IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. CRIMINAL APPEAL NO.169/2004 Mukesh Vs. State Date of order : 8/8/2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE S.S. KOTHARI Shri Vinay Pal Yadav for the appellant. Shri J.R. Bijarniya, PP for State. ******
REPORTABLE (PER HON'BLE MOHAMMAD RAFIQ, J.) This appeal has been filed by the accused-appellant Mukesh against the judgement dated 15.1.2004 passed by the Additional Sessions Judge (Fast Track), Bheror, Alwar who thereby convicted him for offence u/s.302/34 and 341 of IPC. In so far as offence u/s.302/34 of IPC is concerned, he was sentenced to undergo life imprisonment with fine of Rs.2,000/- and in default whereof, to further undergo six months' simple imprisonment. Regarding offence u/s.341 of IPC, he was sentenced to undergo rigorous imprisonment of one month with fine of Rs.500/- and in default thereof to further undergo 15 days simple imprisonment. Both the sentences to run concurrently.
The first information report was lodged on the basis of parcha bayan, Ex.P7 of one Sandeep, which was recorded in the hospital for offence u/s.307, 323, 341 and 334B of IPC with Police Station Behror wherein he has stated that at about 10.30 on 11.5.02, while he was coming from the house of Sama Ahir Gandala to his house, Krishna S/o Habla Ahir and Mukesh by caste Khati forceably caught hold of him. While Krishna was holding him, Mukesh poured kerosene on his body. Krishna thereafter lit fire by match. He fell down on the ground and rolled over the sand and thereby extinguished the fire. He came to his residence in burnt condition and narrated the entire story to his mother, who brought him to hospital. Even as the investigation commenced, injured Mukesh died due to burn injuries, therefore, the offence under Section 302 of IPC was added. Challan was filed against both the accused namely; present appellants Mukesh and co-accused Krishna. However, Krishna after his release on bail during trial, absconded and therefore the trial of the present accused-appellant Mukesh was segregated and eventually he was convicted by judgement referred to above. Hence this appeal.
Shri Vinay Pal Yadav, learned counsel for the appellant has argued that the conviction of the appellant has been sustained by the learned trial court merely on the basis of dying declaration of the deceased, which is full of discrepancies inasmuch as the Medical Officer, Dr. Manu Rajan did not give any categorical certificate to the effect that deceased was in fit mental condition to give the statement. The Medical Officer Dr. Manu Ranjan who gave fitness certificate for recording his statement by the Judicial Magistrate, has herself not been examined in evidence. Learned counsel in this connection referred to Ex.P-13, the dying declaration of the deceased Sandeep and argued that the Medical Officer, Dr. Manu Ranjan stated that `patient is fit for giving statement' but that is not synonymous to saying `the patient was in fit mental condition to give his statement'. The fact that the Judicial Magistrate at the end of the dying declaration has put a note that immediately on completion of the statement, injured Sandeep became unconscious, raises a doubt about his mental fitness and also about the fact that when he was rendered unconscious at the close of the statement, how possibly could he affix his thumb impression on the dying declaration. In this connection, learned counsel also referred to the statement of PW-13 Dr. Om Prakash Saini and argued that this witness stated that the deceased was burnt all over his body except right hips, that would mean that his hands including thumbs were also burnt, therefore, how possibly could he affix his thumb impression on the dying declaration. Referring to the statement of the PW-10 Ajay Kumar Sharma, the Judicial Magistrate, who recorded statement, Shri Sandeep Yadav, learned counsel for the appellant submitted that PW-10 Ajay Kumar Sharma, Judicial Magistrate in his statement has stated that this witness has made the statement that injured Sandeep became unconscious only after affixing his thumb impression on the statement and thereafter he was called by his name number of times, but he did not respond. This creates doubt about the veracity of the dying declaration.
