VIJAYA versus STATE REP BY THE INSPECTOR OF POLICE on 15 September 2022

VIJAYA

v.

STATE REP BY THE INSPECTOR OF POLICE

(Criminal Appeal No. 1573 of 2022)

SEPTEMBER 15, 2022

[SURYA KANT AND HRISHIKESH ROY, JJ.]

Evidence Act, 1872 – ss. 32, 157 – Code of Criminal Procedure– s. 164 – Dying declaration – Victim survived – Statement u/s.164Cr.P.C. – Prosecution case that appellant consumed a poisonoussubstance, which she also administered to her 10 months olddaughter – They were taken to hospital – Appellant’s dyingdeclaration was recorded – Appellant survived but her baby died –Appellant’s husband reported matter to the police, which led toregsitration of FIR u/ss. 302 and 309 IPC – Appellant’s husband(PW1) and her father-in-law (PW5), both turned hostile during thetrial – Trial Court found the appellant guilty of the offences u/ss.304(1) and 309 of the IPC – The appeal filed by the appellantagainst the conviction was dismissed by the High Court – Thequestion arises for consideration before the Supreme Court, whetherit is tenable to uphold the conviction of the appellant solely on thebasis of her purported dying declaration which also appears tohave been classified as a statement u/s. 164 of the Cr.P.C.,considering that appellant has denied making any statement? –Held: The subsequent denial by the appellant of the statementattributed to her is of relevance – Appellant has attributed her initialstatement, when she had regained consciousness in the hospital, toinfluencing from the police who allegedly convinced her that theywould apprehend the individuals who had offered her daughterand her the tainted honey, and also recover the jewelry that theseunidentified persons had stolen – However, she claimed that theyasked her to remain silent about these details and simply conveythat the two of them had consumed poisonous substance – This hasan impact on the genuineness of the initial statement made by theappellant combined with the subsequent hostile turn taken by somewitnesses (PW1 and PW5) – Also, guilt of the appellant not tallyingeasily with her continuing marriage to PW1 and her fostering oftwo children after death of her first born – This creates a reasonable

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Adoubt regarding appellant’s conviction – Further, there were issuesof contention that, were not adequately addressed – The samebenefits the appellant – Therefore, judgments of the trial Court andthe High Court set aside.

Allowing the appeal, the CourtB

HELD: 1. At the outset, the subsequent denial by theappellant of the statement attributed to her is of relevance. Itfurther appears that PWs 1 & 5, appellant’s husband who is alsothe complainant, and her father-in-law, have both turned hostile.However, the Sessions Judge brushed aside this factor based onCthe rationale that these individuals were, ultimately, interestedin ensuring that the appellant was acquitted and hence resiledfrom their earlier statements which had supported her guilt. Thetrial Court opined that the prosecution version of events was,by far, the more plausible and logically resulted in the demise ofthe appellant’s daughter. [Para 12][373-H; 374-A-B]D

2. Undoubtedly there is some murkiness surrounding theexact circumstances in which the appellant and her daughterconsumed a poisonous substance, Odeuvanthlai. The appellanthas attributed her initial statement on 11.10.2012, when she hadregained consciousness in the hospital, to influencing from theEpolice who allegedly convinced her that they would apprehendthe individuals who had offered her daughter and her the taintedhoney, and also recover the jewelry that these unidentifiedpersons had stolen. However, she claimed that they asked her toremain silent about these details and simply convey that the twoFof them had consumed poisonous substance. This sequence ofevents has been disbelieved by the Sessions Judge and the HighCourt. Be that as it may, this necessarily has an impact on thegenuineness of the initial statement made by the appellant.Combined with the subsequent hostile turns taken by some ofthe vital witnesses in the trial, a seed of doubt is placed in termsGof the conviction of the appellant. [Paras 14 & 15][374-D-G]

