obviously under Section 161 of  the Code  of Criminal Procedure, is stated to have been made  by the  deceased  at  about 3.30 a.m.   and  dying  declaration Exhibit  P-27  was recorded by the Magistrate at about  3.55 a.m.   For convicting and sentencing the appellant, both the trial  as  well  as the High Court have  relied  upon  dying declaration, Exhibit P-27.

   Statements,  written or verbal of relevant facts made by a  person  who  is dead, or who cannot be found or  who  has become  incapable  of giving evidence, or  whose  attendance cannot  be  procured without an amount of delay  or  expense which  under  the circumstances of the case appears  to  the court  unreasonable, are themselves relevant facts under the circumstances  enumerated  under sub-sections (1) to (8)  of Section  32  of  the Act.  When the statement is made  by  a person  as  to  cause  of his death, or as  to  any  of  the circumstances  of  the  transaction which  resulted  in  his death,  in  cases in which the cause of that persons  death comes into question is admissible in evidence being relevant whether  the  person was or was not, at the time  when  they were  made, under expectation of death, and whatever may  be the nature of the proceeding in which the cause of his death comes   into   question.   Such   statements  in   law   are compendiously  called dying declarations.  The admissibility of  the  dying declaration rests upon the principle  that  a sense  of impending death produces in a mans mind the  same feeling  as  that of a conscientious and virtuous man  under oath - Nemo moriturus praesumuntur mentiri.  Such statements are  admitted,  upon consideration that  their  declarations made  in extremity, when the maker is at the point of  death and when every hope of this world is gone, when every motive to  falsehood  is silenced and the mind induced by the  most powerful consideration to speak the truth.  The principle on which  the  dying declarations are admitted in evidence,  is based  upon  the  legal maxim  Nemo  moriturus  praesumitur mentire  i.e., a man will not meet his maker with a lie  in his  mouth.  It has always to be kept in mind that though  a dying  declaration  is entitled to great weight, yet  it  is worthwhile to note that as the maker of the statement is not subjected  to  cross- examination, it is essential  for  the court  to  insist that dying declaration should be  of  such nature  as  to inspire full confidence of the court  in  its correctness.   The  court  is  obliged   to  rule  out   the possibility  of  the  statement being the result  of  either tutoring, prompting or vindictive or product of imagination.

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Before relying upon a dying declaration, the court should be satisfied  that  the deceased was in a fit state of mind  to make  the  statement.  Once the court is satisfied that  the dying  declaration was true, voluntary and not influenced by any  extraneous  consideration, it can base  its  conviction without   any  further  corroboration   as  rule   requiring corroboration  is  not  a  rule of law but only  a  rule  of prudence.

   In Tapinder Singh v.  State of Punjab [1970 (2) SCR 113] this Court held:

   The  dying declaration is a statement by a person as to the  cause of his death or as to any of the circumstances of the  transaction which resulted in his death and it  becomes relevant under Section 32(1) of the Indian Evidence Act in a case  in  which the cause of that persons death comes  into question.   It  is  true that a dying declaration is  not  a deposition  in  court and it is neither made on oath nor  in the  presence of the accused.  It is, therefore, not  tested by  cross-examination on behalf of the accused.  But a dying declaration  is admitted in evidence by way of an  exception to  the  general rule against the admissibility  of  hearsay evidence, on the principle of necessity.  The weak points of a  dying declaration just mentioned merely serve to put  the court  on its guard while testing its reliability,  imposing on  it an obligation to closely scrutinise all the  relevant attendant circumstances.

   This  Court  in  Dandu Lakshmi Reddy v.  State  of  A.P. [1999  (7) scc 69] observed that on the fact-situation of  a case  a  judicial  mind  would tend to  wobble  between  two equally  plausible  hypothesis - was it suicide, or  was  it homicide?   If  the  dying   declaration  projected  by  the prosecution  gets  credence  the alternative  hypothesis  of suicide  can be eliminated justifiably.  For that purpose  a scrutiny   of   the  dying   declaration   with   meticulous circumspection is called for.  It must be sieved through the judicial  cullendar  and if it passes through the gauzes  it can  be  made the basis of a conviction, otherwise not.   It was  further  held  that  in view of  the  impossibility  of conducting  the test on the version in the dying declaration with  the touchstone of cross-examination, the court has  to adopt other tests in order to satisfy its judicial conscious that the dying declaration contained nothing but the truth.

