RAJARAM versus STATE OF MADHYA PRADESH & ORS on 16 December 2022

1. Special leave granted. The appellant (husband of the deceased)is aggrieved by his conviction under Section 498A of the Indian PenalCode (IPC) and the sentence imposed on him. His appeal, against theconviction and sentence in respect of that offence, was dismissed by theimpugned judgment of the Madhya Pradesh High Court.

2. The prosecution alleged that on 23-04-2009 at 10:00 A.M.,information was received from the hospital that a woman had been broughtthere by her husband (the appellant) in a burnt condition. At the requestof Police Station Ashok Nagar District Ashoknagar, Guna, M.P, the medicolegal certificate (MLC) of the injured Pushpa was issued. Her dyingdeclaration was recorded.

3. On 23-04-2009, some burnt clothes smelling of kerosene oil,one chimani, one broken mangalsutra smelling of kerosene oil, a matchbox with “Anand” containing 3-4 match sticks were seized. A spot maptoo, was prepared. Statements of witnesses were recorded. The injuredPushpa succumbed to her injuries on 10-05-2009 in the district hospital,Guna. A post-mortem was conducted. The seized articles were sent forFSL. Police, after completing the investigation filed the charge sheetagainst the Appellants for offence under Sections 302, 307, 304B, 498A/34 of Indian Penal Code (IPC) and under Section 3 and 4 of the Dowry A

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AProhibition Act. The trial court, by order dated 30-9-2009, framed chargesunder Sections 498A, 302 or in the alternative 304B of IPC against theSanti Bai, whereas framed charges under Sections 498A, 304B of IPCagainst remaining accused, namely the appellant, Ramdayal, Ram Singh,Kamla Bai and Susheela Bai @ Halki. The accused pleaded not guilty.The prosecution examined 15 witnesses. Susheela Bai @ Halki hadBinitially appeared before the trial court and thereafter absented herself;she was declared absconding and a perpetual warrant of arrest wasissued. The trial court, by the impugned judgments, convicted andsentenced Santi Bai for the offence under Section 302 IPC and theappellant and other accused for the offence under Section 498A IPC.C4. The appellant and the other accused challenged their convictionand sentence. The High Court, by the impugned order, rejected theirappeals. Consequently, the appellant’s conviction and sentence underSection 498A IPC was affirmed.

5. Mr. Divyakant Lahoti, learned counsel appearing on behalf ofDthe appellant Rajaram, urged that the courts below fell into error in relyingon the dying declaration by the deceased, his wife. It was argued thatwhere a statement is made by a person as to the cause of her death oras to any of the circumstances of the transaction resulting in death, thatstatement would be admissible. It was argued that hence, allegationsEmade by the deceased against the accused, i.e., the appellant Rajaram,in her dying declaration would be inadmissible as they were not of thecircumstances of the transaction which resulted in her death.

6. It was next submitted that Dashrath Raikwar (P.W.1), thedeceased’s brother; Phool Chandra (P.W.2), the deceased’s father;FMayabai (P.W.3), the deceased’s sister; and Ramcharan (P.W.4) thedeceased’s brother-in-law did not support the prosecution version aboutcruelty inflicted upon her. In the circumstances, the appellant’s convictionis unsustainable.

7. Learned counsel also urged that the courts below fell into errorGin not giving weight to the significant contradictions between the so-called dying declarations, Ex. P-11 and Ex. P-26. It was submitted thatthe testimonies of PW-7, who recorded Ex. P-11 and PW-10, the doctor,are inconsistent and improbable with respect to the time attributable tothe document. Furthermore, the later declaration Ex. P-26 is suspicious;it was not recorded by securing clearance from any doctor about theHconscious state of the late Pushpa. Given the fact that all material witnesses who could have alleged cruelty, relating to dowry demands,except the appellant, were named in Ex. P-11, the inclusion of theappellant, in the later dying declaration (Ex. P-26) is untrustworthy. Theabsence of the doctor when the statement was recorded and the factthat the appellant was not named for the first dying declaration, but inthe second declaration renders both the dying declarations unbelievable.It was submitted that the High Court, in fact, discarded the second dyingdeclaration.