Shri Vinay Pal Yadav, learned counsel referring to the site plan, Ex.P-1 argued that the genesis of the incident has been suppressed by the prosecution and the true facts have been withheld from the Court. It has been stated in the site plan that there was a bed sheet and a burnt cloth piece found at mark-X-1 and another muddy bed sheet was lying at mark X-2 which shows that story was something else, rather than what has been disclosed. Learned counsel submitted that statement of PW-2 Lal Singh and PW-3 Lala Ram have wrongly been relied by the trial court because on their own version, they have proved that they are not eye witnesses of the incident. What they told is that when they reached the scene of occurrence, the deceased Sandeep was already put to fire and they found the deceased Sandeep already burning, but as to who put him to fire was not seen by them. It is submitted that no witnesses from adjoining area, who in the natural course were residing there, have been produced in evidence. PW-11 Ram Kala being mother of the deceased and PW-4 Vikas @ Monu being his brother are interested witnesses. It is doubtful whether the deceased got fire due to pouring of petrol because PW-5 Dr. Rajeev Gupta who, first attended the patient in the hospital and conducted postmortem of his body has stated that there was no smell of kerosene coming out from the body of deceased. PW-13 Dr. Om Prakash Saini when asked in cross examination, has pleaded ignorance about the fact whether a note was put on the bed head ticket of the deceased that he was not in a position to speak. Learned counsel therefore argued that the learned trial court has failed to appreciate the sanctity attached to a dying declaration, which becomes suspicious for all the aforesaid reasons. No motive has been proved as to why the accused appellant would put the deceased to fire. There are contradictions between parcha bayan and dying declaration. The appellant has been falsely implicated in this case.
Shri Vinay Pal Yadav, learned counsel in support of his submissions relied on the judgement of Supreme Court in State of Punjab vs. Gian Kaur & Anr.-1998 (2) Crimes 25 (SC) and argued that Supreme Court in that case while considering the statement of the Doctor wherein he stated that deceased was having 100% burns held that if he was burnt to the extent of 100%, both her thumbs would also got burnt, how could then he fix her thumb impression. There were inconsistencies in statement of prosecution of witnesses and therefore High Court was right in giving benefit of doubt to the accused. Learned counsel also relied on another judgement of Supreme Court in Amol Singh vs. State of Madhya Pradesh-(2008) 2 SCC (Cri.) 637 and argued that Supreme Court in that case held that if discrepancies in the dying declaration of deceased makes it doubtful, it would not be safe to convict the accused for offence u/s.302 of IPC. Learned counsel also relied on the judgement of Supreme Court in Paparambaka Rosamma & Ors. vs. State of A.P.-(1999) 7 SCC 695 and argued that in that case Supreme Court held that certificate that was given by the Doctor was only about consciousness, but it was not specific to the effect whether deceased was in unfit state of mind to give statement, therefore, the dying declaration was held to be suffering from serious infirmities and Supreme Court observed that it was unsafe to base the conviction of accused solely on such dying declaration. It is therefore prayed that the impugned judgement passed by the learned trial court be set aside and the appellant be acquitted of the charges framed against him.
Shri J.R. Bijarniya, learned Public Prosecutor opposed the appeal and argued that in the present case dying declaration of the deceased is not the only basis on which the conviction of the appellant has been recorded. There are many other circumstances which prove the guilt of the appellant Mukesh Kumar and the co-accused Krishna beyond reasonable doubt. Learned Public Prosecutor argued that first version of the deceased reflected from the parcha bayan Ex.P7 which he gave soon after he was brought to the hospital, then in statement u/s.161 Cr.P.C. and thereafter in dying declaration Ex.P13 are consistent. He has given same version that Krishna and Mukesh forcibly stopped him on the way. While Krishna caught hold of him, Mukesh poured kerosene on him, Krishna lit fire. The deceased extinguished the fire by rolling on sand and ran to his house where he narrated the entire incident to his mother. His statement has been corroborated from the statement of PW-2 Lal Singh, who saw deceased Sandeep burning at the spot, who has stated that Sandeep embraced Krishna and whereupon Krishna pushed him on to the ground and thereafter Sandeep rolled on the ground to extinguish the fire and thereafter he went to his house. Sandeep told him that it was accused Krishna and Mukesh, who poured kerosene on him and put him to fire. Exactly, similar statement has been made by PW-3 Lala Ram. Both of whom went to the house of the deceased and met her mother. Their credibility has not been doubted, in any manner, nor has it been shown that in any manner they are related to the deceased.