3. Thus, the focus for this Court when ascertainingreasonable doubt is not merely the possibility of doubt or of H

another version of events but rather a version that survives thescrutiny of an honest and conscientious judicial mind. In thepresent case, it is to be noted that following the incident, themarriage between the appellant and PW1, the complainant,continues to subsist and that she has given birth to two minorchildren. When considering the appellant’s guilt, the SessionsJudge and the High Court have not satisfactorily considered theeffect and impact of PW1 & PW’5’s failure to support theprosecution. When considering the disputed confession by theappellant, the bedrock on which the prosecution’s case stoodwas undone but the Sessions Judge and the High Court proceededon what prima facie appears to be an almost unqualifiedacceptance that the confession remained unassailable. This wasin spite of the fact that only PW8 remained to provide some degreeof corroboration regarding the prosecution’s story. The reasonsfor why PW1 & PW5 turned hostile may be numerous and ascompelling as each other. While the lower courts have consideredthem to be interested witnesses concerned with the acquittal ofthe appellant, this Court is unable to ascertain why that is a morelikely reason for their non-cooperation than the fact that theybelieved the appellant was being wrongly accused and that theirinitial statements were taken under duress. Undoubtedly, it isnot incumbent upon this Court, nor possible, to undertake sucha factual analysis at this stage. This Court can only observe thatfurther consideration of this point was necessary, especially inlight of the guilt of the appellant not tallying easily with hercontinuing marriage to PW1 and her fostering of two childrenafter the tragic loss of her first born. It is the absence of anevaluation of this nuance on the record that creates a reasonabledoubt in our minds regarding appellant’s conviction. When thefacts and circumstances of a case are as peculiar as the one beforeus, the judicial responsibility to scrape the bottom of the barreland address the specificities head on is even greater. It is in thesame vein, that this Court is compelled to observe that thereare issues of contention that, having not been adequatelyaddressed, benefit the appellant. [Paras 17-21][375-H; 376-A-G]

Ramprasad v. State of Maharashtra, (1999) 5 SCC 30: [1999] 3 SCR 519; S. Arul Raja v. State of Tamil Nadu, ABCDEFG

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A(2010) 8 SCC 233 : [2010] 9 SCR 356; State ofHaryana v. Bhagirath & Ors. (1999) 5 SCC 96 : [1999]3 SCR 529; State of U.P. v. Veer Singh (2004) 10 SCC117 : [2004] 1 Suppl. SCR 790 – relied on.

Case Law Reference

CCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1573 of 2022.

From the Judgment and Order dated 19.03.2019 of the High Courtof Judicature at Madras in Criminal Appeal No.257 of 2017.

DS. Nagamuthu, Sr. Adv., Y. Arunagiri, M. P. Parthiban, HardikGautam, Raghunatha Sethupathy, Advs. for the Appellant.

Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,Sanjeev Kumar Mahara, Advs. for the Respondent.

The Judgment of the Court was delivered byESURYA KANT, J.

1. Leave granted.

2. The appellant is wife of the de-facto complainant Mani @Allimuthu. After about 2 years of their marriage, the couple was blessedFwith a daughter. It appears that on account of appellant’s failure to cooksufficient food for her in-laws, who visited their house, a quarrel tookplace between the husband and the wife. The appellant, unfortunately,decided to commit suicide and consumed a poisonous substance,Odeuvanthlai, which she also administered to their 10 months old daughter.The husband of the appellant, namely, the de-facto complainant, hadGgone for work at that time and when he came back to his house after hiswork on 10-10-2012, he found both the appellant and their daughterunconscious. They were taken to Vinayaga Mission Hospital, Salemwhere the baby girl died on 13-10-2012. When the appellant gainedconsciousness, her purported Dying Declaration (Exhibit ‘P-20’) wasHrecorded on 11-10-2012 by learned Judicial Magistrate (P.W. 13). The appellant eventually survived. The husband of the appellant hadmeanwhile reported the matter to the Police, which led to registration ofa case under Sections 302 and 309 of the Indian Penal Code (in short‘Code’) against the appellant for causing the death of their daughter.

