Sunday, 30 April 2017

Whether oral evidence contrary to hospital records can be relied on?

 There is one more reason that was given by the trial court in discarding
the dying declaration and if correct, that would afford strong
circumstance to justify its conclusion. It is the PW-4 who has come as a
shield to protect the appellants. For this reason, we advert to the
statement of Balraj (PW-4), brother of the deceased. He stated that on
the night intervening 19th – 20th September, 1999, Ramesh was with him.
He further deposed that at 4:00 a.m. on 20th September, 1999, they
received the information about the deceased having sustained burn
injuries and he along with Ramesh reached PGIMS, Rohtak where she
was already present. It is on the basis of this statement that the trial
court observed that since Ramesh was with Balraj (PW-4) in his house,
he could not be present at the place of incident when it took place and,
therefore, he is falsely implicated and mentioning of his name
considerably dents the veracity of dying declaration thereby rendering it
questionable. However, we find that in accepting the aforesaid version
of PW-4, the trial court committed a serious mistake. As per the hospital
records, it is Ramesh who had brought the deceased to the hospital and
got her admitted which was even the defence case as well. The trial
court completely overlooked this pertinent aspect. This fact alone is
sufficient to discredit the statement of PW-4 that Ramesh was with him
in his house and both of them had received the information about the
incident and when both of them reached PGIMS, Rohtak, the deceased
was already there. In these circumstances, we entirely agree with the
High Court that PW-4, though brother of the deceased, appears to have
been won over by the appellants.
 Present case appears to have been stung by 'culture of compromise'.
Fortunately, statement of PW-4 in attempting to shield the accused
Ramesh has been proved to be false in view of the records of PGIMS,
Rohtak and, therefore, we held that High Court was right in discarding
his testimony.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2526 OF 2014
RAMESH STATE OF HARYANA 
Citation: 2017 CRLJ 352

The appellants herein were tried and acquitted by the Sessions
Court for offences under Sections 302, 34, 498A of Indian Penal Code
(for short, 'IPC') for which FIR bearing No. 254 dated 28th September,
1999 was registered against them in Police Station Sadar, Bahadurgarh,
District Jhajjar, Haryana. However, the High Court, in appeal, has
overturned the verdict of acquittal, thereby convicting all the four
accused persons (appellants herein). The judgment of the High Court is
dated 30th May, 2014, whereby the appellants are sentenced as under:
“Section 302/34 IPC:- To undergo rigorous
imprisonment for life and to pay a fine of Rs.10,000/-. In
default of payment of fine, to further undergo rigorous
imprisonment for one year.
Section 498-A/34 IPC:- To undergo rigorous
imprisonment for two years and to pay a fine of
Rs.2,000/-. In default of payment of fine, to further
undergo rigorous imprisonment for six months.”
2. We may state at the outset that the conviction is primarily based upon
the statement of Smt. Roshni, wife of Appellant no. 1, just before her
death. This statement has been taken by the courts below as her 'dying
declaration' and acted upon with the aid of Section 34 of the Indian
Evidence Act, 1872. It is this dying declaration which is the bone of
contention. According to the appellants herein there was no reason to
rely upon the same not only because of certain infirmities therein but
also for the reason of absence of any corroboration. Therefore, before
proceeding further, we would like to reproduce the statement of Roshni
(hereinafter referred to as the 'deceased'). It reads as under:
“.....Stated that it was the time of 3 A.M. today. I was sleeping in
my house at that time. Then my husband Ramesh came and
Suresh his brother, i.e., my devar was also with him. Before this,
Ramesh my husband and Suresh gave beatings to me.
Thereafter, my devar Suresh lighted stick of matchbox. Wife of
Suresh and my mother in law namely Saroj and Prem caught
hold. Those both brothers ablazed me. Thereafter, the person
who had caught hold me and who had set me on fire fled away
from the spot. Thereafter, outsider persons came there and put
off my fire. I had become upset. Then I was shifted to Medical
College by my devar Suresh and my mother in law.
My marriage was solemnized 20 years before. I have two sons
Manjit and Ravinder aged about 16 and 15 years. One year ago
after giving beatings to me I was thrown in a well by Ramesh and
Suresh. I was taken out from the well by the villagers. On some
occasion they say to bring buffalo and on some occasion they
demand money and scooter. All the persons i.e. my mother in
law, devrani, devar and husband used to beat me. Nothing else i
intend to depose, i am illiterate. I have heard my aforesaid
statement, which is correct and accurate. Admitting it to be
correct i put my signature on it.”
3. As pointed about above, FIR was registered against the appellants on
the basis of the aforesaid statement which reflects the case of
prosecution as well. Still, in order to have the complete narration of the
prosecution story, we would like to recapitulate the same hereunder.
4. Marriage between Ramesh (Appellant No. 1) and the deceased was
solemnized 20 years before the aforesaid incident. They had two sons
out of their wedlock, namely, Manjit and Ravinder, 16 and 15 years old
respectively. The deceased was being harassed by her husband and
in-laws on continuous demand of dowry which could not be fulfilled by
the parents of the deceased. One year before the incident, she was
even thrown in a well by her husband and younger brother Suresh but
was rescued by the villagers. She was subjected to continuous physical
torture and beatings by her husband, younger brother Suresh, Saroj
(wife of Suresh) and Prem (her mother in-law).
