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PETITIONER: RAM BIHARI YADAV

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       21/04/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T QUADRI, J.      On October 8, 1987, the learned VII Additional Sessions Judge, Dhanbad  Convicted the  appellant, in  S.C. No. 80 of 1986, for  an offence  punishable under Section 302, IPC for committing the  murder of  his wife, Smt. Shivratri Devi, by causing burn  injuries and sentenced him to imprisonment for life after  trying him  for offences  under Section 377 IPC, for committing  sodomy with PW-2, and under Section 302, IPC for intentionally  causing death of his wife on November 13, 1985. The  conviction of  the appellant  was upheld  by  the Division bench  of Patna  High Court  in Criminal Appeal No. 207 of  1987 (R) on August 5, 1988. Against that judgment of the High Court, he filed this appeal by special leave.      The appellant  was working  as  the  officer-in-charge, Tisra P.S.  in November,  1985 but  was  residing  with  his family in  the quarters  allotted to him at his former place of posting  within the  compound of  Jharia, P.S.  He had  a servant, Narsingh  Kumar (PW-2),  aged about  16 years, with whom he  was indulging  in carnal  intercourse which  led to strained relations  between him  and his wife. At about 8.00 A.M., on  November 13,  1985, after throwing kerosene oil on her person,  he  set  fire  to  her  and  thus  caused  burn injuries. Thereafter,  he went  to the  house of  Dr.  Mohan Kanaujiya (PW-8) who was residing behind the Jharia P.S. and informed him  that his  wife had suffered burn injuries. Dr. Kanaujiya proceeded  to his  house. Hearing  about this, the neighbors, Tribhuban  Jha (PW-3)  and Anirudh  Prasad  Singh (PW-4) also  came to the quarters of the appellant. PW-3 and PW-4, found  among  other  things,  the  main  gate  of  the quarters locked  and when  PW-6 could  not get the keys from the appellant,  the door  of the  house was  broken and they entered the  house. After  securing the car of S.I. Kanhaiya Updhyay  (PW-6),  they  sent  her  for  treatment  to  Sadar Hospital, Dhanbad,  where she was admitted as an in-patient. On 16.11.1985, the Inspector P.N. Ram (PW-11) could find PW- 2 to  record his statement and F.I.R. was got lodged through him.  On   the  same  day,  PW-11  requested  Sub-Divisional Judicial magistrate,  Dhanbad, to  record the  statement  of Smt. Shivratri  Devi. At about 1.00 P.M. , on that day, Shri

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L.K. Sharma  , II  class Judicial  Magistrate (PW-7) went to the  Sadar  hospital  and  recorded  her  dying  declaration (Exh.2) wherein  she stated  that her husband had burnt her. On the  following day she succumbed to the injuries. Dr. Roy Sudhir Prasad  (PW-5) assisted  by Dr.  D.K.  Dhiraj  (PW-9) conducted postmortem  examination on her dead body. PW-5 has stated that  the scalp  hair of  the deceased was burnt upto the roots  in both  parietal areas in 6" * 3- 1/2" and faint smell of  kerosene oil  was present  on the scalp. He opined that the  burn injuries  were of first degree and were cause of her  death and  that the  death  was  homicidal  but  not accidental. He issued postmortem report (Exh. 1). PWs. 2 and 6, however, turned hostile at the trial of the appellant.      His defence was on of denial; however, he took the plea that when  Shivratri Devi went for igniting the oven insides the kitchen, she caught fire accidentally. He examined three witnesses,  DWs.1   to  3.  Paridhan  Yadav  (DW-1)  is  the appellant’s  father-in-law   and  Rajnath  Yadav  (DW-2)  is appellant’s brother-in-law  . DW-1  spoke that  the relation between the  deceased and  the appellant  were cordial. DW-2 also said  about their  cordial relations  and added that he and the  appellant poured  water on the body of the deceased when she caught fire.      Shri D.D.  Thakur, the  learned senior counsel and Shri Kalra, appearing  for the  appellant,  have  contended  that there are  no eye-witnesses  to the  occurrence and that the conviction was  based solely on the dying declaration of the deceased (Exh.  2) by  both the courts and when the deceased had given  two dying  declarations the  first being Exh.5/4, recorded by  Shri R.B.  Singh, A.S.I.  and the  second being Exh.2, recorded by the learned II Class Judicial Magistrate, Dhanbad (PW-7)- which are inconsistent Exh.2 should not have been relied  upon; further Exh.2 should not have been relied upon; further  Exh.2 is not in the fore of question- answers and that  it has  not been certified by the doctor as to the mental capacity  of the  victim to give the declaration; the trainee nurse  who attested was not examined; and that it is not corroborated by any independent evidence.      