3. The appellant was put on trial, in which 14 witnesses wereexamined from the prosecution side, besides reliance on 23 documents.

4. The Principal Sessions Judge, Namakkal found the appellantguilty of the offences under Sections 304(1) and 309 of the Code andsentenced her under Section 304(1) to undergo imprisonment for oneyear along with fine of Rs.5,000/-, in default whereof, she was requiredto undergo further imprisonment for three months. The appellant wasalso sentenced to undergo imprisonment for six months under Section309 of the Code along with fine of Rs.1,000/-.

5. The appellant preferred appeal before the High Court ofJudicature at Madras, but her appeal was turned down by the HighCourt on the following premise:- “10. On reading of the entire materials EX.P20 recorded by P.W.2 stated that being the dying declaration at the time when she wasadmitted in the hospital, the learned Magistrate recorded thestatement from the appellant. The appellant has clearly admittedthat she consumed poison due to the stomach pain and also shegave the poison to the child. The statement under Section 164 ofCr.P.C., made before the learned Judicial Magistrate, and theevidence of the doctor that she has consumed poison and thesame was corroborated by the evidence of P.W.8. Therefore noother evidence is necessary to find out that the accused hascommitted the offence. The medical evidence also corroboratedthe same. The learned counsel for the appellant would submitthat the accused was admitted in the Government hospital, Salem,but the medical certificate was not produced. FIR also registeredafter three days from the date of occurrence.

11. On considering the case, there was a wordy quarrel betweenthe family members and due to the quarrel the accused suddenlytaken the decision to consume poison and gave the same to herchild also. Thereafter, she was admitted in Government hospitalimmediately. The statement recorded under Section 164 of Cr.P.C.,from the deceased which was marked as Ex.P20 and which was A

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Acorroborated by the evidence of P.W.8 doctor who has giventreatment to the deceased Kanishka and the accused Vijaya.”

6. The question that arises for consideration is whether it is tenableto uphold the conviction of the appellant solely on the basis of her purporteddying declaration (Exhibit ‘P20’) which also appears to have beenBclassified as a Statement under Section 164 of the Code of CriminalProcedure, 1973, considering that Appellant has denied making anystatement?

7. In this regard, there has been a clear and consistent approachtaken by this Court toward a dying declaration when the individual inCquestion subsequently survives. In State of U.P. v. Veer Singh (2004)10 SCC 117, it was held:

“5. It is trite law that when maker of purported dying declarationsurvives the same is not statement under Section 32 of the IndianEvidence Act, 1872 (for short the ‘Evidence Act’) but is a statementin terms of Section 164 of the Code. It can be used under SectionD157 of the Evidence Act for the purpose of corroboration andunder Section 155 for the purpose of contradiction.”

8. There are also some decisions of this Court which cast doubton whether such a statement can be treated as a confessional statement.We may, in this regard, rely upon two decisions, i.e., (i) “Ramprasad vsEState of Maharashtra, (1999) 5 SCC 30 and (ii) “S. Arul Raja vs State ofTamil Nadu, (2010) 8 SCC 233.

9. In Ramprasad (Supra) the bar on classifying a statement as adying declaration when the conveyer of the declaration does not succumbto his/her injuries, was detailed as follows:

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“We are in full agreement with the contention of the learnedcounsel that Ext.52 cannot be used as evidence under Section32 of the Evidence Act though it was recorded as a dyingdeclaration. At the time when PW.1 gave the statement hewould have been under expectation of death but that is notGsufficient to wiggle it into the cassette of Section 32. As longas the maker of the statement is alive it would remain only inthe realm of a statement recorded during investigation.”

10. The Court in S. Arul Raja (Supra) then went on to addressthe issue of such a statement being treated as a confessional statement,Hby holding:

“40. This Court in the case of Sharawan Bhadaji Bhirad &Others v. State of Maharashtra reported in (2002) 10 SCC56 held that when a statement is recorded as a dyingdeclaration and the victim survives, such statement need notstand the strict scrutiny of a dying declaration, but may betreated as a statement under Section 164, Cr.P.C.