On the fateful day, i.e., 20th September, 1999 when the deceased was
sleeping in the matrimonial house, her husband Ramesh, Suresh, Saroj
and Prem came there. Saroj and Prem caught hold of her from her arms
and Ramesh sprinkled kerosene on her. Suresh lighted a matchstick
and set her ablaze. After setting her ablaze all of them fled away from
the spot. Some persons from her neighbourhood came and
extinguished the fire. She was taken to Post-Graduate Institute of
Medical Sciences (PGIMS), Rohtak by Ramesh, Suresh and Prem. On
examination by the doctors in the Post-Graduate Institute of Medical
Sciences, it was found that she was suffering from 100% burns. An
information was sent by Dr. R.P. Verma to Police intimating admission of
the deceased in the hospital. On receipt of this information,
Sub-Inspector Rohtash visited the hospital and collected medico-legal
report of the victim. He moved the application (Ex. PJ) to the same
medical officer seeking his opinion with regard to the fitness of the
patient, that is, to say whether she was in fit state of mind to give a
statement. The doctor declared her fit to make a statement vide
endorsement Ex. PJ/1. On this, the Sub-Inspector approached the Chief
Judicial Magistrate, Rohtak and moved the application (Ex. PH) for
deputing an officer to record her statement. Shri Bhupender Nath,
Judicial Magistrate, First Class, Rohtak was assigned this task vide
order Ex. PH/1. The said Judicial Magistrate visited the hospital and
recorded the statement, which has already been reproduced above. On
the basis of the aforesaid statement, initially the FIR was registered
under Section 307, 498A read with Section 34, IPC. However, Roshni
succumbed to injuries within few hours (around 10.30 p.m.) on the same
day, i.e., 20th September, 1999. After her death, the FIR was modified by
substituting Section 302 IPC in place of Section 307 IPC. Postmortem
of the body of the deceased was conducted. The dead body was also
subjected to autopsy by a Board of Doctors. Investigating Officer also
conducted the spot inspection, prepared rough site plan of the place of
occurrence (Ex.PL), took into possession writing Ex.PD/1, arrested the
accused persons, subjected them to custodial interrogation and in
pursuance to their disclosure statement, got recovered various articles
which were taken into possession. On completion of investigation and
other formalities, a report under Section 173(2) Cr.P.C. was presented
before the Court of Jurisdictional Magistrate.
5. Since an offence under Section 302 IPC is exclusively triable by the
Court of Sessions, case was committed under Section 209 Cr.P.C. by
the Magistrate after having complied with the provisions contained under
Section 207 Cr.P.C. It was ultimately entrusted to the Court of Additional
Sessions Judge, Rohtak, for trial.
6. The Court of Sessions framed the charges against all the accused
persons under Section 302, 498A, IPC with the aid of section 34 IPC.
The appellants pleaded not guilty and opted to contest. With this, trial
began and prosecution examined as many as 14 witnesses. Deposition
of these witnesses, as taken note of by the Trial Court as well as the
High Court, is described in capitulated form hereinafter.
7. PW-1, Dr. R.P. Verma deposed with regard to admission of thePage 6
6
deceased in PGIMS, Rohtak at 6:40 AM on 20th September, 1999 with
100% burns. He conducted medico-legal examination and proved copy
of MLR (Ex.PA). He also sent ruqa (Ex.PB) to Police Post, PGIMS,
Rohtak, intimating her admission.
8. PW-2, Constable Jai Chand prepared scaled site plan (Ex.PC) of the
place of occurrence with correct marginal notes on demarcation by
Karan Singh.
9. PW-3, Sardar Singh (father of the deceased), deposed with regard to
the compromise arrived at with the accused Ramesh and others about a
year prior to the occurrence in question. He furnished copy of
compromise as well as that of proceedings initiated under Section
107/151 Cr.P.C. to Investigating Officer which were taken into
possession by him vide Ex.PD. He did not support prosecution version in
respect of occurrence and ultimately he was declared hostile for toeing
the line of the defence.
10. PW-4, Balraj (brother of the deceased), identified dead body of the
deceased in the hospital. PW-5, Partap, who is one of the relations of
the deceased, was a witness to the recovery memo (Ex.PD/1). PW-6,
Constable Jagdish Chander got conducted autopsy of the dead body of
the deceased. PW-7, Constable Kuldeep Singh was entrusted with the
duty of handing over the special report to the jurisdictional Magistrate asPage 7
7
well as senior police officer.
11. PW-8, Sub-Inspector Rohtash Singh, conducted initial investigation of
this case. PW-9, Head Constable Balwan Singh, was a member of
police party at the time when accused Ramesh was subjected to
interrogation by the Station House Officer Karan Singh and he suffered
disclosure statement (Ex.PM) to the effect that he had kept concealed
an empty plastic container of kerosene and that he could get the same
recovered. Subsequently, in pursuance to his disclosure statement, he
got recovered plastic container (Ex.P1) from the premises of his
residential house which was taken into possession vide Ex.PN.
12. PW-10, Inspector Mohar Singh proved proceedings carried by him under
Section 107/151 Cr.P.C. against Ram Phal, son of Chandgi, and
Ramesh and Suresh, sons of Ram Phal, in pursuance of DDR No. 5
dated May 22, 1998, Police Station, Sadar, Bahadurgarh. He proved
copy of the calender (Ex.PD/2). On receipt of ruqa, he got registered
FIR Ex.P1/A on September 20, 1999.
13. PW-11, Shri Bhupender Nath, Judicial Magistrate Ist Class, who
recorded dying declaration of the deceased, proved the same as Ex.
PH/3, on the basis of which formal FIR was put in black & white and
investigation was put in motion.
14. PW-12, Dr. Neelam Thapar, Medical Officer, General Hospital, Rohtak,Page 8
8
being a member of the Medical Board, conducted autopsy on the dead
body of Smt. Roshni and deposed as under:
“....Length of the body was 160 C.M. A mod build and mod
nourished dead body of female, wearing no clothes having
white metal ring in body side 2nd toes. No mark of ligature
on the neck and dissection etc. present. R.M. present in
all four limbs. The injuries are follows:-
“1. Superficial to be deep infected burns present all
over the body except both feet.
2. There is red line of demarcation between burn
and non-burn areas.
3. Singing of hair present over scalp, external
genetalia and both axilla.
4. Scalp, skull and vertebrae described,
membranes brain healthy and congested walls, ribs
and cartridges described.
Pleura healthy, larynx and trachea healthy, both lungs
healthy and congested.
Right side heart contains blood, left side of heart empty.
