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PETITIONER: PADMABEN SHAMALBHAI PATEL

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT18/01/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAMASWAMI, V. (J) II FATHIMA BEEVI, M. (J)

CITATION:  1991 SCR  (1)  88        1991 SCC  (1) 744  JT 1991 (1)   205        1991 SCALE  (1)54

ACT:      Indian  Evidence Act, 1872: S.32  -Dying  declarations- Recorded  by  medical-men-Not in  question-and-answer  form- Probative value of-Whether conviction can be based on.      Indian  Penal  Code,  1860:  S.  302-Homicidal   death- Deceased set aflame by pouring kerosene-Suffered 90 burns- Dying  declarations  made to medical -men-Accused  named  as tormentor-Acquittal  by Sessions Court on benefit of  doubt- Appeal  against-Conviction-  Sentence of  life  imprisonment awarded-Validity of.

HEADNOTE:      The wife of appellant’s brother was found aflame in the early  hours of 11.6.1975 in the kitchen of  her  husband’s house.  She was taken to hospital and admitted to Burns-ward where  the doctor in charge (PW 5) examined her  and  while taking her case history enquired of the injured as to  what happened,  to which she replied, "my  nanad  (sister-in-law) burnt me".  She had  suffered 90% of burns.  The nurse  (PW 4)  was instructed to give treatment.  Later another  doctor (PW 2) attended on her.  When he asked her as to how she had received the burns, she told him that her   husband’s sister had burnt her.  In reply to his further query, she named the appellant  as  her  tormentor.   He  made  a  note  of  this information  by  the victim on the police ‘yadi’  which  was sent  to  him  to  ascertain if the  victim  was  in  a  fit condition  to  make a dying declaration.  As  her  condition deteriorated,  the victim was not in a position to make  any statement  to the police.  The investigation  culminated  in the appellant being charged under s. 302, I.P.C. for causing the murder of her brother’s wife by pouring kerosene on  her person and setting her aflame.      On trial, the Sessions Court held that the deceased had not  the  requisite  mental  condition  so  as  to  make  an acceptable dying declaration, and that her husband was  very much  near  the cot, and hence possibility of  tutoring  the deceased  could  not be ruled out.  Giving  the  benefit  of doubt it acquitted the appellant.                                                        89      In  the  State’s appeal against acquittal,  a  Division Bench  of  the  High Court  re-appreciated  the  prosecution