41. Therefore, with the said statement inadmissible as a dyingdeclaration, the question that arises is: whether the statementcould be admissible either as a confession or as an extra-judicial confession?

42. The events surrounding the confession made by A1 whilein hospital, and more significantly, in police custody, are tooambiguous to support conviction of the appellant.

43. Section 164 Cr.P.C. provides guidelines to be followedfor taking the statement of accused as a confession. The oneessential condition is that it must be made voluntarily and notunder threat or coercion. This Court in Aloke Nath Dutta &Ors. v. State of West Bengal reported in (2007) 12 SCC 230held as under: - “87. Confession ordinarily is admissible in evidence. It is arelevant fact. It can be acted upon. Confession may undercertain circumstances and subject to law laid down by thesuperior judiciary from time to time form the basis forconviction. It is, however, trite that for the said purpose thecourt has to satisfy itself in regard to:

(i) voluntariness of the confession; (ii) truthfulness of theconfession; (iii) corroboration.”

11. Hence, the focus of our inquiry is two-fold: i) Whether thestatement made by the Appellant, which does not qualify as a dyingdeclaration under Section 32 of the Evidence Act but, rather, as astatement under Section 164 of the CrPC, may be treated as a confessionstatement; and ii) Whether there is corroborative evidence that supportsthe prosecution’s case.

12. At the outset, the subsequent denial by the Appellant of thestatement attributed to her is of relevance. It further appears that PWs1 & 5, Appellant’s husband who is also the complainant, and her father- A

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Ain-law, have both turned hostile. However, the learned Sessions Judgebrushed aside this factor based on the rationale that these individualswere, ultimately, interested in ensuring that the Appellant was acquittedand hence resiled from their earlier statements which had supported herguilt. The trail court opined that the prosecution version of events was,by far, the more plausible and logically resulted in the demise of theBAppellant’s daughter.

13. Learned Senior Counsel, Mr. S. Nagamuthu, has vehementlyurged that the only basis for the conviction of Appellant after the hostileturn of this class of witnesses, was the purported declaration made bythe Appellant while she was admitted in hospital and the statement ofCthe doctor entrusted with treating the Appellant, PW8. However, heassails PW8’s statement as being shorn of any particulars beyond thefact that he treated Appellant and that both the Appellant and the deceasedhad consumed the same poisonous substance.

14. Undoubtedly there is some murkiness surrounding the exactDcircumstances in which the Appellant and her daughter consumedOdeuvanthlai. The Appellant has attributed her initial statement on11.10.2012, when she had regained consciousness in the hospital, toinfluencing from the police who allegedly convinced her that they wouldapprehend the individuals who had offered her daughter and her theEtainted honey, and also recover the jewelry that these unidentified personshad stolen. However, she claimed that they asked her to remain silentabout these details and simply convey that the two of them had consumedOdeuvanthlai.

15. This sequence of events has been disbelieved by the SessionsFJudge and the High Court. Be that as it may, this necessarily has animpact on the genuineness of the initial statement made by the Appellant.Combined with the subsequent hostile turns taken by some of the vitalwitnesses in the trial, a seed of doubt is planted in terms of the convictionof the Appellant.

G16. At this stage, it is important to understand the ambit of“reasonable doubt” in a criminal proceeding. In State of Haryana v.Bhagirath & Ors. (1999) 5 SCC 96 the difficulty in demarcating thecontours of “reasonable doubt” was remarked upon:

“10. It is nearly impossible in any criminal trial to prove allelements with scientific precision. A criminal court could beH

convinced of the guilt only beyond the range of a reasonabledoubt. Of course, the expression “reasonable doubt” isincapable of definition. Modern thinking is in favour of theview that proof beyond a reasonable doubt is the same asproof which affords moral certainty to the judge.