8. It was lastly urged on behalf of the appellant that since theprosecution could not prove the charge on the count under Section 304B,he could not have been convicted on the basis of the dying declaration,because Section 32 of the Evidence Act renders relevant only statementsrelating to the circumstances surrounding the death of the person makingit and that in the present case, the only dying declaration, Ex. P-11nowhere mentions any act of cruelty attributable to the appellant.

9. On behalf of the state, it was argued by Mr. Yashraj SinghBundela, learned counsel, that no interference with the concurrent findingsof the courts below is called for and that the appeal involves appreciationof evidence. As there is nothing that can be termed as perverse orunreasonable as regards these findings, which are based on the evidenceled, this court should not exercise its discretionary jurisdiction to upset orinterfere with the findings.

10. It was submitted that the fact that the witnesses turned hostilemay no doubt be a relevant aspect. Yet, this has to be weighed in withother factors, the most important being the dying declaration recordedas Ex. P-26. Counsel submitted that the first dying declaration, i.e., Ex.P-11 listed the actual perpetrators of the crime, which is those responsiblefor dousing the deceased with kerosene and setting her on fire, whereasEx. P-26 contained details of the cruelty meted out to her since she hada disability and had a girl child. These and the people who treated hercruelly, taunted her, and demanded dowry were all named. They includedthe appellant, her husband. There was close proximity between the firstand second statements. It was submitted that the absence of anyendorsement by a doctor about the mental condition, or fitness to recordthe statement, or that it was recorded by a policeman cannot ipso factoresult in its being ruled out.

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AAnalysis and Findings

11. As can be gathered from the factual discussion, the incident,i.e., setting of the deceased on fire, her subsequently being moved to thehospital, where two statements were recorded, one by the Naib Tehsildar,certified by the doctor, and the other, a statement recorded by the police,Bare crucial for consideration in this case. In the dying declaration, Ex.P-11 recorded by PW-7, after the victim was examined by the doctor,the deceased mentioned the circumstances surrounding the Incident,i.e., how she was burnt:

“I was sitting in the courtyard in the morning. Fighting wastaking place. My both elder sisters-in-law (Jethani) wereCfighting. There was big adi, had poured kerosene oil one fromit. My sisters-in-law (Jethani) Kiran and Shanti pouredkerosene oil upon me and set me on fire from the match stick.My elder mother-in law was seeing by standing just there. Mymother-in-law as not at home. My husband was out of theDhouse.”

Later, during the course of recording of the declaration, she alsostated:

“There are two Jeth, actually they are three Jeth, there aretwo mothers-in-law, the name of third Jethani is Sushila. SheEwas not at home at that time. She used to fight and beat upme. My younger son is 6-7 months old. All used to beat.Mother-in law also used to beat up me. All the three Jethsused to fight with me. They called me lame. They used todemand dowry from me.”

F12. The recording of Ex. P-11 started at 10:35 and ended at 10:50.The appellant sought to make out a contradiction between the statementof witnesses. However, this court is unpersuaded that such contradictionis material. From the evidence, it appears that the second statement Ex.P-26 was recorded later by PW-15, the Officer in charge. After statingthe circumstances under which the incident occurred-which wereGconsistent with the contents of Ex. P-11, the deceased further stated:

“…. I started burning and cried for saving me then they bothfled away by leaving me burnt, then Dukra, my elder father-in-law by coming saved me, he died out the fire by throwingwater on me. I have burnt up completely. Full clothes on myHbody have burnt. My face, breast, thigh, legs, hands have

completely burnt. I am feeling very much pain. Then myhusband and neighbouring persons have brought me to Ashoknagar for treatment. I had become unconscious at that time.My in-laws, husband, elder brothers-in-law Beeran, Hallealias Ramsingh, Praansingh alias Ramdayal, elder sisters-in-law Sushila, Kiranbai, Shantibai and mother in- law Kamlabaioften by taunting for dowry used to beat up me for dowrydemand. They used to tease me by calling lame. They used todemand rupees, motorcycle in dowry. These people had beatenup me last night also which I had told to my younger sisterMayabai over phone and that my condition is bad.”