Abdominal wall described. Peritoneum healthy. Mouth,
pharynx and oesophagus healthy, stomach and its
contents healthy and congested. Stomach contains 50css
of mucoid juices. Small intestines and their contents
healthy and congested and large intestine contain faecal
matter. Liver, spleen, kidneys healthy and congested.
Bladder empty. Organs of generation external and internal
external genetalia-hair burn and uterus does not have any
product of conception.
In our opinion the cause of death of deceased was burn
and its complication where were ante mortem in nature
and sufficient to cause the death in natural course of
nature.....”
15. On the conclusion of the prosecution evidence, incriminating
circumstances appearing on record were put to the accused persons for
eliciting their explanation thereto, as per the procedure mandated underPage 9
9
Section 313 of the Cr.P.C. They denied having any role and pleaded
that it was a case of accidental fire in which the deceased was trapped.
Since identical defence plea was taken by all the accused persons, our
purpose would be served in reproducing the statement of Ramesh
(Appellant No.1) which runs as under :
“I am innocent. I was living separate from the rest of the
family after dispute was settled in May, 1998 as declared
by the deceased Smt. Roshni. On the night between
19/20/9.1999, I was at my in laws house at Nizampur,
Delhi along with my truck and early in the morning at 4.00
A.M. a telephonic message was received that Smt. Roshni
has received burn injuries due to falling of kerosene lamp
and is being referred to PGI, Rohtak and got her admitted
in the hospital. I or any of my family members have never
harassed Smt. Roshni for dowry or otherwise. After
compromise, she was living happily with me. It seems that
since she has tutored her to make she alleged statement
before JMIC.”

16. The trial court, after appraising the evidence on record, in the light of
oral arguments which were advanced by both the sides, held that the
prosecution could not prove the guilt of the appellants beyond
reasonable doubt. As per the trial court, the dying declaration of the
victim could not be acted upon for the purpose of conviction in view of
the following attendant circumstances:
(a) The Judicial Magistrate (PW-11) had stated during his cross-examination
that he could not say if the deceased was semi-conscious when he
recorded her statement and he had proceeded to record her statement
because the Doctor had given his opinion that she was in fit state of
mind to give the statement. Page 10
10
(b) Balraj (PW-4), who is the brother of the deceased had stated during the
cross-examination that deceased husband Ramesh (appellant No.1) had
come to his house and stayed with him on the night intervening 19th-20th
September, 1999. He further deposed that on 20th September, 1999 at
4:00 a.m., they had received information about the deceased catching
fire and on hearing this news, he along with Ramesh had gone to
Rohtak, where the deceased was already lying admitted in the hospital.
PW-4 had also deposed to the effect that he had a talk with the
deceased who disclosed him that she had received burn injuries as an
earthern lamp had fallen on her.
The trial court believed the aforesaid statement of PW-4 who is none
else than the brother of the deceased and concluded that had the
appellants committed murder of his sister, he would not have any soft
corner for these accused persons. The trial court also observed that as
per the statement of PW-4, since appellant No. 1 Ramesh was with him
at the time of the incident, he had been falsely implicated in the case.
(c) The trial court also took into consideration the conduct of other appellants,
namely, Suresh (brother of Ramesh), his wife Saroj and Prem (mother of
Ramesh) who had taken the deceased to the hospital i.e. PGIMS,
Rohtak for treatment. Commenting upon this, the trial court observed
that had they poured kerosene on the deceased and set her on fire with
intention to cause her death, they would not have taken her to thePage 11
11
hospital for treatment and they would not have got evidence created
against themselves.
(d) As per the trial court, the dying declaration of the deceased was also
intrinsically weak and was not trustworthy.
This conclusion was arrived at by analysing the episode in the following
manner:
“...Roshni was sleeping in the house when she caught fire
at 3:00 AM on 20.09.1999. Four persons were not
required to commit her murder by getting her on fire.
When she was sleeping one person could easily pour
kerosene and set her on fire. Allegations made by Roshni
in her statement Ex.PH/3 that Saroj and Prem caught hold
of her and Ramesh poured kerosene on her and Suresh
lighted fire, appears to be concocted and unnatural.”
17. On the aforesaid circumstances, the Court of Sessions held that it was
not safe to place reliance upon the dying declaration and the possibility
that the deceased committed suicide by dousing herself with kerosene
and setting herself on fire and thereafter falsely implicating the
appellants, could not be ruled out in order to take revenge against them
for their perceived past misbehaviour.
18. The High Court, in the impugned judgment, has found fault with the
aforesaid analysis, approach and the manner in which the dying
declaration has been dealt with by the trial court. According to the High
Court, the veracity of the dying declaration could not be examined with
reference to the other evidence. It has held that the approach of the trialPage 12
12
court was blemished. According to the High Court, the trial court was
required to appreciate as to whether the statement of the deceased was
given in a fit state of mind; and whether it was voluntarily given without
being influenced by any extraneous circumstances and without any
tutory. If that was so and the dying declaration of the deceased passed
the muster of the aforesaid test and was to be believed, the conviction
could be based solely on such a dying declaration. The High Court then
examined the dying declaration in the aforesaid perspective and found
that the Doctor had declared her fit to make a statement on the basis of
which the Judicial Magistrate recorded the statement and even after
recording of the statement, the Doctor again gave endorsement that the
deceased remained fit during the period her statement was recorded. In
such circumstances, statement of the Judicial Magistrate (PW-11) in the
Court that he could not say whether the deceased was semi-conscious
when her statement was recorded, was of no consequence as he had
acted on the basis of the medical opinion. The High Court has also
observed that PW-11 never stated in categorical terms that the
deceased was semi-conscious when her statement was recorded and,
therefore, the said reply of PW-11 in cross-examination was read out of
context. The High Court further observed that it was not appropriate on
the part of the trial court to discard the dying declaration in view of the
deposition of her brother Balraj (PW-4). As per the High Court, not onlyPage 13
13
PW-4 but his father (PW-3) had not supported the statement for the
reasons best known to them and it appeared that they had been won
over by the appellants. The High Court also noted that merely because
the deceased had suffered 100% burns was no ground to discard the
dying declaration when there was a specific certificate given by the
Doctor about her mental fitness and that she was capable of giving the
statement.