Learned Public Prosecutor submitted that unlike in the most of the cases cited by learned counsel for the appellant, the dying declaration in the present case has been recorded by a Judicial Magistrate, after the fitness certificate has been given by the Medical Officer. There is no language prescribed for giving the fitness certificate. When deceased Sandeep had burns all over the body, obviously he would not have any physical fitness, therefore, the phraseology fit to give statement would only denote to his fitness to give statement. Learned Public Prosecutor argued that mere use of the language `fit to give statement' would be sufficient certificate of fitness. He in this connection relied on the judgement of Supreme Court in Laxman vs. State of Maharashtra-AIR 2002 SC 2973. Argument of learned counsel for the appellant in this respect therefore liable to be rejected.
It is also argued that the conviction can be based solely on dying declaration if it is true and inspires confidence and in the present case, it does inspire confidence. Even then there are other witnesses also who have independently proved the offence against the accused-appellant. It is argued that merely because the doctor, who gave certificate of fitness was not examined, could not be a basis to completely discard the dying declaration, particularly when the Judicial Magistrate who recorded dying declaration has been examined and has proved the same. PW-10, Shri Ajay Kumar Sharma, the Judicial Magistrate has also stated that when statement of patient was recorded he was fully conscious. It has been clarified by him that soon after the affixation of his thumb impression, the deceased became unconscious and that despite calling him by name several times, he could not respond. Not much can be made out from the bed sheet and cloth recovered from the site of the incident. Apart from this fact, the site plan also indicate the same version, which has been completely missed by learned counsel for the appellant. Learned PP at this juncture referred to the site plan and argued that mention of a bottle containing small quantity of kerosene was found at mark X-3 and there are signs of the deceased rolling over the sand from mark X to X-2.
We have given our conscious consideration to the rival submissions and perused the material on record.
Dealing with the first argument first that has been raised on behalf of appellant, we have to find out whether dying declaration Ex.P-13 that has been recorded by the Magistrate in this case suffers from any such infirmities that renders its trustworthiness doubtful? No doubt, the Medical Officer who gave the certificate of fitness of the deceased has not been examined, but then the Judicial Magistrate, PW-10 Ajay Kumar who recorded the statement of the deceased has been examined. He has stated that he enquired from the Doctor at duty Dr. Manu Rajan about fitness of the deceased and when he gave the fitness certificate of the deceased, then only he recorded the statement. Learned Judicial Magistrate has verified the fact that dying declaration has been recorded in his hand writing and it contains the thumb impression of the deceased. The dying declaration was recorded in the form of questions and answers. He has clarified that when he started recording statement, deceased was fully conscious and when his thumb impression was taken on the statement after answering the last question, he became unconscious and that despite calling him by name several times, he did not respond. The argument of learned counsel for the appellant that thumb impression was got affixed after the deceased became unconscious, therefore, cannot be accepted. Moreover, it cannot be accepted that Judicial Magistrate would make incorrect statement, being a neutral person and a Judicial Magistrate. If he wanted to withhold anything, there was need for him to put the note like the one he did at the bottom of the statement that after answering the last question, the injured Sandeep became unconscious and despite calling him several times, he did not respond. This is a two page statement wherein thumb impression of the deceased has been obtained on each page.
