Puran Chand vs State Of Haryana

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1818 OF 2009

Puran Chand ... Appellant

Versus

State of Haryana ... Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. The judgment of the High Court confirming the conviction and

sentence for the offences under Section 302 read with Section 34, Indian

Penal Code is in challenge in this appeal. Originally, there were three

accused persons, namely, Gurdial (accused No.1), Puran Chand (accused

No.2), the present appellant and Rajo Devi (accused No.3). However,

accused No.3, Rajo Devi was acquitted by the High Court and accused

No.1, Gurdial has not chosen to file an appeal. It is only Puran Chand

(accused No.2) who is in appeal before us.

2. Gurdial got married to one Santosh on 08.12.1997. According to the

prosecution, she was harassed for dowry just after one week of the 2

marriage and was set to fire on the fateful day i.e. on 15.12.1997 by as

many as three accused persons, they being, Gurdial, her husband, Puran

Chand, her elder brother-in-law and Rajo Devi, the paternal aunt of

accused No.1, Gurdial. The incident took place at about 4 a.m. in the

morning. According to the prosecution, accused No.1 and accused No.2

sprinkled Kerosene Oil and in this conspiracy even Rajo Devi (accused

No.3) was a party. All this was done on account of the less dowry received

in the marriage which had taken place hardly a week earlier to the incident.

Santosh was taken to the General Hospital, Sector-13, Chandigarh by

Pawan Kumar, PW-4 and ultimately she breathed her last in the evening

on the same day. It was found that she had suffered 90 per cent of burns

but before that her dying declaration was got recorded by PW-13, Shri A.K.

Bishnoi. According to the prosecution, before recording this dying

declaration, an opinion was taken about her fitness by Dr. Siri Niwas, PW-

14. The said dying declaration is Ex.P.F/3 and the medical certificate is

Ex.P.F/5. Fourteen witnesses were examined at the trial including her

relations, investigating team, Magistrate and the Doctor. The Trial Court

convicted all the three accused persons. However, the High Court

acquitted Rajo Devi, giving her the benefit of doubt and that is how

accused No.2, Puran Chand has come up before us challenging his

conviction.

3

3. The defence was that of denial and it was stated to be an accident.

It was also stated by the present appellant that he was staying separate

from his brother Gurdial and had unnecessarily been implicated. Three

defence witnesses were also examined.

4. The defence did not prevail and that is how accused No.2 is before

us.

5. The main thrust of the argument of the Learned Counsel was

against the dying declaration. It was claimed that the dying declaration

was tutored one. Learned Counsel earnestly argued that there were some

intrinsic defects in the dying declaration which militated against its

credibility. It was pointed out that, firstly, the name of Puran Chand, the

present appellant was not to be found in the dying declaration and there

was a mere reference to the Jeth (elder brother of the husband). It was

suggested by the Learned Counsel that there was one more brother of

accused No.1, Gurdial and it was not certain as to whether the deceased

referred to accused No.2, Puran Chand. It was then pointed out that

Santosh, the deceased had suffered 90 per cent of burns and, therefore, it

was not possible that she would be in her senses while making the dying

declaration. Lastly, it was pointed out that there was no Kerosene Oil

residues found on the clothes which were seized. It was also suggested

further that the evidence of Mohan Lal (PW-5), Chand Kiran (PW-10) and 4

Mam Chand (PW-8), who claimed that an oral dying declaration was made

to them, was also not reliable in view of the evidence of PW-4, Pawan

Kumar who had stated that no such oral dying declaration was made by

Santosh.

6. We will first examine the claim regarding the oral dying declaration.

It has come in the evidence that after Santosh got burnt, she was reached

to the Yamuna Nagar Hospital. The information of the burning was given

by PW-4, Pawan Kumar to PW-5, Mohan Lal in the morning itself on which

both went to the Hospital. According to Mohan Lal (PW-5), he was told

orally by Santosh that she was burnt by the two accused persons while

accused No.3, Rajo Devi held her hands. The Trial Court has disbelieved

this part of the evidence of Mohan Lal (PW-5) about the participation of

accused No.3, Rajo Devi. However, the rest of the testimony about the

participation of accused No.1, Gurdial and accused No.2, Puran Chand

has been believed by the Trial Court. It is to be noted that at the time she

made oral dying declaration, she did not merely refer to Puran Chand as

Jeth but had specifically taken his name.