19. Learned counsel for the appellants challenged the correctness of the
manner in which the High Court has pondered over the issue. In the
first instance, he submitted that it was a case of acquittal by the trial
court after due appreciation of evidence on record and even when two
views were possible, the High Court should not have tinkered with the
acquittal. He also insisted that the trial court had given cogent reasons
for not believing the dying declaration and one of the most material
circumstance was that on the fateful night when the incident occurred,
appellant No.1 (husband of the deceased) was with PW-4 and it clearly
demonstrated that appellant No.1 was falsely roped in. Therefore, it
could not be said that the deceased had given an honest and truthful
statement. He further submitted that having suffered 100% burns, under
no circumstances could she be in a position to give the statement and,
therefore, certificate of Doctor should not have been believed. Page 14
14
20. Learned counsel for the respondent, on the other hand, submitted that
incident took place in the matrimonial house and the deceased had
given the statement after reaching the hospital. The authorities were
fully satisfied that she was in a position to give the statement.
Therefore, there was no reason to discard the statement as was wrongly
done by the trial court. He, thus, supported the reasons given by the
High Court.
21. We have duly appreciated the submissions advanced by counsel for the
parties on both sides. No doubt, the High Court was dealing with the
appeal against the judgment of the trial court which had acquitted the
appellants herein. The scope of interference in an appeal against
acquittal is undoubtedly narrower than the scope of appeal against
conviction. Section 378 of the Code of Criminal Procedure, 1973
confers upon the State a right to prefer an appeal to the High Court
against the order of acquittal. At the same time, sub-section (3) thereof
mandates that such an appeal is not to be entertained except with the
leave of the High Court. Thus, before an appeal is entertained on
merits, leave of the High Court is to be obtained which means that
normally judgment of acquittal of the trial court is attached a definite
value which is not to be ignored by the High Court. In other words,
presumption of innocence in favour of an accused gets further fortified or
reinforced by an order of acquittal. At the same time, while exercising itsPage 15
15
appellate power, the High Court is empowered to reappreciate, review
and reconsider the evidence before it. However, this exercise is to be
undertaken in order to come to an independent conclusion and unless
there are substantial and compelling reasons or very strong reasons to
differ from the findings of acquittal recorded by the trial court, the High
Court, as an appellate court in an appeal against the acquittal, is not
supposed to substitute its findings in case the findings recorded by the
trial court are equally plausible. The scope of interference by the
appellate court in an order of acquittal is beautifully summed up in the
case of Sanwat Singh v. State of Rajasthan1
 in the following words:
“The foregoing discussion yields the following results: (1)
an appellate court has full power to review the evidence
upon which the order of acquittal is founded; (2) the
principles laid down in Sheo Swarup's case afford a
correct guide for the appellate court's approach to a case
in disposing of such an appeal; and (3) the different
phraseology used in the judgments of this Court, such as,
(i) "substantial and compelling reasons", (ii) "good and
sufficiently cogent reasons", and (iii) "strong reasons" are
not intended to curtail the undoubted power of an appellate
court in an appeal against acquittal to review the entire
evidence and to come to its own conclusion; but in doing
so it should not only consider every matter on record
having a bearing on the questions of fact and the reasons
given by the court below in support of its order of acquittal
in its arriving at a conclusion on those facts, but should
also express those reasons in its judgment, which lead it to
hold that the acquittal was not justified.”
22. This legal position is reiterated in Govindaraju @ Govinda v. State by
Sriramapuram Police Station and another2
 and the following passage
1 1961 SCR (3) 120
2
(2012) 4 SCC 722Page 16
16
therefrom needs to be extracted:
“12. The legislature in its wisdom, unlike an appeal by an
accused in the case of conviction, introduced the concept
of leave to appeal in terms of Section 378 CrPC. This is an
indication that appeal from acquittal is placed on a
somewhat different footing than a normal appeal. But once
leave is granted, then there is hardly any difference
between a normal appeal and an appeal against acquittal.
The concept of leave to appeal under Section 378 CrPC
has been introduced as an additional stage between the
order of acquittal and consideration of the judgment by the
appellate court on merits as in the case of a regular
appeal. Sub-section (3) of Section 378 clearly provides
that no appeal to the High Court under sub-section (1) or
(2) shall be entertained except with the leave of the High
Court. This legislative intent of attaching a definite value to
the judgment of acquittal cannot be ignored by the courts.
13. Under the scheme of CrPC, acquittal confers rights on
an accused that of a free citizen. A benefit that has
accrued to an accused by the judgment of acquittal can be
taken away and he can be convicted on appeal, only when
the judgment of the trial court is perverse on facts or law.
Upon examination of the evidence before it, the appellate
court should be fully convinced that the findings returned
by the trial court are really erroneous and contrary to the
settled principles of criminal law.”
23. The Court also took note of earlier precedents and summarised the legal
position laid down in those cases, in the following words:
“17. If we analyse the above principle somewhat concisely,
it is obvious that the golden thread which runs through the
web of administration of justice in criminal cases is that if
two views are possible on the evidence adduced in a case,
one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused
should be adopted.
18. There are no jurisdictional limitations on the power of
the appellate court but it is to be exercised with some
circumspection. The paramount consideration of the court
should be to avoid miscarriage of justice. A miscarriage of
justice which may arise from the acquittal of guilty is noPage 17
17
less than that from the conviction of an innocent. If there is
miscarriage of justice from the acquittal, the higher court
would examine the matter as a court of fact and appeal
while correcting the errors of law and in appreciation of
evidence as well. Then the appellate court may even
proceed to record the judgment of guilt to meet the ends of
justice, if it is really called for.
xx xx xx
22. A very vital distinction which the court has to keep in
mind while dealing with such appeals against the order of
acquittal is that interference by the court is justifiable only
when a clear distinction is kept between perversity in
appreciation of evidence and merely the possibility of
another view. It may not be quite appropriate for the High
Court to merely record that the judgment of the trial court
was perverse without specifically dealing with the facets of
perversity relating to the issues of law and/or appreciation
of evidence, as otherwise such observations of the High
Court may not be sustainable in law.”
