Sandeep and Anr. Vs State of Haryana
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1554 of 2014, Judgment Date: May 26, 2015
The incompatibility or inconsistency can be said to arise if the assertions
in one dying declaration are so diametrically opposed to the statements in
the other that both cannot stand together.
21. In view of the above, the law on the issue of dying declaration can
be summarised to the effect that in case the court comes to the conclusion
that the dying declaration is true and reliable, has been recorded by a
person at a time when the deceased was fit physically and mentally to make
the declaration and it has not been made under any
tutoring/duress/prompting; it [pic]can be the sole basis for recording
conviction. In such an eventuality no corroboration is required. In case
there are multiple dying declarations and there are inconsistencies between
them, generally, the dying declaration recorded by the higher officer like
a Magistrate can be relied upon, provided that there is no circumstance
giving rise to any suspicion about its truthfulness. In case there are
circumstances wherein the declaration had been made, not voluntarily and
even otherwise, it is not supported by the other evidence, the court has to
scrutinise the facts of an individual case very carefully and take a
decision as to which of the declarations is worth reliance.”
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1554 of 2014
Sandeep and Anr. …. Appellants
Versus
State of Haryana …. Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal by Special Leave by appellants, Sandeep and his mother
Krishna, challenges the judgment and order dated 18.09.2012 passed by the
High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. D-203-
DB/2008 affirming their conviction under Sections 304-B, 498A read with
Section 34 IPC.
2. The crime in the instant case was registered on the basis of
statement made by Sharmila, wife of appellant Sandeep, to Suresh Chand, ASI
at 6:15 p.m. on 2.11.2006. Her statement Ext. P-13 was to the following
effect:-
“Stated that I am resident of aforesaid address. I was married to Sandeep
S/o Rajbir @Raja Jat by caste r/o Ghikara on 21.05.2005. After some days of
the marriage I was kept properly and there after they started harassing me
and saying that less dowry is brought. My husband, my mother-in-law,
Krishna father-in-law Rajbir and Nanad Urmila started taunting and my
husband and mother-in-law used to beat me. I told about it to my mother
Parasi Devi and brothers. Surender S/o Brij Mohan and Anand Kumar S/o Brij
Mohan. At this my brothers brought Panchayat from Village Chelawas twice,
upon which on the asking of the village my husband Sandeep brought me from
my parental house on 23.10.2006. Yesterday dt. 01.11.2006 during night at
about 9:00p.m. my husband, mother-in-law Krishna father-in-law Rajbir all
gave me slap and fist blows which I tolerated. Today morning at about 8:30
a.m. my mother-in-law Krishna sprinkled kerosene oil upon me and my husband
Sandeep set me with fire with a match box. My husband, mother-in-law,
father-in-law ran away from the spot when I raised noise, our neighbours
Lily s/o Harnath, Risalo W/o Lilu came there and got me admitted to Dadri
Hospital from where I have been referred to Rohtak. Now I have got recorded
my statement to you. My husband Sandeep, mother-in-law Krishna, and father-
in-law Rajbir after sprinkling oil have set me on fire with an intention to
finish me. Now I have got recorded my statement, heard it and the same is
correct.”
Soon after the incident while Sharmila was being removed to the hospital by
Lilu and Risalo appellant Sandeep joined them. She was taken to General
Hospital Charkhi Dadri where PW 7 Dr. Anita Gulia medically examined her
and found percentage of burns to be 85%. According to PW 7, Sharmila had
not told her who had set Sharmila afire. Sharmila was thereafter referred
to and admitted at PGIMS Rohtak, where the aforesaid statement was
recorded, pursuant to which FIR Ext. P-14 was lodged and the crime was
registered under Sections 307, 498-A and 34 IPC.