   Ms.Minakshi  Vij  who appeared as amicus curaie in  this case  vehemently argued that the trial court as well as  the High  Court  was  not justified in relying  upon  the  dying declaration  (Exhibit  P-27)  to base  the  conviction,  as, according  to  her, the said declaration was not made  by  a mentally  sound and normal person.  It is submitted that the deceased  was  suffering from a mental illness  which  might have  prompted  her to end her life.  Alternatively,  it  is argued  knowing  that  Parveena was a  mental  patient,  the prosecution  should have taken steps to ascertain that while making  the  statement she was not suffering from  any  such illness.  In rebuttal Sh.Sushil Kumar Jain submitted that as despite  taking such a plea the appellant has not chosen  to lead  any  defence  evidence, the genuineness of  the  dying declaration  cannot  be doubted.  He has  further  submitted that  because before recording the statement (Exh.P-27)  the

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doctor  had  declared  the deceased to be fit  to  make  the statement  vide Exhibit P-26, no doubt can be created  about the  mental faculties of the deceased at the time of  making the statement.

   There  is  no  dispute that the prosecution is  under  a legal  obligation  to prove its case beyond  all  reasonable doubts  and the accused is only to probabilise his  defence. From  the evidence on record we find that the plea regarding the  mental condition and illness of the deceased was not an after-thought  in  the  instant case.  It  is  evident  that during  the  whole trial, the appellant has been  trying  to cross-examine the witnesses to probabilise that the deceased was  suffering  from mental illness which could be a  reason for  her  to commit suicide or alternatively  the  statement Exhibit  P-27  cannot be held to be voluntarily made or  not made  under  any  extraneous influences.  Nonji  (PW1),  the first informant in reply to a court question had stated that Parveena  was  mad  but added that he had  heard  about  her madness.  In cross-examination Lal Singh (PW3) had stated I do  not  know that Parveena was mad or not.  Villagers  were saying  that Uka Ram had brought her for medical treatment. Pabu (PW4) in her cross-examination had stated Parveena was mentally  made  and  my  son had  brought  her  for  medical treatment.   Masra  (PW10), the father of the deceased  was also  cross-examined  on this subject wherein he had  stated that  It is wrong to say that previous son-in-laws of Sathu and Abu Road say that Pravina is insane and it is also wrong that due to above reasons they left Parvina.  I am ill for 5 years.   It is wrong to say that my son Prabhu got treatment of  insanity at Palanpur.  It is wrong to say that treatment of  insanity  of  my  two daughters is  going  on.   Prabhu (PW11),  who is the real brother of the deceased has  stated that  It  is  true that the mental treatment of  my  sister Pravina  was  going  on.   She was  suffering  from  lunatic attack.  On this subject statement of accused under Section 313  has already been noticed.  In her dying declaration the deceased  had  not  referred to any reason  which  allegedly prompted the appellant to commit the crime.

   After  going through the whole of the evidence, perusing the  record  and  hearing  the submissions  of  the  learned counsel  for  the  parties, we are of the opinion  that  the prosecution  had  not proved, beyond doubt, that  the  dying declaration  was  true, voluntary and not influenced by  any extraneous consideration.  Despite knowing the fact that the deceased  was a mental patient, the investigating agency did not  take  any  precaution to ensure that the  incident  was suicidal  or  homicidal.   The probability of  the  deceased committing  suicide  has  not been eliminated.   There  also exist  a doubt about the mental condition of the deceased at the  time  she  made  dying  declaration  (Exhibit  P-  27). Exhibit  P-26,  the medical certificate only states  to  her physical condition to make a statement but does not refer to her  mental condition even at that time.  The trial as  well as  the High Court appear to have ignored this aspect of the matter  while  convicting and sentencing the appellant.   We are  satisfied that it is a fit case in which the  appellant is entitled to the benefit of doubt.

   As  the dying declaration, the sole evidence upon  which the  conviction  is  based,  is   not  reliable  beyond  all reasonable  doubts,  the  conviction  and  sentence  of  the appellant  is  not  justified.  Accordingly, the  appeal  is allowed  by  setting  aside   the  impugned  judgment.   The

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appellant is acquitted of all the charges and is directed to be  set  at liberty forthwith unless required in some  other case.