24. The appellate court, therefore, is within its power to reappreciate or
review the evidence on which the acquittal is based. On reconsideration
of the evidence on record, if the appellate court finds the verdict of
acquittal to be perverse or against the settled position of law, it is duly
empowered to set aside the same. On the other hand, if the trial court
had appreciated the evidence in right perspective and recorded the
findings which are plausible and the view of the trial court does not suffer
from perversity, simply because the appellate court comes to a different
conclusion on the appreciation of the evidence on record, it will not
substitute its findings to that of findings recorded by the trial court.
25. In the instant case, we find that the High Court has interfered on the
ground that the very approach of the trial court in appreciating thePage 18
18
evidence on record was legally unsustainable. If such observations of
the High Court are correct, it was fully justified in interjecting with the
verdict of the trial court.
26. We have already noticed above the reasons recorded by the trial court
while discarding the dying declaration. Admittedly, no weightage is given
by the trial court to the opinion of the Doctor certifying that the deceased
was in a fit state of mind. Likewise, no reasons were given by the trial
court as to why the testimony of the Judicial Magistrate, who recorded
the statement, be disbelieved.
27. Law on the admissibility of the dying declarations is well settled. In Jai
Karan v. State of N.C.T., Delhi3
, this Court explained that a dying
declaration is admissible in evidence on the principle of necessity and
can form the basis of conviction if it is found to be reliable. In order that
a dying declaration may form the sole basis for conviction without the
need for independent corroboration it must be shown that the person
making it had the opportunity of identifying the person implicated and is
thoroughly reliable and free from blemish. If, in the facts and
circumstances of the case, it is found that the maker of the statement
was in a fit state of mind and had voluntarily made the statement on the
basis of personal knowledge without being influenced by others and the
court on strict scrutiny finds it to be reliable, there is no rule of law or
3
(1999) 8 SCC 161Page 19
19
even of prudence that such a reliable piece of evidence cannot be acted
upon unless it is corroborated. A dying declaration is an independent
piece of evidence like any other piece of evidence, neither extra strong
or weak, and can be acted upon without corroboration if it is found to be
otherwise true and reliable. There is no hard and fast rule of universal
application as to whether percentage of burns suffered is determinative
factor to affect credibility of dying declaration and improbability of its
recording. Much depends upon the nature of the burn, part of the body
affected by the burn, impact of the burn on the faculties to think and
convey the idea or facts coming to mind and other relevant factors.
Percentage of burns alone would not determine the probability or
otherwise of making dying declaration. Physical state or injuries on the
declarant do not by themselves become determinative of mental fitness
of the declarant to make the statement (See Rambai v. State of
Chhatisgarh4
).
28. It is immaterial to whom the declaration is made. The declaration may
be made to a Magistrate, to a Police Officer, a public servant or a private
person. It may be made before the doctor; indeed, he would be the best
person to opine about the fitness of the dying man to make the
statement, and to record the statement, where he found that life was fast
ebbing out of the dying man and there was no time to call the Police or
4
(2002) 8 SCC 83)Page 20
20
the Magistrate. In such a situation the Doctor would be justified, rather
duty bound, to record the dying declaration of the dying man. At the
same time, it also needs to be emphasised that in the instant case, dying
declaration is recorded by a competent Magistrate who was having no
animus with the accused persons. As held in Kushal Rao v. State of
Bombay5
, this kind of dying declaration would stand on a much higher
footing. After all, a competent Magistrate has no axe to grind against the
person named in the dying declaration of the victim and in the absence
of circumstances showing anything to the contrary, he should not be
disbelieved by the Court (See Vikas & Ors. v. State of Maharashtra6
).
29. No doubt, the victim has been brought with 100% burn injuries.
Notwithstanding, the doctor found that she was in a conscious state of
mind and was competent to give her statement. Thus, the Magistrate
had taken due precautions and, in fact, Medical Officer remained
present when the dying declaration was being recorded. Therefore, this
dying declaration cannot be discarded merely going by the extent of
burns with which she was suffering, particularly, when the defence has
not been able to elicit anything from the cross-examination of the doctor
that her mental faculties had totally impaired rendering her incapable of
giving a statement.
5 1958 SCR 552
6
(2008) 2 SCC 516Page 21
21
30. Keeping in view the aforesaid considerations, we feel that High Court
rightly observed that the manner in which the trial court proceeded with
the matter was legally unsustainable. It was necessary for the trial court,
in the first instance, to see as to whether due precautions were taken
before recording the statement of the deceased, which became dying
declaration as she died within few hours thereafter. In this context, what
is relevant is that the moment the deceased was admitted in PGIMS,
Rohtak, without any loss of time and immediately thereafter the Doctor
at the said hospital sent the information to the police post about her
admission in the hospital with burns. On receipt of that information,
Sub-Inspector visited the hospital and collected Medical Report of the
deceased. He immediately moved an application before the concerned
Medical Officer seeking his opinion with regard to the fitness of the
patient. On that application itself (Ex. PG), the Doctor made an
endorsement (Ex. PG/1) that she was fit to make statement.
Sub-Inspector did not record the statement of the deceased himself.
Rather, he took due precaution by approaching the Chief Judicial
Magistrate, Rohtak with an application (Ex. PH) requesting him to
depute an officer to record the statement of the deceased. On this
application, orders were passed (Ex. PH/1) directing Bhupinder Nath,
Judicial Magistrate, First Class, Rohtak to go to the hospital and record
the statement. Armed with this order, the Magistrate reached thePage 22
22
hospital and recorded the statement of the deceased. This recording
was done in the presence of the Doctor who again certified that she had
given the statement in a fit state of mind.