4. On 3.11.2006 at about 4:30 a.m. PW 2 Shri Vimal Sapra Judicial
Magistrate Rohtak, on receipt of police request Ext. P04 went to PGIMS
Rohtak to record the statement of Sharmila. Before recording the statement,
the witness vide Ext. P-8 had obtained the opinion of the doctor as regards
her fitness. The witness thereafter proceeded to record the statement and
the doctor was present all throughout the recording. Thereafter the
concerned doctor put the endorsement Ext. P-9 “patient remained fit during
the statement. In my presence”. The statement Ext. P-6 so recorded was to
the following effect:
“Statement of Sharmila w/o Sandeep, 18 years, Housewife, R/o Chelawas
Stated that I was married to Sandeep about 2 years ago. I have no issue.
There are my husband and parents-in-law in my house. They all used to
harass me for bringing less dowry. My husband used to say that Motor Cycle
is not brought and she sould bring the same. Yesterday i.e. 02.1.2006 at
about 8:30/9:00 a.m. I had gone to fields my mother-in-law and husband were
at home. Fight took place between them on some matter. When I returned,
they were fighting. Then my mother-in-law poured oil upon me and my husband
lit the fire with a match box. At that time my father-in-law was not
present at house. My Tai mother-in-law took me to the hospital. After the
marriage my husband, mother-in-law, father-in-law were raising the demand
of motor cycle and Rs. 50,000/-. I am giving this statement with my own
free will.
RO &AC Sd/- in English
RTI of Sharmila D/JMIC, Rohtak dt. 03.11.06”
5. Sharmila died on 07.11.2006. The appellants along with Rajbir,
father of appellant Sandeep were tried for having committed the offence
under Sections 304-B, 498-A read with Section 34 IPC in the court of
Sessions Judge, Bhiwani. In support of its case the prosecution examined
10 witnesses including the Judicial Magistrate as PW2, the brothers of
Sharmila as PW 6 and PW 9 and the Investigating Officer ASI Suresh Chand as
PW 10. The defence also examined six witnesses including Lok Ram and
Risalo as DWs 3 and 4 respectively who had arrived at the scene of
occurrence soon after the incident. PW 9 Anand stated about demands of
dowry and that her in-laws were not ready to accept Sharmila in their house
unless she had brought a golden chain, motorcycle and Rs. 50000/- in cash.
He further stated that panchayats on few occasions were called and that on
23.10.2006 Sharmila was sent to her matrimonial house due to such
Panchayat. It came out in his cross examination that Sharmila was residing
at her parental house few months before 23.10.06 and that though the demand
for dowry was existing the accused had agreed to keep Sharmila in the
matrimonial home.
6. The Trial Court found that the prosecution had proved its case
against the appellants but gave benefit of doubt to accused Rajbir and
acquitted him of all the offences. The trial court principally relied on
both the dying declarations i.e. Ext. P-13 recorded by PW 10 and Ext. P-6
recorded by PW 2. The trial court sentenced the appellants to undergo life
imprisonment and to pay fine of Rs. 10000/- each for the offence punishable
under Section 304-B read with Section 34 IPC and in default of payment of
fine to undergo further rigorous imprisonment of two years. It also
sentenced the appellants to undergo rigorous imprisonment for two years and
to pay fine of Rs. 5000/-, in default whereof to undergo further rigorous
imprisonment for six months under Section 498-A read with Section 34 IPC.
The appellants carried the matter further by filing Criminal Appeal before
the High Court. The High Court affirmed the order of conviction but
reduced the sentence under Section 304-B read with Section 34 IPC to ten
years and set aside the sentence of fine under said count. It maintained
the sentence imposed under Section 498A read with Section 34 IPC. With such
modification in sentence, the appeals preferred by the appellants were
dismissed which view is presently under challenge.
Mr. Rishi Malhotra learned Advocate appearing for the appellants submitted
that :-
(i) The conviction in the present case rested solely on two dying
declarations, which were not consistent with each other (ii) That there
were loopholes in the dying declarations rendering them unworthy of
reliance (iii) The Doctor who had given the certificate of fitness to
record such dying declaration was not examined at all (iv) That given the
fact that Sharmila had suffered 85% to 90% burns it would be impossible for
her to have given such statements (v) At the first available opportunity
said Sharmila had not stated anything regarding the incident or the
involvement of the appellant before PW 7 (vi) The evidence as regards
alleged demand for dowry was absolutely scanty. PW 6, brother of the
deceased did not speak about any such demand while the testimony of the
other brother ie. PW 9 was without any details or particulars (vii) The
incident in question was an accident as stated by appellant Sandeep in his
statement under Section 313 Cr. P.C.