13. Section 32 of the Evidence Act, which is material for thepurposes of this appeal, reads as under:

“32. Cases in which statement of relevant fact by person whois dead or cannot be found, etc., is relevant. — Statements,written or verbal, of relevant facts made by a person who isdead, or who cannot be found, or who has become incapableof giving evidence, or whose attendance cannot be procuredwithout an amount of delay or expense which under thecircumstances of the case appears to the Court unreasonable,are themselves relevant facts in the following cases: —

(1) When it relates to cause of death.—When the statement ismade by a person as to the cause of his death, or as to any ofthe circumstances of the transaction which resulted in hisdeath, in cases in which the cause of that person’s death comesinto question.

Such statements are relevant whether the person who madethem was or was not, at the time when they were made, underexpectation of death, and whatever may be the nature of theproceeding in which the cause of his death comes into question.

(2) Or is made in course of business.—When the statementwas made by such person in the ordinary course of business,and in particular when it consists of any entry or memorandummade by him in books kept in the ordinary course of business,or in the discharge of professional duty; or of anacknowledgment written or signed by him of the receipt ofmoney, goods, securities or property of any kind; or of a AB

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document used in commerce written or signed by him; or ofthe date of a letter or other document usually dated, writtenor signed by him.

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(3) Or against interest of maker.—When the statement is againstthe pecuniary or proprietary interest of the person makingit, or when, if true, it would expose him or would haveexposed him to a criminal prosecution or to a suit for damages.

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(4) Or gives opinion as to public right or custom, or mattersof general interest.—When the statement gives the opinion ofany such person, as to the existence of any public right orcustom or matter of public or general interest, of the existenceof which, if it existed, he would have been likely to be aware,and when such statement was made before any controversyas to such right, custom or matter had arisen.

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(5) Or relates to existence of relationship.—When the statementrelates to the existence of any relationship [by blood, marriageor adoption] between persons as to whose relationship [byblood, marriage or adoption] the person making the statementhad special means of knowledge, and when the statement wasmade before the question in dispute was raised.

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E(6) Or is made in will or deed relating to family affairs.—When the statement relates to the existence of any relationship[by blood, marriage or adoption] between persons deceased,and is made in any will or deed relating to the affairs of thefamily to which any such deceased person belonged, or inany family pedigree, or upon any tombstone, family portraitFor other thing on which such statements are usually made,and when such statement was made before the question indispute was raised.

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(7) Or in document relating to transaction mentioned inSection 13, clause (a).—When the statement is contained inany deed, will or other document which relates to any suchtransaction as is mentioned in Section 13, clause (a).

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(8) Or is made by several persons and expresses feelingsrelevant to matter in question.—When the statement was madeby a number of persons, and expressed feelings or impressionson their part relevant to the matter in question.”

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14. This court has considered the above provision in numerousdecisions and held that the weight and utility of a dying declaration dependupon the surrounding circumstances and the credibility which the courtattaches to it, having regard to the evidence led before it. Therefore,whether it is essential to have medical certification before the statementis recorded, who records it, etc. are all fact dependent, and nostereotypical approach can be adopted by courts. In Laxman vs. Stateof Maharashtra[1] a five-member Bench of this court explained the position,in law, as follows:

“A dying declaration can be oral or in writing and in anyadequate method of communication whether by words or bysigns or otherwise will suffice provided the indication ispositive and definite.

In most cases, however, such statements are made orally beforedeath ensues and is reduced to writing by someone like amagistrate or a doctor or a police officer. When it is recorded,no oath is necessary nor is the presence of a magistrate isabsolutely necessary, although to assure authenticity it is usualto call a magistrate, if available for recording the statementof a man about to die.

There is no requirement of law that a dying declaration mustnecessarily be made to a magistrate and when such statementis recorded by a magistrate there is no specified statutory formfor such recording. Consequently, what evidential value orweight has to be attached to such statement necessarilydepends on the facts and circumstances of each particularcase. What is essentially required is that the person who recordsa dying declaration must be satisfied that the deceased wasin a fit state of mind.