7. We have closely examined the evidence of PW-5, Mohan Lal. The

evidence of Mohan Lal (PW-5) has been corroborated by Mam Chand

(PW-8) who is another witness who was present at the time of seizure of

material objects at the spot, which, according to him, were smelling of 5

kerosene. This witness has not stated anything about any dying

declaration in his examination-in-chief but, strangely enough, it was

brought in his cross-examination by the defence that he reached the Post

Graduate Institute at about 3 p.m. He also referred to a dialogue between

Chand Kiran and Santosh wherein Santosh told her father that she was

burnt by her brother-in-law and her husband. This witness has referred to

the active advice having been given by her Phupha Saas, meaning sister

of her father-in-law. He also asserted that Gurdial and Puran Chand were

not present at the Post Graduate Institute at that time. It is extremely

strange that such material things should have been brought on record in

cross-examination.

8. The last witness in this line is Chand Kiran (PW-10), the father of

Santosh who had spoken about the oral dying declaration made to him by

Santosh involving all the three accused persons. He had also referred to

the evidence of Mam Chand, who was the brother-in-law and had claimed

that his daughter told him that she was burnt by her husband Gurdial and

her Jeth, Puran Chand at the instance of Rajo Devi. Nothing has been

brought in the cross-examination of this witness. The evidence of these

three witnesses is complimentary to each other and, thus, is more

acceptable in comparison to the evidence of Pawan Kumar (PW-4).

Ordinarily, though the oral dying declaration is an extremely weak type of 6

evidence, it would not be unnatural for a burnt woman, to confide in her

near relations like her cousin, Mohan Lal (PW-5), father Chand Kiran (PW-

1) and Mam Chand (PW-8) who is also a near relation. Santosh would

rather be keen to express herself regarding the cause of her death. Had

the prosecution relied only on the oral dying declaration, things could have

been different. However, there is a dying declaration, Ex. P.F/3, which is

recorded by a Judicial Magistrate, First class and that will have to be

critically examined in this case.

9. Learned counsel appearing on behalf of the defence, firstly, pointed

out that the written dying declaration did not mention accused No.2 by his

name. Even accused No.3, Rajo Devi was referred as `Bua'. It was also

pleaded that there was another brother named Chandiram and, therefore,

the benefit of doubt, on account of this, must go to accused No.2, Puran

Chand. The evidence of Dr. Satbir Singh (PW-9), who was the post-

mortem doctor and who examined Santosh, has referred to superficial to

deep burns on various parts of her body. He has also asserted that the

superficial to deep burns were about 90 per cent and they were sufficient

to cause her death in the ordinary course of nature. However, Dr. Siri

Niwas (PW-14), was the most material witness who examined Santosh

and had given a certificate that Santosh was in a fit mental state to give the

statement. He had also endorsed at the end of the dying declaration that 7

she was conscious and was in the fit state of mind while giving her

statement. He has been cross-examined in details without any

breakthrough. Therefore, it cannot be said that Santosh was not in a fit

state of mind while making her statement.