On the  above  contentions,  the  short  question  that arises for  consideration is  whether the  courts below  are justified in convicting the appellant on the basis of Exh.2, the dying declaration of the deceased.      The law  relating to dying declaration - the relevancy, admissibility and  its probative  value- is  fairly settled. More often the expressions ’relevancy and admissibility’ are used as  synonyms but  their legal implications are distinct and different  for more  often  than  not  facts  which  are relevant  are  not  admissible;  so  also  facts  which  are admissible may  not  be  relevant,  for  example,  questions permitted  to  be  put  in  cross-examination  to  test  the veracity or  impeach the  credit of  witnesses,  though  not relevant are admissible. The probative value of the evidence is the  weight to  be given  to it  which has  to be  judged having regard  to the  facts and circumstances of each case. in this  case, the  thrust of  the submission relates not to relevancy or  admissibility but  to the value to be given to Exh.2. A  dying declaration  made by a person who is dead 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 cause  of his  death comes  in question,  is  relevant under Section  32 of the Evidence Act and is also admissible in evidence.  Though dying  declaration is indirect evidence being a  specie of  hearsay, yet  it is  an exception to the rule against  admissibility of  hearsay evidence. Indeed, it is substantive  evidence  and  like  any  other  substantive

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evidence requires  no corroboration  for  forming  basis  of conviction of  an accused.  But then  the question as to how much weight  can be  attached to  a dying  declaration is  a question of  fact and  has to  be determined on the facts of each case.      Mr. Kalra  strenuously contended that the deceased made two dying  declarations, Exh.2  should not  have been  taken into consideration.  According to  the learned  counsel  the first dying  declaration is  Exh. 5/4.  The original of Exh. 5/4 is  not to  be found  on record. Shri R.B. Singh, A.S.I. who is  said to  have recorded  the original of Exh. 5/4 has not to  be found  on record.  Shri R.B. Singh, A.S.I. who is said to  have recorded the original of Exh. 5/4 has not been examined. Assertions in documents produced in Court, when no witness is  testifying are  inadmissible as evidence of that which is  asserted. As  such Exh.  5/4 is  not admissible in evidence. It is, however, suggested that on the basis of the original of Exh. 5/4 entry in the case diary, GD 517 is made so it  could be  treated as  the original.  We are afraid we cannot accept this contention as well. 3D entry only keeps a copy of the dying declaration. The Station House Officer who made that  entry has  not come  into the witness box. PW 11, investigating officer, who is said to have signed that entry did not prove the same. It follows that neither Exh. 5/4 nor GD 517  can be  taken as  the evidence  of the  first  dying declaration of Smt. Shivrati Devi. Thus, Exh. 2, is the only dying declaration  which remains  and was  rightly relied up for convicting the appellant.      The learned  counsel next relied up the observations of the Court  in Khushal Rao vs. The state of Bombay (1958) SCR 552 and  State (Delhi Administration vs. Laxman Kumar & Ors. (1985) 4  SCC 476,  and argued  the Exh. 2, not being in the form of question answer and not having been certified by the doctor should  not have been accepted by the courts below to convicts the appellant. In Kushal Rao’s case, this Court has laid down,  inter alia,  that a  dying declaration which was recorded by  a competent  magistrate in  the proper  manner, that is to say, in the form of questions and answers, and as far as  practicable, in  the  words  of  the  maker  of  the declaration stands  on a  much higher  footing than  a dying declaration which  depends upon  oral  testimony  which  may suffer from  all the  infirmities of  human memory and human character. In  that  case,  three  dying  declarations  were recorded within  two and a half hours of the occurrence; the first by  the doctor  attending on the victim; the second by the police  officer and the third by the learned Magistrate. The High Court took the view that corroboration of the dying declaration, was  necessary and  on the question whether the conduct of  the accused  in absconding and being arrested in suspicious circumstances, would be enough to corroborate the dying declarations, certificate under Article 134(1) (c) was granted by  the Bombay  High Court. This court held that the said  circumstances   could  not   afford  corroboration  if corroboration was  necessary and  that there was no absolute rule of law, not even rule of prudence that had ripened into a rule  of law  that a  dying declaration  in order  that it might sustain an order of conviction must be corroborated by other independent evidence.      