Where it is proved by the testimony of the magistrate that thedeclarant was fit to make the statement even withoutexamination by the doctor the declaration can be acted uponprovided the court ultimately holds the same to be voluntaryand truthful. A certification by the doctor is essentially a ruleof caution and therefore the voluntary and truthful nature ofthe declaration can be established otherwise.”

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A15. In a decision, Lakhan v. State of Madhya Pradesh,[2] this courtconsidered and indicated the approach which may be adopted, wherethe evidence includes multiple dying declarations, that may containinconsistent facts:

“In view of the above, the law on the issue of dying declarationBcan be summarised to the effect that in case the court comesto the conclusion that the dying declaration is true andreliable, has been recorded by a person at a time when thedeceased was fit physically and mentally to make thedeclaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recordingCconviction. In such an eventuality no corroboration isrequired. In case there are multiple dying declarations andthere are inconsistencies between them, generally, the dyingdeclaration recorded by the higher officer like a Magistratecan be relied upon, provided that there is no circumstanceDgiving rise to any suspicion about its truthfulness. In casethere are circumstances wherein the declaration had beenmade, not voluntarily and even otherwise, it is not supportedby the other evidence, the court has to scrutinise the facts ofan individual case very carefully and take a decision as towhich of the declarations is worth reliance.”E16. Recently, in Jagbir Singh v State of NCT Delhi,[3]this courtreviewed several previous decisions involving multiple dying declarationsand re-stated the law in these terms:

“30. A survey of the decisions would show that the principlesFcan be culled out as follows:

a. Conviction of a person can be made solely on the basisof a dying declaration which inspires confidence of thecourt;

b. If there is nothing suspicious about the declaration, noGcorroboration may be necessary;

c. No doubt, the court must be satisfied that there is notutoring or prompting; 2 2010 (9) SCR 705H3 (2019) 8 SCC 779

d. The court must also analyse and come to the conclusionthat imagination of the deceased was not at play in makingthe declaration. In this regard, the court must look to theentirety of the language of the dying declaration;

e. Considering material before it, both in the form of oraland documentary evidence, the court must be satisfied thatthe version is compatible with the reality and the truth ascan be gleaned from the facts established;

f. However, there may be cases where there are more than onedying declaration. If there are more than one dyingdeclaration, the dying declarations may entirely agree withone another. There may be dying declarations whereinconsistencies between the declarations emerge. The extentof the inconsistencies would then have to be considered bythe court. The inconsistencies may turn out to be reconciliable.

g. In such cases, where the inconsistencies go to some matterof detail or description but is incriminatory in nature as faras the Accused is concerned, the court would look to thematerial on record to conclude as to which dying declarationis to be relied on unless it be shown that they are unreliable;

h. The third category of cases is that where there are morethan one dying declaration and inconsistencies between thedeclarations are absolute and the dying declarations areirreconcilable being repugnant to one another. In a dyingdeclaration, the Accused may not be blamed at all and thecause of death may be placed at the doorstep of an unfortunateaccident. This may be followed up by another dyingdeclaration which is diametrically opposed to the first dyingdeclaration. In fact, in that scenario, it may not be a questionof an inconsistent dying declaration but a dying declarationwhich is completely opposed to the dying declaration whichis given earlier. There may be more than two.”

i. In the third scenario, what is the duty of the court? Shouldthe court, without looking into anything else, conclude thatin view of complete inconsistency, the second or the third dyingdeclaration which is relied on by the prosecution is demolishedby the earlier dying declaration or dying declarations or is it A

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the duty of the court to carefully attend to not only the dyingdeclarations but examine the rest of the materials in the formof evidence placed before the court and still conclude thatthe incriminatory dying declaration is capable of being reliedupon?”

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B17. In light of the above principles, it is necessary to consider theevidentiary value of the dying declaration, which was relied on by theprosecution to convict the appellant.