10. What impresses us most about the dying declaration is that, firstly, it

has been recorded by an independent witness like Shri A.K. Bishnoi who

was working as a Judicial Magistrate, First Class, and secondly, before it

commenced, the Magistrate had satisfied himself about the ability of

Santosh to make a dying declaration. There is an endorsement obtained

of Dr. Siri Niwas. The said dying declaration is in the question & answer

form and we do not see any suggestive questions having been put

excepting question No.4 which is to the effect "is anyone else responsible

for this incident?". However, it must be said that this question was more

with an idea to seek more information which could have been legitimately

put. This is apart from the fact that the Courts below ultimately gave the

benefit of doubt to accused No.3, Rajo Devi. What impresses us is that in

the dying declaration, Santosh specifically exonerated her mother-in-law

and the father-in-law by saying that they treated her well. A feeble

argument was raised that the accused was a Tailor, yet, his occupation

was stated to be a Teacher by Santosh. There is a simple explanation that

usually a tailor is called Tailor Master. It may be that the same expression 8

might have been used by Santosh. Even elsewhere in the record of this

case such expression seems to have been used. The confusion might

have been created because of the use of the word "master". Even at the

end of the dying declaration, a further endorsement was made by Dr. Siri

Niwas certifying that, firstly, the witness was conscious all through the time

when her statement was being recorded and, secondly, that no relatives of

her were present at that time, which was also countersigned by the

Magistrate who recorded the statement. At the instance of the defence

counsel, we have ourselves seen the original dying declaration as also the

First Information Report based on the same. In our opinion, the dying

declaration was not only voluntary but truthful also and, hence, it could be

relied upon as was done by the Trial Court and the Appellate Court.

11. The Courts below have to be extremely careful when they deal with

a dying declaration as the maker thereof is not available for the cross-

examination which poses a great difficulty to the accused person. A

mechanical approach in relying upon a dying declaration just because it is

there is extremely dangerous. The Court has to examine a dying

declaration scrupulously with a microscopic eye to find out whether the

dying declaration is voluntary, truthful, made in a conscious state of mind

and without being influenced by the relatives present or by the

investigating agency who may be interested in the success of investigation 9

or which may be negligent while recording the dying declaration. Number

of times, a young girl or a wife who makes the dying declaration could be

under the impression that she would lead a peaceful, congenial, happy and

blissful married life only with her husband and, therefore, has tendency to

implicate the inconvenient parents-in-law or other relatives. Number of

times the relatives influence the investigating agency and bring about a

dying declaration. The dying declarations recorded by the investigating

agencies have to be very scrupulously examined and the Court must

remain alive to all the attendant circumstances at the time when the dying

declaration comes into being. When there are more than one dying

declarations, the intrinsic contradictions in those dying declarations are

extremely important. It cannot be that a dying declaration which supports

the prosecution alone can be accepted while the other innocuous dying

declarations have to be rejected. Such trend will be extremely dangerous.

However, the Courts below are fully entitled to act on the dying

declarations and make them the basis of conviction, where the dying

declarations pass all the above tests.

12. Again, it is extremely difficult to reject a dying declaration merely

because there are few factual errors committed. The Court has to weigh

all the attendant circumstances and come to the independent finding

whether the dying declaration was properly recorded and whether it was 10

voluntary and truthful. Once the Court is convinced that the dying

declaration is so recorded, it may be acted upon and can be made a basis

of conviction. The Courts must bear in mind that each criminal trial is an

individual aspect. It may differ from the other trials in some or the other

respect and, therefore, a mechanical approach to the law of dying

declaration has to be shunned. We have tested the dying declaration with

all these factors in mind and we are satisfied that even the Trial Court and

the Appellate Court have fully satisfied themselves in respect of the

acceptability of this dying declaration.

13. The law is now well settled that a dying declaration which has been

found to be voluntary and truthful and which is free from any doubts can be

the sole basis for convicting the accused. This Court in Sham Shankar

Kankaria v. State of Maharashtra [(2006) 13 SCC 165] has taken stock

of the following cases where the principles governing dying declaration

have been laid down:

i) Paniben v. State of Gujarat [(1992) 2 SCC 474;

ii) Munnu Raja v. State of M.P. [(1976) 3 SCC 104;

iii) State of U.P. v. Ram Sagar Yadav [1985] 1 SCC 552;

iv) Ramawati Devi v. State of Bihar [(1983) 1 SCC 211

v) K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC

618] 11

vi) Rasheed Beg v. State of M.P. [(1974) 4 SCC 264;

vii) Kake Singh v. State of M.P. [(1981) supp. SCC 25;

viii) Ram Manorath v. State of U.P. [(1981) 2 SCC 654;

ix) State of Maharashtra vs. Krishnamurti Laxmipati Naidu [(1980)