11. Francis Wharton, a celebrated writer on Criminal Law inUnited States has quoted from judicial pronouncements in hisbook on “Wharton’s Criminal Evidence” as follows (at page31, volume 1 of the 12th Edition):

It is difficult to define the phrase “reasonable doubt.”However, in all criminal cases a careful explanation of theterm ought to be given. A definition often quoted or followedis that given by Chief Justice Saw in the Webster Case. Hesays: “It is not mere possible doubt, because everythingrelating to human affairs and depending upon moral evidenceis open to some possible or imaginary doubt. It is that state ofthe case which, after the entire comparison and considerationof all the evidence, leaves the minds of the jurors in thatconsideration that they cannot say they feel an abidingconviction to a moral certainty of the truth of the charge.

12. In the treatise on “The Law of Criminal Evidence”authored by HC Underbill it is stated (at page 34, Volume 1of the Fifth Edition) thus:

The doubt to be reasonable must be such a one as an honest,sensible and fair-minded man might, with reason, entertainconsistent with a conscientious desire to ascertain the truth.An honestly entertained doubt of guilt is a reasonable doubt.A vague conjecture or an inference of the possibility of theinnocence of the accused is not a reasonable doubt. Areasonable doubt is one which arises from a consideration ofall the evidence in a fair and reasonable way. There must bea candid consideration of all the evidence and if, after thiscandid consideration is had by the jurors, there remains inthe minds a conviction of the guilt of the accused, then thereis no room for a reasonable doubt.”

17. Thus, the focus for us when ascertaining reasonable doubt isnot merely the possibility of doubt or of another version of events but A

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Arather a version that survives the scrutiny of an honest and conscientiousjudicial mind. In the present case, we note that following the incident,the marriage between the Appellant and PW1, the complainant, continuesto subsist and that she has given birth to two minor children.

18. When considering the Appellant’s guilt, the Sessions JudgeBand the High Court have not satisfactorily considered the effect andimpact of PW1 & PW’5’s failure to support the prosecution. Whenconsidering the disputed confession by the Appellant, the bedrock onwhich the prosecution’s case stood was undone but the Sessions Judgeand the High Court proceeded on what prima facie appears to be analmost unqualified acceptance that the confession remained unassailable.CThis was in spite of the fact that only PW8 remained to provide somedegree of corroboration regarding the prosecution’s story.

19. The reasons for why PW1 & PW5 turned hostile may benumerous and as compelling as each other. While the lower courts haveconsidered them to be interested witnesses concerned with the acquittalDof the Appellant, we are unable to ascertain why that is a more likelyreason for their non-cooperation than the fact that they believed theAppellant was being wrongly accused and that their initial statementswere taken under duress.

20. Undoubtedly, it is not incumbent upon us, nor possible, toEundertake such a factual analysis at this stage. We can only observethat further consideration of this point was necessary, especially in lightof the guilt of the Appellant not tallying easily with her continuing marriageto PW1 and her fostering of two children after the tragic loss of her firstborn. It is the absence of an evaluation of this nuance on the record thatFcreates a reasonable doubt in our minds regarding Appellant’s conviction.

21. When the facts and circumstances of a case are as peculiaras the one before us, the judicial responsibility to scrape the bottom ofthe barrel and address the specificities head on is even greater. It is inthe same vein, that we are compelled to observe that there are issues ofGcontention that, having not been adequately addressed, benefit theAppellant.

22. For the reasons aforesaid, the appeal is allowed and theJudgment dated 27-4-2017 of the learned Trial Court and the impugnedJudgment dated 19-3-2019 passed by the High Court both are set aside.

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VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE[SURYA KANT, J.]

23. Needless to state that interim protection granted by this Courtto the appellant on 13-8-2020 and continued on 16-10-2020, is madeabsolute.

23. Needless to state that interim protection granted by this CourtAto the appellant on 13-8-2020 and continued on 16-10-2020, is madeabsolute.Ankit GyanAppeal allowed.(Assisted by : Rahul Rathi, LCRA)B

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