18. The trial court had relied upon the circumstances such as thepresence of kerosene, the nature of burn injuries on the deceased, theCarticles such as match box which smelt of kerosene, and a brokenmangalsutra, apart from two dying declarations (Ex. P-11 and Ex.P-26). The testimonies of the deceased’s relatives were not of muchconsequence as none of them supported the prosecution. The HighCourt, in its impugned judgment, accepted and relied upon the dyingdeclaration recorded by PW-7 (Ex. P-11), Naib Tehsildar Yasha Rai.DHowever, the High Court held that the second dying declaration recordedby the Officer-in-Charge, PW-15 – in the form of a statement, could notbe relied upon. The court was of the opinion that even though PW-15was not required to obtain fitness certificate from the doctor, yet in viewof the last line in the dying statement that her condition was bad, it wasEunsafe to rely on such a police statement. The High Court’s findingson this aspect are as follows:

“39. Before considering the submissions made by the Counselfor the Appellants, this Court would like to consider as towhether the police statement of the injured Pushpa, Ex. P.26is reliable or not?F

40. As already pointed out, S.K. Chaturvedi (P.W. 15), whohad recorded Police Statement of injured Pushpa, was notexamined after the re-arrest of Appellant Susheela Bai @Halki, and as evidence of S.K. Chaturvedi (P.W.15) wasGrecorded in absence of Susheela Bai @ Halki, therefore, hisevidence cannot be read either in favor or against theAppellant Susheela Bai @ Halki. Thus, there is only one dyingdeclaration, Ex. P.11 against the Appellant Susheela Bai @Halki.

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41. S.K. Chaturvedi (P.W.15) has stated that he had recordedthe statements of the witnesses including that of injured/deceased Pushpa. If the police statement of injured/deceasedPushpa is considered then at the end of the statement, it ismentioned that her condition is very bad. Therefore, it is notclear as to whether the injured/deceased Pushpa was in a fitstate of mind or not. Even otherwise, this witness has notclarified that on what date he had recorded the statement ofinjured/deceased Pushpa. It is true that while recording thepolice statement under Section 161 of Cr.P.C., this witnesswas not required to obtain the fitness certificate from the Doctor,but in view of the last line of her statement, that “ her conditionis very bad”, this Court is of the considered opinion, that itwould not be safe to rely on the Police Statement of the injured/deceased Pushpa, Ex. P.26.

42. Accordingly, the Police Statement of the injured/deceasedPushpa Bai, Ex.P.26 is hereby disbelieved.”

19. The principles enunciated by the decision of this court,especially Laxman and the decisions dealing with multiple dyingdeclarations, adduced in the course of a criminal trial, especially wherethe deceased had been a victim of burns and had succumbed to burninjuries and had prior to death made more than one dying declarationhave indicated that test of credibility having regard to the overall factson record, has to be adopted.

20. This court notices that the present is a case where the seconddying declaration has been rejected completely by the High Court. Inthese circumstances, the cumulative weight of evidence relied upon bythe High Court needs to be examined to ascertain whether the appellantis guilty of the offence he stands convicted for, i.e., Section 498A IPC.Ex. P-26, the second dying declaration is the only piece of evidencewhich names the appellant as one of the perpetrators of cruelty on thedeceased along with the other accused. Both the courts below havenoticed that in Ex. P-11, the first dying declaration, the appellant has notbeen named; rather he along with his father took the deceased in a criticallyinjured state to the hospital. Undoubtedly, the focus of the first dyingdeclaration is only upon the incident involving pouring of kerosene andsetting the deceased on fire. The second dying declaration, Ex. P-26alone elaborates acts of cruelty. That is the only piece of incriminating AB

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Aevidence against the accused. As far as the recovery of articles and thesmell of kerosene in the report considered by the court are concerned,they are circumstances relating to the incident of setting the deceasedon fire. They do not further the prosecution’s case under Section 498A asagainst the appellant.

B21. Having regard to the above circumstances, especially the factthat the only evidence against the appellant, i.e., Ex. P-26 was discreditedby the High Court, there is no other material to sustain his conviction. Forthese reasons, the impugned judgment and the appellant’s convictionand sentence are hereby set aside. The appeal is allowed but withoutany order as to costs.C

Ankit Gyan

(Assisted by : Rahul Rathi, LCRA)

Appeal allowed.

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