8. Dr. Monika Gusain learned advocate appearing for the State submitted
that both the dying declarations were consistent as regards the involvement
of the present appellants, that dying declaration Ext. P-6 recorded by the
Judicial Magistrate in the presence of the Doctor and with requisite
certification from the Doctor was entitled to be given absolute credence,
that the dying declarations Ext. P-13 and P-6 themselves stated about the
demands for dowry and inability to fulfill such demands being the reason
why she was set afire which was fully supported by the testimony of PW9 and
that the assessment made by both the Courts below holding the appellants
guilty of the offences was absolutely correct and justified.
9. The status and importance of a dying declaration was summed up by
this Court in Kundu Bala Subramaniyam Vs. State of Andhra Pradesh[1] in
following words :-
“..A dying declaration made by person on the verge of his death has a
special sanctity as at that solemn moment, a person is most unlikely to
make any untrue statement. The shadow of impending death is by itself the
guarantee of the truth of the statement made by the deceased regarding the
causes or circumstances leading to his death. A dying declaration,
therefore, enjoys almost a sacrosanct status, as a piece of evidence,
coming as it does from the mouth of the deceased victim. Once the statement
of the dying person and the evidence of the witnesses testifying to the
same passes the test of careful scrutiny of the courts, it becomes a very
important and a reliable piece of evidence and if the court is satisfied
that the dying declaration is true and free from any embellishment such a
dying declaration, by itself, can be sufficient for recording conviction
even without looking for any corroboration…..”
In the very same case, this Court struck a note of caution in cases where
there are more than one dying declarations. It was observed as under:-
“….If there are more than one dying declarations then the court has also to
scrutinise all the dying declarations to find out if each one of these
passes the test of being trustworthy. The Court must further find out
whether the different dying declarations are consistent with each other in
material particulars before accepting and relying upon the same….”
In the light of the aforesaid principle, it needs to be seen if both the
dying declarations are consistent with each other in material particulars.
The analysis of these dying declarations shows following consistent
assertions:
(a) Sharmila was being harassed by her husband and in-laws for bringing
less dowry. (b) On 02.01.2006 at about 8:30 a.m. her mother-in-law poured
Kerosene oil upon her (c) Her husband Sandeep lit the fire with a match box
and (d) Risalo i.e. her Tai mother in law took her to the hospital.
11. Both the dying declarations i.e. Exts. P-13 and P-6, on these
material particulars are completely consistent. There appear to be certain
additional features in the statement Exh. P-13 recorded by PW 10 to the
following effect:-
(i) Sharmila had told about her harassment to her mother Patasi Devi and
brothers (ii) At this her brothers had brought Panchayat twice (iii) On the
asking of such Panchayat her husband Sandeep had brought her from her
parental house on 23.10.2006. (iv) On the previous night at about 9:00 p.m.
her husband and parents in law had beaten her, and (v) Soon after the
incident her husband and parents in law had run away from the spot.
12. It is no doubt true that the aforesaid features do not figure in the
dying declaration Ext. P-6 recorded by the Judicial Magistrate. However
such non mention does not make both the dying declarations incompatible.
The incompatibility or inconsistency can be said to arise if the assertions
in one dying declaration are so diametrically opposed to the statements in
the other that both cannot stand together. Such is not the case in the
present matter. At best it could be said that the aforesaid features of the
matter were additionally spelt out in the statement Ext. P-13 given to the
police. The incompatibility in the dying declarations Ext. P-13 and P-6
however is quite eloquent when it comes to the allegations against Rajbir,
father in law. Though he was definitely ascribed a particular role in the
statement Ext. P-13 given to the police, the declaration Ext. P-6 however
specifically recorded that he was not present at all. The assertions being
diametrically opposed would certainly make allegation against said Rajbir
completely inconsistent. The Courts below were therefore perfectly
justified in granting benefit of doubt to Rajbir. However as regards the
role ascribed to the appellants there is no inconsistency or incompatibly
in the dying declarations.