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evidence  and after closely examining the reasons  given  by the  Sessions court, held them thoroughly untenable and  not supported by the evidence on record.  It set aside the order of acquittal, convicted the accused of murder and  sentenced her to imprisonment for life.      The   appellant-accused   appealed   to   this    Court challenging  in  aforesaid conviction and  sentence  on  the ground that the High Court erred in law in holding the  view taken by the trial court as less probable.  It was contended that  the  deceased  having suffered 90% of  burns  and  her general  condition being poor, she was not in a  fit  mental state  to  make  the  dying  declaration;  that  the   dying declarations were not in question-and-answer form; and  that the possibility of tutoring the deceased could not be  ruled out.      Dismissing the appeal, this Court,      HELD: 1.  A dying declaration is admissible in evidence on  the  principle of necessity and can form the  basis  for conviction  if it is found to be reliable.  While it  is  in the  nature of an exception to the general  rule  forbidding hearsay  evidence,  it  is  admitted  on  the  premiss  that ordinarily  a  dying person will not  falsely  implicate  an innocent person in the commission of a serious crime.  It is this  premiss which is considered strong enough to  set  off the need that the maker of the statement should state so  on oath and be cross-examined by the person who is sought to be implicated. [94H; 95A-B]      2.1   Being an independent piece of evidence  like  any other  piece  of evidence-Neither extra  strong  nor  weak-a dying declaration can be acted upon without corroboration if it is found to be otherwise true and reliable, and in  order to  form the sole basis for conviction without the need  for independent  corroboration it must be shown that the  person making  it  had the opportunity of indentifying  the  person implicated   and  is  thoroughly  reliable  and  free   from blemish.[95d; 95B]      2.2 If it is found that the maker of the statement  was in  a  fit  state  of mind and  had  voluntarily  made  the statement  on the basis of personal knowledge without  being influenced by others and the court on strict scrutiny  finds it  to  be  reliable, there is no rule of  law  or  even  of prudence  that such a reliable piece of evidence  cannot  be acted upon unless it is corroborated. [95C]      3.1  In the instant  case, since the incident  occurred in  the early hours of the day, there was possibility  of  a family member being involved; and as the incident took place in  broad  day  light,  there could be  no  doubt  that  the deceased  had  an  opportunity to see  her  tormentor.   The deceased told the doctor (PW 5) that her ‘nanad’ had set her on  fire.   Since the appellant was the only sister  of  her husband,  there remained no doubt about the identity of  the ‘nanad’ (husband’s sister or sister-in-law).  Doubt, if any, was  removed by another doctor’s evidence (PW 2)   to  whom she disclosed the name of the appellant. [95D, 94D, 95F-G]      3.2   The mere fact that the deceased had suffered  90% burns  and her general condition was poor, was no reason  to discard the testimony of both the medical men when they said that she was in a fit state of mind and was able to make the dying  declarations  in  question.  Both  the  doctors  were conscious  of her condition and would not have attached  any importance to her statement if they had any doubt about  her mental  capacity.   Besides  the oral evidence  of  the  two medical  men, there were contemporaneous  documents  showing that  the  deceased made the statements in  question.  [96E; 95G; 94G]

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    Suresh v. State of M.P., [1987] 2 SCC 32, relied on.      3.3  The doctors (PW 2 and PW 5) merely questioned  the victim  for  the  limited  purpose  of  recording  the  case history.   Having  regard to her condition, they  could  not have  questioned her in detail.  In the  circumstances,  the fact of the statements being cryptic was understandable; and the  failure  on  their part to  record  her  statements  in question-and-answer  form  could  in no  manner  affect  the probative  value to be attached to their  evidence.  [97A-B; 96G]      Bankey  lal v. State of U.P., [1971] 3 SCC 184,  relied on and Rabi Chandra Padhan & Ors. v. State of Orissa, [1980] 1 SCC 240, held inapplicable.      4.  Being conscious of the fact that while dealing with an acquittal appeal, the court should give due weight to the views  of the trial court on the question of credibility  of the  prosecution evidence and should not  lightly  interfere with its appreciation, the High Court carefully  scrutinised the  evidence, particularly in regard to the two oral  dying declarations,  and  rightly  concluded  that  there  was  no possibility of tutoring nor was the deceased mentally  unfit to make the said dying declarations. [93C-E]                                                        91      Balak Ram & Anr. v. State of U.P., [1975] 1 SCR 153 and Lallubhai v. State of Gujrat, [1971] 3 SCC 767, referred to.

