Sharda vs State Of Rajasthan

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.699 OF 2008

Sharda ....Appellant

Versus

State of Rajasthan ....Respondent

J U D G M E N T

Deepak Verma, J.

1. The solitary question that arises for

consideration in this appeal is whether any one of the

three dying declarations of deceased Sarla, inspires

confidence, to sustain conviction of appellant Sharda,

her mother-in-law for commission of offence under

Section 302 of the I.P.C and sentence of life

imprisonment.

2. Appellant has been found guilty of commission of

offence under Section 302 of the IPC and has been

awarded life imprisonment by learned Additional

District and Sessions Judge, Dungarpur. On D.B.

Criminal Appeal No. 1071/2003 being filed by her in the

High Court of Judicature for Rajasthan at Jodhpur, Crl.A.No. 699/08 2

the same has been dismissed vide order dated 25.7.2007.

Thus Judgment of conviction and sentence awarded by the

Trial court has been affirmed. Hence, this appeal after

grant of leave to the appellant.

3. Thumb-nail sketch of the facts of the case is as

mentioned herein below:-

Vinod Vyas was married to Sarla on 21.1.1991,

almost 8 years prior to the date of occurrence, which

had taken place on 16.8.1999 at the matrimonial home of

the deceased.

4. According to the prosecution story, for past two-

three years, relations between deceased Sarla, her

husband-Vinod and appellant-Sharda were strained. They

used to demand dowry from her which she was not able to

accede to. On 16.8.1999, deceased Sarla was alleged to

have been set on fire by her mother-in-law while she

was cooking food on a kerosene stove as a result of

which she had sustained 90% burn injuries. She was

immediately rushed to General Hospital, Sagwara.

5. On getting the aforementioned information on

16.8.1999, P.W-22 Kishore Singh posted as ASI at the

Police Station Sagwara rushed to the General Hospital. Crl.A.No. 699/08 3

He reached there at about 9 O'clock at night. In the

presence of PW-31 Dr. Gokul Prajapati, her first

statement Exh. D-3 was recorded.

6. As per this first statement, Sarla disclosed that

while cooking meals for the family, she pumped in air

in the kerosene stove, which got inflamed thereby pallu

of her saree caught fire. Thus she sustained burn

injuries on her person. She further stated that no one

had deliberately or intentionally put her on fire.

Exh. D.3 is her first statement recorded at the

hospital, in presence of P.W-31 Dr. Gokul Prajapati,

who had put his signatures on the same along with P.W-

22 Kishore Singh. Thumb impression of deceased was

also taken on it.

7. P.W-20 -Ranjit Singh was posted as S.I at the

Police Station, Varda on the date of incident i.e.

16.8.1999. On receiving the information that Sarla has

sustained burn injuries in her matrimonial home, he

went to the hospital where Sarla was admitted.

However, before going to the hospital, he contacted SDM

in his house, so that he could also be taken there for

the purpose of recording her statement but was informed Crl.A.No. 699/08 4

by SDM that he was not well, thus would not be in a

position to go with him.

8. P.W-20 Ranjit Singh, after reaching hospital

recorded another statement of deceased Sarla on the

said date marked as Exh P-3. In the said statement,

she reiterated that she had sustained burn injuries,

while she was trying to extinguish burning stove, after

cooking meals, which got inflamed and her Saree caught

fire. Exh. P-3 bears signatures of Dr. Ravindra Mehta

(not examined by prosecution), P.W-2 Ganesh Lal and

P.W-20 Ranjit Singh besides the thumb impression of

deceased Sarla. This was her second statement in point

of time recorded in the Hospital.

9. Since the condition of Sarla had deteriorated, she

was referred to Civil Hospital, Ahmedabad. She was

accordingly taken there for better treatment. However,

she died at Ahmedabad on 19.08.1999.