13. It may be useful at this juncture to quote the observations of this
court in Lakhan Versus State of Madhya Pradesh[2] which are as follows:-
“12. A dying declaration recorded by a competent Magistrate would stand on
a much higher footing than the declaration recorded by officer of lower
rank, for the reason that the competent Magistrate has no axe to grind
against the person named in the dying declaration of the victim, however,
circumstances showing anything to the contrary should not be there in the
facts of the case. (Vide Ravi Chander v. State of Punjab, Harjit Kaur v.
State of Punjab, Koli Chunilal Savji v. State of Gujarat and Vikas v. State
of Maharashtra).
…………..
21. In view of the above, the law on the issue of dying declaration can
be summarised to the effect that in case the court comes to the conclusion
that the dying declaration is true and reliable, has been recorded by a
person at a time when the deceased was fit physically and mentally to make
the declaration and it has not been made under any
tutoring/duress/prompting; it [pic]can be the sole basis for recording
conviction. In such an eventuality no corroboration is required. In case
there are multiple dying declarations and there are inconsistencies between
them, generally, the dying declaration recorded by the higher officer like
a Magistrate can be relied upon, provided that there is no circumstance
giving rise to any suspicion about its truthfulness. In case there are
circumstances wherein the declaration had been made, not voluntarily and
even otherwise, it is not supported by the other evidence, the court has to
scrutinise the facts of an individual case very carefully and take a
decision as to which of the declarations is worth reliance.”
14. In the present case the dying declaration Ext. P-6 recorded by the
Judicial Magistrate was in the presence of a doctor who had certified about
the fitness of Sharmila before and after recording of such statement. There
was not even a suggestion in the cross examination of the Judicial
Magistrate that any of the relations of Sharmila were present when such
statement was recorded nor is there any circumstance which could cast a
doubt about the genuineness of Ext. P-6 as recorded by the Judicial
Magistrate. Further the certification by the doctor was also not put in
challenge. Though statement Ext.P-13 recorded by PW10 completely satisfies
the requirements, in the light of the law laid down by this Court in Lakhan
Vs. State of Madhya Pradesh (supra) dying declaration Ext.P-6 as recorded
by the Judicial Magistrate would certainly stand on a higher footing and we
have no hesitation in placing intrinsic reliance thereon. We must add
that we find no inconsistency between the statement Ext. P-13 recorded by
PW10 on one hand and the dying declaration Ext. P-6 recorded by the
Judicial Magistrate on the other as regards the involvement of the
appellants.
15. It is true that PW-7 was the first Medical Officer to see Sharmila
and according to the witness, Sharmila had not told her who had set
Sharmila afire. However the fact remains that Sharmila was brought to the
hospital by her husband appellant Sandeep and she was not given any
extensive treatment in said hospital but was immediately referred to PGIMS
Rohtak. In the circumstances it is possible that the victim did not have
the occasion to disclose as to who had set her afire. The other criticism
that there was no evidence to suggest that Sharmila was harassed for
demands of dowry is also incorrect. Said fact finds clear mention in the
statement Ext. P-13 recorded by the police as well as the dying declaration
Ext.P-6 recorded by the Judicial Magistrate and finds further corroboration
in the testimony of PW-9, brother of deceased Sharmila. We therefore reject
the submissions of Mr. Malhotra.
16. In our considered view, the conviction of the appellants is
absolutely correct and justified. We therefore affirm the order of
conviction and sentence as passed by the High Court and dismiss this
appeal. The appellants shall serve out the sentence as awarded.
………………………..J.
(A.K. Sikri)
………………………..J.
(Uday Umesh Lalit)
New Delhi,
May 26, 2015
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[1]
1993(2) SCC 684
[2] 2010 (8) SCC 514
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