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION:  Criminal Appeal  No. 326 of 1979.      From  the  Judgement and Order dated  4.5.1979  of  the Gujarat High Court in Criminal Appeal No. 389 of 1976.      T.U. Mehta, P.H. Parekh and Ms. Geetanjali Mathrani for the Appellant.      D.A.   Dave,  Anip  Sachthey  and  B.R.  Jad  for   the Respondent.      The following Order of the Court was delivered.      The appellant was charged under Section 302 I.P.C.  for causing  murder  of Gangaben, her brother’s wife  ,  in  the early  hours of 11th June, 1975 by pouring kerosene  on  her person and setting her aflame.  The marriage had taken place with Jayantilal, the brother of the appellant, hardly  three months before the incident in question.  On the date of  the incident  the  deceased  was in  the  husband’s  house  when the unfortunate incident took place.  On hearing the cries  a neighbor  Prahladbhai went to the house and found that  the deceased was inside the kitchen.  He pushed opened the  door and   saw  the  deceased  aflame.   The  said   Prahladbhai, Bhanubhai, the brother of the appellant, and others took her to  Shardaben  Hospital  for treatment.   They  reached  the casualty  department at about 6.45 a.m. and thereafter  she was admitted to the Burns-Ward as an indoor patient at about 6.50 a.m. Within five minutes thereafter PW 5 Dr. Kritikumar Solanki  examined  her.  While taking  her  case-history  he enquired  of  the  injured as to  what  had  happened.   The injured  replied  "my nanad (sister-in-law) burnt  me".   He prescribed  certain  medicines, noted the  case-history  and thereafter  instructed the nurse.  PW 4 Pankajben,  to  give the  treatment.  Dr. Solanki was incharge of the  Burns-Ward at  the  relevant  time as PW 2.  Dr.  Suresh  Ambvani,  was absent.  Dr. Ambvani arrived at about 8.30 a.m. in the  ward and examined the patient.  After noting  her pulse, etc., he asked her how she had received the burns.  She told him that she had been burnt.  On further questioning she stated  that

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her husband’s sister and burnt her.  Dr. Ambvani   thereupon asked  her  the  name  of her  husband’s  sister  which  she disclosed  as Padma, the appellant before us.   Dr.  Ambvani later  made  a note about the information  divulged  by  the victim on the police ‘yadi’ which was received.                                                        92 at  about 2.45 p.m. to ascertain if the victim was in a  fit condition to make a dying declaration.      After  the  victim  was  brought  to  the  hospital   a telephone message was sent to Madhupura Police Station.  The investigating   officer  in  the  course  of   investigation recorded  the panchnama of the scene of occurrence at  about 10.15  a.m.  The panchnama shows that the residence  of  the victim was on the first floor.  In the outer room pieces  of burnt  clothes and a peeled skin piece were found.   To  the south  thereof  was  the  kitchen  which  was  smelling   of kerosene.   Pieces of burnt clothes were also lying in  that kitchen.  There was a primus with a burner and broken  match box    soiled   with   water   lying    alongside    certain garments,namely,  two blouses, two petti-coats and two  half burnt sarees.  There was water on the floor.      Inspector  Nagori  claims  to  have  interrogated   the accused on the same day but arrested her on the next day  at about 5.00 p.m.  The investigation thereafter proceeded  in usual course and ultimately the appellant came to be charged as stated above.      The  prosecution mainly relies on the evidence  of  the two medical men PW 2 Dr. Ambvani and PW 5 Dr. Solanki.   In addition  thereto reliance is placed on the evidence of  the two  nurses  PW  3 Rukshmaniben and PW  4   Pankajben.   The neighbor  PW 7 Prahladbhai was also examined but  he  turned hostile.   On  an  appreciation of  the  evidence  of  these witnesses the learned City Session Judge, Ahmedabad, came to the  conclusion  that this was a case  of  homicidal  death. That conclusion has been confirmed by the High Court and has not  been contested before us.  With regard to the  evidence of the two medical men the trial judge concluded that  there was  no reason to doubt their testimony  since the same  was corroborated by the contemporaneous entries made by them  in the  case paper and the police ‘yadi’.  Taking note  of  the evidence of PW 1 Dr. Purohit who performed the post-mortem a nd  the  evidence  of  PW 5 Dr.  Solanki,  he  came  to  the conclusion  that  the  victim was in a  position  to  speak. having  regard  to the fact that she had 90% of  burns,  her pulse was 130, respiration was 20 and her general  condition was not good, he concluded, relying on the decisions of this Court in Balak Ram & Anr. v. State of U.P., [1975] 1 SCR 753 (1975  Crl. Appeals Reporter 39) and Lallubhai v.  State  of Gujarat,  [1971] 3 SCC 767 (1972  Crl. L.J.. 628)  that  the deceased  could not be in a fit state of mind when she  made the  dying  declaration.   He thought  it  unsafe  to  place implicit reliance on the said evidence particularly  because it was the appellant’s contention that she was not on good                                                        93 terms  with  her brother i.e. the husband of  the  deceased. The learned trial Judge also thought that the possibility of torturing  could  not be ruled out.  In this view,  that  he took,  he  gave the benefit of doubt to  the  appellant  and acquitted her.      The  State  feeling aggrieved, filed an  appeal,  being Criminal Appeal No. 389 of 1976, which was heard and decided by a Division Bench of the High Court of Gujarat on 4th  may 1979. The High Court on a re-appreciation of the prosecution evidence  concluded  that  the view  taken  by  the  learned Sessions  Judge  was thoroughly untenable.  The  High  Court