In the present case, dying declaration is not sole basis for recording order of conviction of the appellant, although certainly it is one of the significant component of the entire evidence against the appellant but not the only evidence. Even if, this dying declaration need to be corroborated from other evidence, there is enough evidence against the appellant in this case that proves his guilt beyond reasonable doubt, which we shall presently discuss. The earliest version that has been given by the deceased is the parcha bayan recorded by the Doctor soon after he was brought to the hospital. PW-6 Hukam Chandra, Assistant Sub-Inspector of Police has been examined. He has stated that this statement was recorded by him in the presence of Dr. Rajeev Gupta, who himself has been examined as a prosecution witness and whose statement has already been recorded as PW-5. Dr. Rajeev Gupta has corroborated the fact that parcha bayan of the deceased was recorded by PW-6 Hukam Chand in his presence. The parcha bayan contains the statement of Dr. Rajeev Gupta with the word attested. Dr. Rajeev Gupta has even stated that whatever was spoken by deceased Sandeep was written in the parcha bayan by PW-6 Hukam Chand in his presence and that Sandeep was fully conscious and in a position to give statement. In this parcha bayan also Sandeep has given the same version, which he reiterated in dying declaration. Moreover, it has been further corroborated by the statement of PW-2 Lal Singh, who has stated that when he reached the site of the occurrence, he saw Sandeep burning and also saw that accused Krishna and Mukesh were standing there and were laughing at Sandeep. PW-3 Lala Ram has also stated that on hearing hue and cry, he ran at the seen of occurrence and saw Sandeep burning and crying that Krishan and Mukesh have put him to fire. Sandeep was rolling on the sand and when the fire was extinguished, he went rushing to his house. These witnesses, Lala Ram and Lal Singh accompanied Sandeep to his house where Sandeep told his mother and brother that Mukesh and Krishna had put him to fire. These witnesses have withstood the scrutiny of cross examination and could not be shaken. PW-4, Vikas @ Monu, brother of deceased Sandeep has spoken what was stated to him by his brother Sandeep that Krishna and Mukesh caught hold on him, while Mukesh poured kerosene on his body, Krishna lit the fire by match and when he embraced Krishna, he pushed him on the ground. He then rolled on the sand to extinguish the fire.
And then, comes the fact that PW-5 Dr. Rajeev Gupta in his statement has stated that the deceased got burnt from some inflammatory substance and that was dangerous to life. Since he was not in a position to give his signature, his thumb impression was taken. This means that Rajeev Gupta saw him giving thumb impression and has been a witness to the thumb impression given by deceased on the parcha bayan Ex.P-7. Contention that the entire body of the deceased was burnt and he was not in a position to give thumb impression cannot be accepted also in respect of dying declaration Ex.P-13. Moreover, the evidence that has come on record clearly show that after fire was extinguished, the deceased Sandeep was fit even to walk to his house and came there to see her mother and narrated the entire story. Since the evidence has also come on record from the statement of Lal Singh PW-2 and Lala Ram PW-3 that the deceased Sandeep had rolled on the ground and thereby got the fire extinguished, which may have been possible only when small quantity of kerosene was used to lit the Sandeep to fire, which is explained by the statement extracted from Dr. Rajeev Gupta in the cross examination that he did not find the kerosene smell on the body but, that does not mean that kerosene was not used to burn the deceased. This is because Ex.P-1, the site plan shows the presence of a bottle at place X-3 containing small quantity of kerosene which has been seized and has been proved in evidence by PW-8 Shambhu Dayal, the police witness. Apart from the parcha bayan and dying declaration of the deceased, in between his statement u/s.161 Cr.P.C. was also recorded by Sant Lal, Assistant Sub Inspector, who has been produced in evidence as PW-9, who has proved the said statement as Ex.P-11. In Ex.P-11, the same version has been given by the deceased Sandeep, which he has disclosed in parcha bayan and dying declaration and there being no difference whatsoever.