31. Aforesaid narration stating the manner in which statement of the
deceased was recorded clearly brings out that all possible precautions
were taken by the concerned authorities before and while recording her
statement. The trial court in its judgment has not even discussed the
aforesaid aspects. The recording of statement by the Judicial Magistrate
is sought to be discredited on the specious ground that in his
cross-examination he has stated that he could not say whether the
deceased was semi-conscious. The High Court has rightly recorded that
this statement of PW-11 is read out of context. The aforesaid answer by
PW-11 was in reply to the question put to him as to whether the
deceased was semi-conscious when her statement was recorded by
him. It is in reply to this question he stated that he cannot say if she was
semi-conscious when her statement was recorded. He also clarified that
since the Doctor had given his opinion, he proceeded to record her
statement. It may be noticed that PW-11 nowhere stated that the
deceased was semi-conscious when her statement was recorded. The
statement of PW-11 was to be taken into consideration as a whole. It
has come on record, and we repeat, that after the completion of her
statement, the Doctor made an endorsement (Ex. PH/4) to the effect thatPage 23
23
the deceased remained fit during the recording of her statement and it is
only thereafter the learned Magistrate (PW-11) appended his signature
(Ex. PH/5) categorically stating that the statement recorded by him was
true version of what the deceased had spoken and he had stated in
unambiguous terms that she was fit to make statement and remained fit
till her statement was recorded.
32. In view of the specific certification by the Doctor about the fitness of the
deceased that she remained fit while recording the statement, the mere
effect that she had suffered 100% burns would not, ipso facto, lead to
the conclusion that the deceased was unconscious or that she was not
in a proper state of mind to make a statement. At this stage, it would
also be relevant to point out that no challenge was made by the defence
to the aforesaid statement of the deceased on the ground that it was not
made voluntarily or it was made by any extraneous circumstances or
was the result of tutoring. In fact, even as per the appellants, it is they
who had taken the deceased to the hospital and no other person known
to her had come in her contact before the statement was recorded. On
the contrary, PW-3 and PW-4 (father and brother of the deceased
respectively) have not supported the prosecution version, which aspect
shall be dealt with later at the appropriate stage and, therefore, the
question of tutoring does not arise at all. Page 24
24
33. On examination and analysis of the dying declaration in the aforesaid
perspective, we do not find any reason to discard it having regard to the
legal position on the subject already noticed above by referring to
relevant case law. It is trite that dying declaration is a substantive piece
of evidence and can be made the basis of conviction once the Court is
convinced that dying declaration is made voluntarily and is not
influenced by any extraneous circumstances.
34. There is one more reason that was given by the trial court in discarding
the dying declaration and if correct, that would afford strong
circumstance to justify its conclusion. It is the PW-4 who has come as a
shield to protect the appellants. For this reason, we advert to the
statement of Balraj (PW-4), brother of the deceased. He stated that on
the night intervening 19th – 20th September, 1999, Ramesh was with him.
He further deposed that at 4:00 a.m. on 20th September, 1999, they
received the information about the deceased having sustained burn
injuries and he along with Ramesh reached PGIMS, Rohtak where she
was already present. It is on the basis of this statement that the trial
court observed that since Ramesh was with Balraj (PW-4) in his house,
he could not be present at the place of incident when it took place and,
therefore, he is falsely implicated and mentioning of his name
considerably dents the veracity of dying declaration thereby rendering it
questionable. However, we find that in accepting the aforesaid version
of PW-4, the trial court committed a serious mistake. As per the hospital
records, it is Ramesh who had brought the deceased to the hospital and
got her admitted which was even the defence case as well. The trial
court completely overlooked this pertinent aspect. This fact alone is
sufficient to discredit the statement of PW-4 that Ramesh was with him
in his house and both of them had received the information about the
incident and when both of them reached PGIMS, Rohtak, the deceased
was already there. In these circumstances, we entirely agree with the
High Court that PW-4, though brother of the deceased, appears to have
been won over by the appellants.
35. We find that it is becoming a common phenomenon, almost a regular
feature, that in criminal cases witnesses turn hostile. There could be
various reasons for this behaviour or attitude of the witnesses. It is
possible that when the statements of such witnesses were recorded
under Section 161 of the Code of Criminal Procedure, 1973 by the police
during investigation, the Investigating Officer forced them to make such
statements and, therefore, they resiled therefrom while deposing in the
Court and justifiably so. However, this is no longer the reason in most of
the cases. This trend of witnesses turning hostile is due to various other
factors. It may be fear of deposing against the accused/delinquent or
political pressure or pressure of other family members or other such
sociological factors. It is also possible that witnesses are corrupted with
monetary considerations.
36. In some of the judgments in past few years, this Court has commented
upon such peculiar behaviour of witnesses turning hostile and we would
like to quote from few such judgments. In Krishna Mochi v. State of
Bihar7
, this Court observed as under:
“31. It is matter of common experience that in recent times
there has been sharp decline of ethical values in public life
even in developed countries much less developing one,
like ours, where the ratio of decline is higher. Even in
ordinary cases, witnesses are not inclined to depose or
their evidence is not found to be credible by courts for
manifold reasons. One of the reasons may be that they do
not have courage to depose against an accused because
of threats to their life, more so when the offenders are
habitual criminals or high-ups in the Government or close
to powers, which may be political, economic or other
powers including muscle power.”
37. Likewise, in Zahira Habibullah v. State of Gujarat8
, this Court
highlighted the problem with following observations:
“40. Witnesses, as Bentham said, are the eyes and ears
of justice. Hence, the importance and primacy of the
quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the
trial gets putrefied and paralysed and it no longer can
constitute a fair trial. The incapacitation may be due to
several factors like the witness being not in a position for
reasons beyond control, to speak the truth in the court or
due to negligence or ignorance or some corrupt collusion.