In Laxman  Kumar’s case  (supra),  then  housewife  was admitted to  the hospital  with  burn  injuries.  Her  dying declaration was  recorded by  the police  officer but if was not in  question-answer form and it was not certified by the doctor to the effect that she was in a fit condition to give the statement  though it  was not certified by the doctor to the effect  that she  was in  a fit  condition to  give  the

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statement though it was merely attested by him. It contained partial impression  of finger tip of the deceased. The Trial Court  pointed   out  various  suspicious  factors  for  not accepting  the  dying  declaration  for  resting  conviction thereon. The  High Court,  however, relied  upon  the  dying declaration and convicted the accused. On appeal, this Court endorsed the suspicious circumstances indicated by the Trial Court,  which   included  that   under  the  relevant  Rules applicable to  the accused, the investing officer was not to scribe the  dying declaration;  that it was not in question- answer form and that there was no positive evidence that the palms or  left hand  thumb of  the victim  had been so badly affected that she was not in a position  to use thumb or any of the  fingers and concluded that the dying declaration was not acceptable.  This Court  did not lay down, in any of the aforementioned cases  that unless  the dying  declaration is in question-answer  form it  could not  be accepted.  Having regard to the sanctity attached to a dying declaration as it comes from  the mouth  of a  dying person though, unlike the principle of English law he needn’t be under apprehension of death, it  should be in the actual words of the maker of the declaration. Generally,  the dying  declaration ought  to be recorded in  the form  of questions-answers  but if  a dying declaration is  not elaborate  but consists  of only  a  few sentences and  is in  the actual words of the maker the mere fact that  it is  not in  questions-answer form  cannot be a ground against  its acceptability or reliability. The mental condition of  the maker  of the  declaration,  alertness  of mind, memory  and understanding  of what  he is  saying, are matters which  can be  observed by  any person.  But to lend assurance to  those factors  having regard to the importance of the  dying declaration,  the certificate  or a  medically trained  person   is  insisted   upon.  in  the  absence  of availability of  a doctor  to certify  the  above  mentioned factors, if  there  is  other  evidence  to  show  that  the recorder of the statement has satisfied, himself about those requirements before recording the dying declaration there is no reason  as to  why the  dying declaration  should not  be accepted. However, it is pointed out by Shri Kalra that in a recent case  in State  of Orissa vs. Parsuram Naik (1997) 11 SCC 15,  this court  has declined  to rely  upon  the  dying declaration as  it was  not certified by the doctor that the maker of  the declaration  was full senses and was medically fit to  make a statement. There the accused was charged with committing the  murder of  his wife  by burning  her at  her parental house.  The dying  declaration was  recorded by the doctor who,  however, did  not certify  that she was in full senses and  was medically fit to make a statement. The maker of the  declaration  died  within  fifteen  minutes  of  the recording of  the statement.  On the facts of that case, the High Court  did not  consider it safe to rely upon the dying declaration and  acquitted the  accused. This  Court, in the appeal against  acquittal having regard to the fact that she had  sustained  extensive  burn  injuries  and  died  within fifteen minutes  of the recording of the statement, took the view that  she might not be in a proper and fit condition to make a  statement as  regards her  cause of death and agreed with the  High Court  that exclusive  reliance could  not be placed on  such a  dying declaration  to  hold  the  husband guilty or committing her murder.      In the light of the above discussion we shall read here Exh. 2 which reads thus;      " Mujhe mere pati ne jala diya.      Mujhe pata nahin kyon jalaya.      Main Jyada nahin kah sakti hoon