10. P.W-3 Purushottam, cousin of the deceased had

submitted an application on 19.8.1999, on behalf of her

grand-father PW-2 Ganeshlal to the Dy. Superintendent

of Police, Sagwara stating that on the night of Monday,

16.8.1999 Sarla had been set on fire by her husband Crl.A.No. 699/08 5

Vinod and mother-in-law Sharda. This set the

investigating agency into motion in registering a case

against them initially under Section 498-A and 307/34

of the IPC.

11. As per prosecution, before her death, one more

dying declaration was recorded by P.W-23 Suresh Chandra

Dixit, Executive Magistrate, Ahmedabad, marked as Exh.

P-18. This is in question - answer form. In the said

last statement, for the first time, she alleged that

kerosene was poured on her by her mother-in-law, the

present appellant Sharda and she was set on fire by

lighting a match-stick. She suffered burn injuries on

account of her mother-in-law. When she cried for help,

her father-in-law came downstairs and along with other

neighbours, tried to extinguish the fire. She was

carried to hospital by her father-in-law for treatment.

Thus, this would be her third statement at the Hospital

at Ahmedabad.

12. As mentioned hereinabove, initially on the report

being filed at the instance of P.W-2 Ganesh Lal,

offence was registered against Sharda under Section

498-A, 307/34 IPC and against her husband Vinod and Crl.A.No. 699/08 6

four other relatives only under Section 498-A of the

IPC. However, after her death, charge sheet was filed

against appellant under Section 302 of the IPC and

against others under Section 498-A/34 of the IPC.

Obviously, after her death, all the three statements of

the deceased Sarla, Exh. D-3, Ex. P-3 and Exh. P-18

would be treated as her dying declarations.

13. To bring home the charges levelled against the

accused, prosecution has examined, in all, 31

witnesses. In defence, no witness was examined by the

appellant. On appreciation of evidence available on

record, as mentioned hereinabove, the trial court

recorded the finding of `not guilty' against other

accused including husband of the deceased and they were

acquitted but appellant was found guilty of commission

of offence under Section 302 of the IPC and was awarded

life imprisonment. The appeal preferred by her in the

High Court was dismissed by Division Bench. Hence,

this appeal.

14. It has neither been disputed before us nor was

disputed in appeal in the High Court that deceased had

met with her death on account of 90% burn injuries Crl.A.No. 699/08 7

sustained in matrimonial home. This even otherwise

stands proved from her post-mortem Report Exh. P-22

and evidence of P.W-30 Dr. Ashwini Sanghvi, who had

performed post-mortem on her body and has opined that

her death was due to Septecimia and shock on account of

extensive external burn injuries sustained by her.

15. Now, the question that arises for consideration is

whether the present appellant Sharda, mother-in-law of

deceased Sarla was the perpetrator of the crime or it

was an accidental death.

16. We have already mentioned hereinabove that there

are, in all, three dying declarations - Exh.D-3, is

first in point of time, Exh P.3, is second in point of

time and Exh. P.18, is the third and last in point of

time recorded by Executive Magistrate, Ahmedabad.

17. Since the case revolves around the three dying

declarations of deceased Sarla, it is really not

necessary to critically examine other evidence as no

charge was levelled against this appellant under

Section 498-A IPC and the said charge was not found

proved against other co-accused.

18. In the light of this, we are not dealing with Crl.A.No. 699/08 8

other prosecution witnesses who have deposed either

with regard to demand of dowry or harassment of the

deceased by the appellant for the same as the same is

not germane to the facts of this case.

19. However, we would start with the first dying

declaration of deceased Sarla recorded at 9.00 p.m on

16.8.1999 by P.W-22 Kishore Singh. It was recorded in

presence of P.W-31 Dr. Prajapati.

20. Even though PW-31 was examined by the prosecution

to prove Exh. D-3, but surprisingly neither the

trial court nor the High Court cared to go through his

evidence and to discuss the same at all. Thus, it is

necessary for us to discuss the same in detail.

21. Dr. Prajapati has deposed that on 16.8.1999, he

was posted as Surgeon in Deen Dayal Upadhyay Hospital.