Time has become ripe to act on account of numerous
experiences faced by the court on account of frequent
turning of witnesses as hostile, either due to threats,
coercion, lures and monetary considerations at the
instance of those in power, their henchmen and hirelings,
political clouts and patronage and innumerable other
7
(2002) 6 SCC 81
8
(2006) 3 SCC 374
corrupt practices ingeniously adopted to smother and stifle
truth and realities coming out to surface. Broader public
and social interest require that the victims of the crime who
are not ordinarily parties to prosecution and the interests of
State representing by their presenting agencies do not
suffer… there comes the need for protecting the
witnesses. Time has come when serious and undiluted
thoughts are to be bestowed for protecting witnesses so
that ultimate truth presented before the Court and justice
triumphs and that the trial is not reduced to mockery.
41. The State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases involving
those in power, who has political patronage and could
wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty. As a
protector of its citizens it has to ensure that during a trial in
Court the witness could safely depose truth without any
fear of being haunted by those against whom he had
deposed. Every State has a constitutional obligation and
duty to protect the life and liberty of its citizens. That is the
fundamental requirement for observance of the rule of law.
There cannot be any deviation from this requirement
because of any extraneous factors like, caste, creed,
religion, political belief or ideology. Every State is
supposed to know these fundamental requirements and
this needs no retaliation. We can only say this with regard
to the criticism levelled against the State of Gujarat. Some
legislative enactments like the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (in short the “TADA Act”)
have taken note of the reluctance shown by witnesses to
depose against people with muscle power, money power
or political power which has become the order of the day. If
ultimately truth is to be arrived at, the eyes and ears of
justice have to be protected so that the interests of justice
do not get incapacitated in the sense of making the
proceedings before Courts mere mock trials as are usually
seen in movies.”
38. Likewise, in Sakshi v. Union of India9
, the menace of witnesses turning
hostile was again described in the following words:
“32. The mere sight of the accused may induce an element
of extreme fear in the mind of the victim or the witnesses
9
(2004) 5 SCC 518Page 28
28
or can put them in a state of shock. In such a situation he
or she may not be able to give full details of the incident
which may result in miscarriage of justice. Therefore, a
screen or some such arrangement can be made where the
victim or witnesses do not have to undergo the trauma of
seeing the body or the face of the accused. Often the
questions put in cross-examination are purposely designed
to embarrass or confuse the victims of rape and child
abuse. The object is that out of the feeling of shame or
embarrassment, the victim may not speak out or give
details of certain acts committed by the accused. It will,
therefore, be better if the questions to be put by the
accused in cross-examination are given in writing to the
Presiding Officer of the Court, who may put the same to
the victim or witnesses in a language which is not
embarrassing. There can hardly be any objection to the
other suggestion given by the petitioner that whenever a
child or victim of rape is required to give testimony,
sufficient breaks should be given as and when required.
The provisions of sub-section (2) of section 327 Cr.P.C.
should also apply in inquiry or trial of offences under
Section 354 and 377 IPC.”
39. In State v. Sanjeev Nanda10, the Court felt constrained in reiterating the
growing disturbing trend:
“99. Witness turning hostile is a major disturbing factor
faced by the criminal courts in India. Reasons are many for
the witnesses turning hostile, but of late, we see,
especially in high profile cases, there is a regularity in the
witnesses turning hostile, either due to monetary
consideration or by other tempting offers which undermine
the entire criminal justice system and people carry the
impression that the mighty and powerful can always get
away from the clutches of law thereby, eroding people’s
faith in the system.
100. This court in State of U.P. v. Ramesh Mishra and Anr.
[AIR 1996 SC 2766] held that it is equally settled law that
the evidence of hostile witness could not be totally
rejected, if spoken in favour of the prosecution or the
accused, but it can be subjected to closest scrutiny and
that portion of the evidence which is consistent with the
case of the prosecution or defence may be accepted. In K.
10 (2012) 8 SCC 450Page 29
29
Anbazhagan v. Superintendent of Police and Anr., (AIR
2004 SC 524), this Court held that if a court finds that in
the process the credit of the witness has not been
completely shaken, he may after reading and considering
the evidence of the witness as a whole with due caution,
accept, in the light of the evidence on the record that part
of his testimony which it finds to be creditworthy and act
upon it. This is exactly what was done in the instant case
by both the trial court and the High Court and they found
the accused guilty.
101. We cannot, however, close our eyes to the disturbing
fact in the instant case where even the injured witness,
who was present on the spot, turned hostile. This Court in
Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi), (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v.
State of Gujarat, AIR 2006 SC 1367, had highlighted the
glaring defects in the system like non-recording of the
statements correctly by the police and the retraction of the
statements by the prosecution witness due to intimidation,
inducement and other methods of manipulation. Courts,
however, cannot shut their eyes to the reality. If a witness
becomes hostile to subvert the judicial process, the Courts
shall not stand as a mute spectator and every effort should
be made to bring home the truth. Criminal judicial system
cannot be overturned by those gullible witnesses who act
under pressure, inducement or intimidation. Further,
Section 193 of the IPC imposes punishment for giving
false evidence but is seldom invoked.”
40. On the analysis of various cases, following reasons can be discerned
which make witnesses retracting their statements before the Court and
turning hostile:
“(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.Page 30
30
(vi) Hassles faced by the witnesses during investigation
and trial.
(vii) Non-existence of any clear-cut legislation to check
hostility of witness.”
41. Threat and intimidation has been one of the major causes for the
hostility of witnesses. Bentham said: “witnesses are the eyes and ears
of justice”. When the witnesses are not able to depose correctly in the
court of law, it results in low rate of conviction and many times even
hardened criminals escape the conviction. It shakes public confidence
in the criminal justice delivery system. It is for this reason there has
been a lot of discussion on witness protection and from various quarters
demand is made for the State to play a definite role in coming out with
witness protection programme, at least in sensitive cases involving those
in power, who have political patronage and could wield muscle and
money power, to avert trial getting tainted and derailed and truth
becoming a casualty. A stern and emphatic message to this effect was
given in Zahira Habibullah's case as well.