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pointed  out  that two main reasons which weighed  with  the learned   Sessions Judge for acquitting the appellant  were- "(1)  that  the  deceased  had  not  the  requisite   mental condition  so as to make acceptable dying  declaration:  and (ii)  that  her husband was very much near the  cot  of  the deceased,  and  hence,  the  possibility  of  tutoring   the deceased  cannot  be  ruled out".  The  High  Court  closely examined  both these reasons and concluded that  they  could not be supported by the evidence on record.  Being conscious of the fact that while dealing with an acquittal appeal, the High Court should give due weight to the views of the  trail court  on  the question of credibility  of  the  prosecution evidence   and  should  not  lightly  interfere   with   its appreciation,   it  carefully  scrutinized   the   evidence, particularly  in regard to the two oral dying  declarations, and concluded that there was no possibility of tutoring  nor was   the  deceased  mentally  unfit  to  make   the   dying declarations.   In that view of the matter it  reversed  the order  of acquittal, convicted the appellant of  murder  and sentenced her to life imprisonment.      Mr.  Mehta, the learned counsel for the appellant,  has taken us through the entire evidence as well the case law on which  the  learned  trial  Judge has  based  his  order  of acquittal.   He  also invited our attention to a  number  of decisions  of this Court in support of his  contention  that the  High Court ought not to have interfered with the  order of  acquittal. According to him the High Court  should  have given  due  regard to the appreciation of  evidence  by  the trial  court and should not have lightly brushed  aside  its conclusion  on  facts.  Counsel submitted that an  order  of acquittal  strengthens  the presumption of  innocence  which should not be dislodged unless the appellate court comes  to the conclusion that the trial court has committed a manifest error of judgement resulting in miscarriage of justice.  His submission was that this Court should approach the  question by  inquiring  if the High Court had adhered  to  the  well- settled  principle  that if two views are possible  and  the trial court accepts one view which the High Court  considers less  probable,  the High Court will not reverse  the  trial court.  Lastly he                                                        94 contented that although a  conviction can be based solely on a   dying  declaration, courts should be slow  to  accept  a dying  declaration  as   true where it is  not  recorded  in question  and answer from and is cryptic in nature,    since it is a  piece of evidence not tested by  cross-examination. The  weight  to  be attached to  a  dying  declaration  must largely  depend  on whether or not the deceased  was  a  fit state of mind to make it and since  in the present case  the trial  court  had ruled against the  prosecution,  the  High Court  was not justified inreversing the trial court,   more so because if was doubtful if she could speak at  all having regard to the  burns on her lips and tongue.  In support  of his  submission he cited a  host of decisions of this  Court but  it  is  unnecessary to refer to them  as  on  principle there can be no dispute with the propositions  of law stated by  the  appellant’s  counsel.  We  have   given  given  our anxious  considerations  to these submissions  but   we  are afraid  we cannot accede to them because in the facts of the present  case  we are satisfied  that the High  Court  would have failed in its duty if it had not  reversed the decision of the trial court.      The  evidence  on record shows that the   marriage  had taken  place hardly three months before the incident.   Even on  the   appellant’s  own showing her  relations  with  the