Supp. SCC 455;

x) Surajdeo Ojha v. State of Bihar [(1980) Supp SCC 769]

xi) Nanhau Ram v. State of M.P. [(1988) Supp. SCC 152

xii) State of U.P. v. Madan Mohan [(1989) 3 SCC 390;

xiii) Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1

SCC 700]

In para 12 of the abovesaid judgment, this Court has held that dying

declaration is the only piece of untested evidence and must like any other

evidence, satisfy the court that what is stated therein is the unalloyed truth

and that it is absolutely safe to act upon it. This Court has further

reiterated that 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 a basis of conviction, even if there is no corroboration. In that behalf, this

Court has referred the reported cases of Gangotri Singh v. State of U.P.

[(1993) Supp (1) SCC 327]; Goverdhan Raoji Ghyare v. State of

Maharashtra [(1993) Supp (4) SCC 316]; Meesala Ramakrishan v. 12

State of A.P. [(1994) 4 SCC 182]; and State of Rajasthan v. Kishore

[(1996) 8 SCC 217]. We are in respectful agreement with the law laid

down and would hasten to add that in the present case the dying

declaration of Santosh passes all the tests referred to by us above.

14. Lastly, a point was raised by the learned defence counsel that on the

half burnt clothes of Santosh, there were no traces of kerosene and,

therefore, the whole story of burning her by pouring kerosene on her body

has to be disbelieved. It is to be seen that the seizure of these clothes was

proved by Mam Chand (PW-8). He spoke about the seizure of an empty

can, smelling of kerosene oil, a match box with 4 or 5 burn match sticks, a

quilted bed (probably meaning `mattress'), smelling of kerosene from it

which was semi burnt and some sample of soil. According to him, they

were packed in the parcels separately and sealed. On this backdrop,

when the recovery memo is seen, it mentions one empty tin box, match

box, two burnt match sticks, earth which was put in plastic Dibbi, clothing

of the deceased Santosh of light blue colour, bed sheet (Bichhona) with

marks of fresh burns. The witness, however, has not referred in his

Examination-in-Chief to the cloth parcel (Exhibit 4) with some partially

burnt pieces of clothes. The FSL report suggests that kerosene residues

were detected in Exhibit 5, which was a plastic bag containing a partially

burnt coloured check cotton gadda, It clearly suggests that no kerosene 13

residues could be detected on Exhibits 1, 2, 3, 4 or 6. From this, the

learned counsel urged that particularly, the parcel Nos. 1, 3 and 4 were

bound to carry kerosene residues if the prosecution story was truthful.

However, it is to be seen that the mattress did have kerosene residues.

While this incident has taken place on 15.12.1997, parcels seems to have

been sent only on 29.12.1997 i.e. after about 14 days of the incident,

which reached the FSL Laboratory on 31.12.1997. The FSL report bears a

date 5.6.1998. There is thus the possibility of the articles losing the

kerosene residues due to the long interval of time, yet it has to be noted

that the mattress which undoubtedly a thick material, did have the

kerosene residues. Ordinarily, there was no reason for the mattress

having the kerosene residues unless kerosene was poured on the same.

It is again to be noted that even the plastic container, containing kerosene,

was also found not having any kerosene traces. Therefore, this

circumstance will not help the accused as some kerosene traces have

been found on the mattress where Santosh was sleeping. Even if we

ignore this circumstance, the fact of the matter is that the dying declaration

has been found by us to be voluntarily truthful and unblemished. That

would clinch the issue against the accused.

14

15. The appreciation by the Trial Court and the Appellate Court on the

overall circumstances and their finding of conviction is correct. The appeal

has no merits and it deserves to be dismissed. It is accordingly dismissed.

........................................J. [V.S. Sirpurkar]

.......................................J. [Dr. Mukundakam Sharma]

New Delhi;

May 13, 2010.