42. Justifying the measures to be taken for witness protection to enable the
witnesses to depose truthfully and without fear, Justice Malimath
Committee Report on Reforms of Criminal Justice System, 2003 has
remarked as under:
“11.3 Another major problem is about safety of witnesses
and their family members who face danger at different
stages. They are often threatened and the seriousness ofPage 31
31
the threat depends upon the type of the case and the
background of the accused and his family. Many times
crucial witnesses are threatened or injured prior to their
testifying in the court. If the witness is still not amenable he
may even be murdered. In such situations the witness will
not come forward to give evidence unless he is assured of
protection or is guaranteed anonymity of some form of
physical disguise…Time has come for a comprehensive
law being enacted for protection of the witness and
members of his family.”
43. Almost to similar effect are the observations of Law Commission of India
in its 198th Report11, as can be seen from the following discussion
therein:
“The reason is not far to seek. In the case of victims of
terrorism and sexual offences against women and
juveniles, we are dealing with a section of society
consisting of very vulnerable people, be they victims or
witnesses. The victims and witnesses are under fear of or
danger to their lives or lives of their relations or to their
property. It is obvious that in the case of serious offences
under the Indian Penal code, 1860 and other special
enactments, some of which we have referred to above,
there are bound to be absolutely similar situations for
victims and witnesses. While in the case of certain
offences under special statutes such fear or danger to
victims and witnesses may be more common and
pronounced, in the case of victims and witnesses involved
or concerned with some serious offences, fear may be no
less important. Obviously, if the trial in the case of special
offences is to be fair both to the accused as well as to the
victims/witnesses, then there is no reason as to why it
should not be equally fair in the case of other general
offences of serious nature falling under the Indian Penal
Code, 1860. It is the fear or danger or rather the likelihood
thereof that is common to both cases. That is why several
general statutes in other countries provide for victim and
witness protection.”
44. Apart from the above, another significant reason for witnesses turning
11 Report on 'witness identity protection and witness protection programmes'Page 32
32
hostile may be what is described as 'culture of compromise'.
Commenting upon such culture in rape trials, Pratiksha Bakshi12 has
highlighted this problem in the following manner:
“During the trial, compromise acts as a tool in the hands of
defence lawyers and the accused to pressurise
complainants and victims to change their testimonies in a
courtroom. Let us turn to a recent case from Agra wherein
a young Dalit woman was gang-raped and the rapist let off
on bail. The accused threatened to rape the victim again if
she did not compromise. Nearly a year after she was
raped, she committed suicide. While we find that the
judgment records that the victim committed suicide
following the pressure to compromise, the judgment does
not criminalise the pressure to compromise as criminal
intimidation of the victim and her family. The normalising
function of the socio-legal category of compromise
converts terror into a bargain in a context where there is
no witness protection programme. This often accounts for
why prosecution witnesses routinely turn hostile by the
time the case comes on trial, if the victim does not lose the
will to live.
In other words, I have shown how legality is
actually perceived as disruptive of sociality; in this
instance, a sociality that is marked by caste based
patriarchies, such that compromise is actively perceived,
to put it in the words of a woman judge of a district court,
as a mechanism for ‘restoring social relations in society’.”
45. In this regard, two articles by Daniela Berti delve into a sociological
analysis of hostile witnesses, noting how village compromises (and
possibly peer pressure) are a reason for witnesses turning hostile. In
one of his articles13, he writes:
“For reasons that cannot be explained here, even the
people who initiate a legal case may change their minds
12 In Justice is a Secret : Compromise in Rape Trials”
13 Daniela Berti : Courts of Law and Legal Practice (pp. 6-7)Page 33
33
later on and pursue non-official forms of compromise or
adjustment. Ethnographic observations of the cases that
do make it to the criminal courtroom thus provide insight
into the kinds of tensions that arise between local society
and the state judicial administration. These tensions are
particularly palpable when witnesses deny before the
judge what they allegedly said to the police during
preliminary investigations. At this very moment they often
become hostile. Here I must point out that the problem of
what in common law terminology is called “hostile
witnesses” is, in fact, general in India and has provoked
many a reaction from judges and politicians, as well as
countless debates in newspaper editorials. Although this
problem assumes particular relevance at high-profile,
well-publicized trials, where witnesses may be politically
pressured or bribed, it is a recurring everyday situation
with which judges and prosecutors of any small district
town are routinely faced. In many such cases, the hostile
behavior results from various dynamics that interfere with
the trial's outcome – village or family solidarity, the sharing
of the same illegal activity for which the accused has been
incriminated (as in case of cannabis cultivation), political
interests, family pressures, various forms of economic
compensation, and so forth. Sometimes the witness
becomes “hostile” simply because police records of his or
her earlier testimony are plainly wrong. Judges themselves
are well aware that the police do write false statements for
the purpose of strengthening their cases. Though well
known in judicial milieus, the dynamics just described have
not yet been studied as they unfold over the course of a
trial. My research suggests, however, that the witness's
withdrawal from his or her previous statement is a crucial
moment in the trial, one that clearly encapsulates the
tensions arising between those involved in a trial and the
court machinery itself.”
“In my fieldwork experiences, witnesses become “hostile”
not only when they are directly implicated in a case filed by
the police, but also when they are on the side of the
plaintiff's party. During the often rather long period that
elapses between the police investigation and the trial itself,
I often observed, the party who has lodged the complaint
(and who becomes the main witness) can irreparably
compromise the case with the other party by means of
compensation, threat or blackmail.”
46. Present case appears to have been stung by 'culture of compromise'.
Fortunately, statement of PW-4 in attempting to shield the accused
Ramesh has been proved to be false in view of the records of PGIMS,
Rohtak and, therefore, we held that High Court was right in discarding
his testimony.
47. We, thus, do not find any merit in this appeal, which is accordingly
dismissed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(AMITAVA ROY)
NEW DELHI;
NOVEMBER 22, 2016.
Print Page

No comments:

Post a Comment