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    Kyon ke bahut pyass lagi hai." The learned II Class Judicial Magistrate (PW -7) stated that pursuant to the order of Sub-Divisional Judicial Magistrate, on November  16, 1985  he recorded  the dying declaration of Smt. Shivratri  Devi in  Sadar Hospital and signed the same; as both  the hands  of Smt. Shivratri Devi in Sadar Hospital and signed  the same;  as both  the hands  of smt. Shivratri Devi were badly burnt, he took impression of her left toe on the declaration and certified accordingly. He further stated that he  put certain questions to Smt. Shivratri Devi with a view to  test her  memory but he did not record this fact in the statement  and that  she was  conscious while giving her statement; he  added, he  got the  doctor  searched  but  no doctor was  available at  1.00 P.M.  when the  statement was recorded by him; trainee nurse was attending upon her and he got her  signature on the statement. He also stated that the ASI who  was with  him identified  the lady and after making enquiries from  the lady,  he satisfied  himself  about  her identity.      From a plain reading of Exh.2  as well as the statement of PW  7, it  is  clear  that  the  learned  magistrate  has satisfied himself about the identity of Smt. Shivratri Devi; he put  questions to  her and  satisfied himself  about  her condition that she was fit enough to make the statement. The statement itself  consists of two sentence. Having regard to all the  facts and  circumstances both the courts below have relied upon  the dying  declaration and  we find  no  cogent reason to  take a different view of the matter. Having found that the  dying declaration  is true and acceptable there is no  escape  from  the  conclusion  that  the  appellant  was responsible for  intentionally causing  burn injuries to his wife Smt. Shivratri Devi, which resulted in her death.      Though, no  corroboration of  dying declaration as such is necessary  to convict  the accused  a principle which has been laid  down in  Khushal rao’s  case (supra), however, in this  case,   there   is   circumstantial   evidence   which corroborates the  dying declaration, viz., the statements of PWs 3 and 4 that they found the victim in her room where the smell of  kerosene was  present, the  statement of PW-5, the doctor who  conducted the  postmortem examination after four days of  the accident  noticed smell  of kerosene  from  the scale of  the deceased, statements of PWs 4 and 6 who rushed to the  house of  the appellant immediately after hearing of the incident and found that the house was locked from inside and the  appellant was  delaying in  opening the lock on one pretext or  the other;  the plea  of the  appellant that she died of  accident while  igniting  the  oven  and  that  the appellant and  DW-2 put  water on  her was  belied from  the evidence on  record as  no sign  of water  was found  in the kitchen and  that the  ash in  the oven  was found  in tact. These facts  corroborate and  lend assurance to the truth of the declaration  of the  deceased "mere  pati ne  mujhe jala diya hai"  .      Before  parting   with  this   case  we   consider   it appropriate to  observe that  though the  prosecution has to prove the  case against  the accused in the manner stated by it and  that  any  act  or  omission  on  the  part  of  the prosecution giving  rise to any reasonable doubt would go in favour of  the accused,  yet in  a case like the present one where the record shows that investigating officers created a mess by  bringing on  record Exh.  5/4 and  GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought  to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of  justice demands  that such acts or omissions of

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the officers  of the  prosecution should  not  be  taken  in favour of  the accused,  for that  would  amount  to  giving premium  for   the  wrongs  of  the  prosecution  designedly committed to  favour the appellant. In such cases, the story of the  prosecution will  have to  be examined  de hors such omissions  and   contaminated  conduct   of  the   officials otherwise the  mischief which was deliberately done would be perpetuated and  justice would  be denied to the complainant party and  this would  obviously shake the confidence of the people not  merely in  the law  enforcing agency but also in the administration of justice.      For the  above reasons,  we are  of the  view that  the Trial Court  as well as the High Court has rightly based the conviction on  Exh. 2,  the dying  declaration. We  find  no merit in  the appeal  ad accordingly  dismiss the  same. The appellant, who  is on  bail, will  now surrender to his bail bonds to serve out the sentence imposed upon him.