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deceased  were  not strained.  The appellant  is  the   only sister  of  the husband of the deceased.  The  word  ’nanad’ means  the husband’s sister.  Therefore, when  the  deceased told  PW 5 Dr. Solanki that her ’nanad’ had set her  on  the fire, she meant the appellant and none  else.  The  evidence of  nurse PW 4 Pankajben corroborates the  evidence  of  Dr. Solanki.    Both  these  witness  have   deposed  that   the deceased was in a fit state of mind and was able to   speak, elbeit  with  difficulty.  If  there was any  doubt  on  the question  of  identity it was cleared by PW  2,  Dr.  Suresh Ambvani to whom the deceased gave  the name of her tormentor as  padma.  The  learned  Sessions Judge, also came  to  the conclusion  that  notwithstanding the  extensive  burns  the patient was conscious and was  able to speak at the time she made   the   dying  declarations.    Her   condition    soon deteriorated  and by 2.45 p.m. she was not in a position  to make any statement to the  police as    recorded by PW 2 Dr. Ambvani  on   the police ’yadi’.  Dr.  Ambvani  had,however, recorded what the patient had  told him.  Therefore, besides the   oral   evidence   of   two   medical-men   there   are contemporaneous documents which go to show that the deceased made the  statements in question. Even the learned  Sessions Judge  did not doubt the correctness of truth of  what  both the medical-men deposed but in his view the deceased was not mentally fit when she named the appellant.      It  is  well-settled  by  a  catena  of  cases  that  a dying declaration is                                                   95 admissible in evidence on the principle of necessity and can form  the  basis  for  conviction  if  it  is  found  to  be reliable.   While it is  in the  nature of an  exception  to the  general  rule   forbidding  hearsay  evidence,  it   is admitted  on  the premises  that ordinarily a  dying  person will  not  falsely  implicate an  innocent   person  in  the commission of a serious crime.  It is this premiss which  is considered strong enough to set off the need that the  maker of  the   statement should state so on oath  and  be  cross- examined  by the person who is sought to be implicated.   In order  that a dying declaration may form the sole basis  for conviction without the need for independent corroboration it must be shown that the person making it had the  opportunity of  identifying   the person implicated  and  is  thoroughly reliable  and  free  from blemish.  If, in  the   facts  and circumstances of the case, it is found that the maker of the statement  was  in a fit state of mind and  had  voluntarily made  the   statement  on the basis  of  personal  knowledge without  being influenced by others and the court on  strict scrutiny finds it to be reliable there is no rule of law  or even  of  prudence that such a reliable piece  of   evidence cannot  be  acted upon unless it is corroborated.   A  dying declaration  is  an independent piece of evidence  like  any other piece of  evidence--neither extra strong nor weak--and can  be acted upon without corroboration if it is  found  to be  otherwise true and reliable.  In the present case  there can  be  no doubt that the  deceased had an  opportunity  to see  her  tormentor as the incident happened  in  broad  day light.   Since the incident occurred in the early  hours  of the  day there was the possibility of a family member  being involved.  There being no dispute that death was  homicidal, the  question is who did it? As no relative from the side of her  parents  was present, the  possibility of  tutoring  by them  must  be  ruled  out.  The  theory  that  her  husband prompted  her  to name the appellant because  his  relations with  the appellant were strained must be brushed  aside  as devoid of merit.  Except the  appellant’s statement in  this