That day Sarla w/o Vinod Vyas resident of Tamtiya, P.S.

Varda, was admitted in the hospital on account of burn

injuries sustained by her. She had given her statement

which was recorded in his presence, marked as D-3. The

same bears his signature and thumb impression of Sarla.

22. In his cross-examination, he has categorically

deposed that during the time her statement was Crl.A.No. 699/08 9

recorded, she was mentally alert and was in a condition

to get her statement recorded. He has further admitted

that the said statement was not recorded under pressure

from anyone and was given on her own free will and

accord. He has further clarified that in Exh. D-3, her

first dying declaration, she had stated that while

cooking food, on Primus stove, she pumped air which

inflamed the same, her clothes accordingly caught fire

and she sustained burn injuries. She further stated

that no one had set her on fire.

23. Thus, his cross-examination fully establishes that

she had sustained burn injuries on her own while

cooking food and has not fastened liability on anyone

else much less on the present appellant.

24. To further corroborate Exh. D-3, the evidence of

PW-22 Kishore Singh is on record. He has categorically

deposed the manner in which statement of deceased was

recorded in Exh. D-3. He has also deposed that at that

time P.W.31 Dr. Gokul Prajapati was also present who

certified her to be in mentally fit and proper

condition to get the same recorded. From the aforesaid

evidence, it is crystal clear that the first dying Crl.A.No. 699/08 10

declaration of deceased Ex.D-3 stood fully corroborated

from the evidence of P.W-22 and P.W-31.

25. Now, we shall take up her second dying declaration

recorded by P.W-20 Ranjit Singh marked P-3 on 16.8.1999.

Critical examination of the same also shows that

deceased had stated that after cooking meals in the

evening she was trying to extinguish the stove, but it

got inflamed and her nylon saree caught fire. No one

had put her to fire and no one should be blamed for it.

Perusal of the same would show that these two statements

are consistent and have been made by her, before being

tutored by anyone.

26. Now, we shall deal with Exh. P-18, her last

statement recorded at Ahmedabad in presence of P.W-23

Suresh Chand Dixit, Executive Magistrate. We have

critically gone through the same. We have also examined

the reasons assigned by Trial Court and High Court

while treating this dying declaration, Exh P-18, as

wholly trustworthy. No doubt, it is true that the same

is in question - answer form but perusal of the

original record clearly shows that it has many over-

writings and some dates have been scored out to put new Crl.A.No. 699/08 11

dates. This itself creates a doubt in mind with regard

to correctness and veracity thereof. It is also to be

noted that this was recorded on 19.8.1999 whereas two

earlier statements Exh. D-3 and Exh. P-3 were recorded

on 16.8.1999 in quick succession, soon after the

incident.

27. Thus, the question still arises whether any

weightage can be given to Exh.P-18 which was recorded

in presence of the Executive Magistrate or it has to be

completely given a go-by so as to give more credence to

Exh. D-3 and P-3 her earlier statements recorded by the

police in presence of doctors.

28. It is pertinent to mention here that Exh. P-3 has

also been signed by P.W-19 Raman Lal, father of the

deceased. Surprisingly, while putting his signatures

on the dying declaration of the deceased, his daughter,

he had not raised any objection that it was not the

statement given by deceased. He kept quiet. When he

was confronted with his signatures on it at the time of

his cross-examination, he gave an explanation that

since many papers were being signed at the time of

discharge, he signed it without knowing the contents Crl.A.No. 699/08 12

thereof. Apparently, this appears to be a false and

baseless explanation, which at this point of time is

certainly not acceptable and would amount to an after-

thought. No prudent man would put his signatures on

any document without going through the same. Thus, it

is clear that if the complainant had any grievance with

regard to foul-play having been played by the accused

then obviously, he would have brought it to the notice

of the police immediately. Not having done so, speaks

volumes on the conduct of the complainant party.