The Hon'ble Supreme Court in Paparambaka Rosamma, supra has found it unsafe to base the conviction of the accused solely on dying declaration of the deceased which was found to be suffering from serious infirmities such as the Doctor should gave certification not only about consciousness but also about fit state of mind of deceased that existed before recording of the dying declaration which is essential. Instead, that note was made by the Magistrate to say that `the deceased was conscious' which has held to be entirely different than saying that `patient is fit to give statement, which is, what has been certified in the present case. Although, Supreme Court has held that when conviction is solely based on the dying declaration, the Court has to consider the same with countenance.
In Amol Singh, supra, the Supreme Court was dealing with a case where there were multiple dying declarations and inconsistencies and discrepancies in the last dying declaration made it doubtful and it was held to be not in conformity with the first version in the FIR and the earlier dying declaration. Circumstances in the present case are rather converse where the discloser made by the deceased in the parcha bayan to the police, then in his statement under Section 161 to Assistant Sub-Inspector of Police and thereafter in his dying declaration, are all marked by their consistencies and trustworthinesses and fully inspire the confidence.
It is trite law that while considering the dying declaration in a case, the Court has to weigh all the attending circumstances and come to the independent finding whether the dying declaration is properly recorded and whether it is voluntary and truthful and if on careful scrutiny, the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there should be no legal impediment to make it a basis of conviction, even if there is no corroboration. In the present case, however, there is substantial corroborating evidence to support and even independently prove what has been stated by the deceased in his dying declaration.
The judgement of Supreme Court in Gian Kaur, supra is also of not much help to the appellant. In that case, the Doctor who performed the postmortem of the deceased had given a statement that he had 100% burns over the body and his thumbs were also burnt. The dying declaration, containing a thumb mark was thus not believed because thumb mark on dying declaration had clear ridges and curves. In this case, however, Dr. Rajeev Gupta has corroborated the fact that parcha bayan of the deceased was recorded by PW-6 Hukam Chand on which he affixed his thumb impression in his presence. The judgment is therefore distinguishable.
All the judgements cited by the learned counsel for the appellant are therefore distinguishable on facts and cannot be of any help to him.
Reference may be usefully made to judgement of the Supreme Court in Sunder Singh vs. State of Uttaranchal-(2010) 10 SCC 611 as regard the non-examination of the Doctor, who gave the certificate of fitness. It was held therein that for basing conviction on dying declaration, same must pass all tests of voluntariness, fit condition of mind of maker of dying declaration, witness not being influenced by any other factors and truthfulness of dying declaration. Though importance of evidence of Doctor as regards fitness of maker to make it cannot be understated, yet there could be cases, where though there is no certification by Doctor, still dying declaration can be accepted. On facts of that case, it was held that instant case belonged to such category and thus non-endorsement of Doctor on dying declaration was inconsequential. Here in the present case, there is, in fact, endorsement made by the Doctor and merely because he could not be produced in witness box, it cannot be discarded, which even otherwise proves the guilt of the accused-appellant beyond reasonable doubt, which is the requirement of law.
The Supreme Court in Atbir vs. Government of NCT of Delhi-(2010) 9 SCC 1, while revisiting its previous judgements in Munnu Raja vs. State of M.P.-(1976) 3 SCC 104, Paras Yadav vs. State of Bihar-(1999) 2 SCC 126, Balbir Singh vs. State of Punjab-(2006) 12 SCC 283, State of Rajasthan vs. Wakteng-(2007) 14 SCC 550, Bijoy Das vs. State of W.B.-(2008) 4 SCC 511, Muthu Kutty vs. State-(2005) 9 SCC 113, Panneerselvam vs. State of T.N.-(2008) 17 SCC 190, culled out the following principles to be kept in view while dealing with a case of dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
The Constitution Bench of the Supreme Court in Laxman, supra held that absence of certification of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken.
In view of above discussion, we do not find any merit in this appeal, which is accordingly dismissed.
(S.S. KOTHARI),J. (MOHAMMAD RAFIQ), J. RS/-