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behalf, there is no other evidence--no such  foundation  was laid in the cross-examination of the investigating officers. Since  it is   conceded that the appellant’s relations  with the   deceased were  not bad, it is difficult to  understand why  the  latter should falsely involved her,  assuming  her husband  did  prompt her, and allow her  real  tormentor  to escape.   Since   the appellant is the only sister  of   her husband,  there remains no doubt about the identity  of  the ’nanad’ (husband’s sister or sister-in-law).  Doubt, if any, is  removed  by  PW 2 Dr. Ambvani’s evidence  to  whom   she disclosed  the  name ‘Padma’.  Both  the  medical-men   were conscious  about  her condition and, therefore,  they  would not  have attached any importance to her statement  if  they had any doubt about her mental capacity. Even Mr. Mehta  had to concede that he was not in a position to say that the two medical-men were motivated in giving false evidence.                                                   96      Mr. Mehta, however,contented  that apart from the  fact that  the   appellant had 90% burns, her   pulse   rate  was high and she had respiratory difficulty, the evidence of  PW 5  Dr.  Solanki  shows  that  he  had  prescribed   morphine injection   and,  therefore, by the time PW  2  Dr.  Ambvani examined her  she could not be in a conscious  state to make the  dying declaration to him.  In this connection he relied on the statement of PW 4 Pankajben who stated that she   had given  the treatment prescribed by Dr. Solanki.  Mr.  Mehta, however,  overlooks PW 4 Pankajben’s  categorical  statement that she had not given any injection to the victim.  On  the other  hand the other nurse PW 2 Rukshmaniben  deposed  that she had given the morphine injection intravenously after Dr. Ambvani left the ward.  Therefore,  the   submission has  no merit.      Mr.  Mehta  then  submitted that having regard  to  the fact  that  the   victim  had  90%  burns  and  her  general condition was poor, it would be  hazardous to  hold that her statements  to  the  two  medical-men were  true.   He  also argued  that she had burns on her lips and her   tongue  was swollen  making it doubtful if she could talk.  We  do   not think  there is any merit in this submission.  In Suresh  v. State  of M.P., [1987] 2 SCC 32 this Court was  required  to deal  with a  more or less similar situation.  In that  case the victim had sustained 100% burns of the second degree and her  dying declaration was recorded by Dr. Bhargava  in  the hospital.  Dr. Bhargava had deposed that the victim was   in a fit state of health.  The evidence, however,disclosed that while  Dr. Bhargave was recording  her statement the  victim had   started going into  a  coma.  Yet this Court  accepted the dying declaration made by the   victim to Dr.  Bhargava. Therefore, the mere fact that she had suffered 90% burns and her general condition was  poor is no reason to  discard the testimony of both of medical-men when they say that she  was in  a  fit  state of mind and was able  to  make  the  dying declaration in question.      Lastly,   the   contention   that   since   the   dying declarations  were not in question and answer from they must be  discarded altogether is not correct.   Dr.  Solanki  had merely  asked the patient how she was burnt to   record  the history  of her case.  The victim answered by  stating  that her  ’nanad’ (husband’ sister) had burnt her.   Dr.  Ambvani too  had  merely tried to ascertain from the  deceased   how she was burnt and it was only after she stated that she  was burnt by her sister-in-law that he tried to find the name of her tormentor.  In these circumstances  we do not think that the  failure  on the part of the medical-men to  record  her statement  in  question and answer from can  in  any  manner

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affect  the  probative  value  to   be  attached  to   their evidence. In Rabi Chandra Padhan & Ors. v. State of  Orissa, [1980] 1 SCC 240 at p. 244 this Court                                                        97 merely  stated that dying declaration should  preferably  be in the question and answer form.  That would be so when  the statement of the victim is sought to be recorded  as a dying declaration.   But  in the instant case  as  seen  from  the evidence of both the medical-men they merely questioned  her for  the  limited purpose of stating they   history  of  the case.   Even otherwise having regard to her  condition  they could   not  have  questioned  her  in  detail.    In   such circumstances  the fact of the statements being  cryptic  is understandable.   See Bankey Lal v. State of U.P.  [1971]  3 SCC  184  We,  therefore, do not think  that  it   would  be reasonable to discard the prosecution evidence in  regard to the dying declaration on such   slender grounds.      In  the  result  we see no merit  in  this  appeal  and dismiss  the  same.  The appellant will submit  to  her bail within   fifteen  days  from  today. Bail  bond  will  stand canceled. R.P.                                         Appeal dismissed.                                                        98