29. There is yet another factor which would completely

discredit the last dying declaration Exh. P-18. For

the first time, a written complaint was sent by the

cousin of deceased to the Deputy Superintendent of

Police only on 19.8.1999. This would go to show that

between 16.8.1999 to 19.8.1999, until her third and

last dying declaration was recorded, they never

suspected that she has been burnt by her mother-in-law,

the present appellant. Their silence during this period

is indicative of the fact that they were also under the

impression that deceased had caught fire only by

accident and it was not her mother-in-law who was Crl.A.No. 699/08 13

perpetrator of the crime.

30. Cumulative effect of the aforesaid leads to an

irresistible conclusion that Exh. P-18 is not

sufficient to hold the appellant guilty of commission

of offence under Section 302 of the IPC. It neither

inspires confidence nor is wholly trustworthy to

sustain the conviction of the appellant. It was an

after-thought and has been got prepared after the

deceased appears to have been tutored to say so by her

parents. In the light of this, it has to be completely

ignored which we accordingly do so.

31. In other words, we place greater reliance on Exh.

D-3, and Exh. P-3, her two earlier dying declarations

which are not only consistent but also inspire

confidence.

32. In the case in hand, the conviction of the

appellant is based on the last dying declaration Exh.P-

18, said to have been recorded in presence of Executive

Magistrate. The principle on which dying declarations

are admitted in evidence is indicated in legal maxim:

"Nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth."

33. It is indicative of the fact that a man who is on Crl.A.No. 699/08 14

a death bed would not tell a lie to falsely implicate

an innocent person. This is the reason in law to

accept the veracity of her statement. It is for this

reason, the requirements of oath and cross-examination

are dispensed with. Besides, if the dying declaration

is to be completely excluded in a given case, it may

even amount to miscarriage of justice as the victim

alone being the eye-witness in a serious crime, the

exclusion of the statement would leave the court

without a scrap of evidence.

34. Though a dying declaration is entitled and is

still recognized by law to be given greater weightage

but it has also to be kept in mind that accused had no

chance of cross-examination. Such a right of cross-

examination is essential for eliciting the truth as an

obligation of oath. This is the reason, generally, the

court insists that the dying declaration should be such

which inspires full confidence of the court of its

correctness. The court has to be on guard that such

statement of deceased was not as a result of either

tutoring, prompting or product of imagination. The

court must be further satisfied that deceased was in a Crl.A.No. 699/08 15

fit state of mind after a clear opportunity to observe

and identify the assailants. Once the court is

satisfied that the aforesaid requirement and also to

the fact that declaration was true and voluntary,

undoubtedly, it can base its conviction without any

further corroboration. It is not 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.

In this regard, we may profitably quote the

following para from (1985) 4 SCC 476 titled State

(Delhi Administration) Vs Laxman Kumar & Ors :

"40. We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%. As the evidence shows, Sudha was in her senses and was capable of talking at the time when she was being removed to the hospital or even after she had been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that Sudha would not live. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the accused persons and lead to the straining of relationship in an irreparable way. Therefore, Crl.A.No. 699/08 16

the silence or avoidance to make a true disclosure about the cause of fire particularly so long as Sudha was alive, cannot be over- emphasised an adverse inference drawn by the High Court from the conduct of the sisters was indeed not warranted in the facts of the case.

35. In the light of the aforesaid discussion, we are

of the considered opinion that Exh. P-18 cannot be

treated as wholly trustworthy as it is shrouded by many

doubts. On the other hand, for the reasons recorded

herein above, Exh. D-3 and P-3 are more reliable and

credible. Going by the same would fully establish that

the deceased had not implicated in the same anyone much

less the appellant.

36. Thus, we have no doubt in our mind that the

impugned judgment and order of conviction passed by the

learned Sessions Judge and confirmed in appeal by the

High Court cannot be sustained in law. The same are

hereby set aside and quashed. The appeal is allowed

accordingly. The appellant is in jail, she would be

released forthwith, if not required in any other case.

.....................J. [AFTAB ALAM]

New Delhi. .....................J. December 15, 2009. [DEEPAK VERMA]