Naresh Kumar vs Kalawati on 25 March, 2021


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Supreme Court of India

Naresh Kumar vs Kalawati on 25 March, 2021

Author: Navin Sinha

Bench: Navin Sinha, Ajay Rastogi

                                                                       NON­REPORTABLE

                                   IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL APPEAL NO. 35 OF 2013


     Naresh Kumar                                                     .....APPELLANT(S)

                                                      Vs.

     Kalawati and others                                              .....RESPONDENT(S)


                                              JUDGMENT

NAVIN SINHA, J.

The appellant, brother of the deceased, is in appeal

challenging the acquittal of respondents nos. 1 and 2, the sister­in­

law and husband of the deceased, of the charge under Sections

498A and 302/34 I.P.C., affirmed by the High Court.

2. The deceased suffered 95% burn injuries on 17.09.1991 at

about 4:30 pm and succumbed in the hospital the next day. There

is no eye­witness account. The case of the prosecution is based on

circumstantial evidence consisting of the dying declaration of the
Signature Not Verified

deceased.

Digitally signed by
Rachna
Date: 2021.03.25
16:40:57 IST
Reason:

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3. The respondents were acquitted as the dying declaration was

held not to have been proved in accordance with law and it did not

inspire confidence. It vacillated between blaming the husband and

the sister­in­law, coupled with the absence of any certificate by the

Doctor that the deceased was in a fit state of mind when she made

the dying declaration.

4. Shri Rajendra Singhvi, learned counsel for the appellant,

submitted that the deceased suffered a homicidal death by burns in

the matrimonial home within seventeen months of her marriage.

P.W. 13, the Sub­Inspector in the police control room had deposed

that P.W. 20, the constable posted in the hospital had informed that

the deceased had stated that she had been put on fire by her

husband, respondent no.2. The M.L.C. of the deceased recorded at

6:00 pm by Dr. Anant Sinha contained an endorsement that she

was conscious. The deceased had stated to the Doctor that she was

set ablaze by the wife of his elder brother by pouring kerosene oil

upon her while she was making tea. Soon thereafter she made

another statement to P.W. 25, the Assistant Sub­Inspector, in

presence of the said Dr. Anant Sinha, and who also signed the

statement, that her elder sister­in­law, had poured kerosene over

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her and set her on fire. The deceased was therefore not only fully

conscious, but also in a fit state of mind. Her right toe impression

was taken on her statement as her fingers had suffered burn

injuries. The mere absence of any endorsement in the dying

declaration by the Doctor with regard to fitness of the deceased to

make the statement cannot vitiate its evidentiary value. The fitness

to make the statement was certified by the Junior Resident Doctor.

None of the relatives of the deceased were present at that time.

The mere failure of the prosecution to examine Dr. Anant Sinha

cannot be fatal to disbelieve the dying declaration and acquit the

respondents. The signature of Dr. Anant Sinha has been proved by

P.W. 19, the record clerk of the hospital. The appellant had made

all efforts to have the Doctor summoned. P.Ws. Nos. 3, 4 and 5, the

mother, the sister and the appellant, have also stated that the

deceased had told them in the hospital that she was set on fire by

her sister­in­law. Respondent Nos. 1 and 2 were having an illicit

affair and they considered the deceased as an obstruction because

she was objecting to the same. The respondents have wrongly been

given the benefit of doubt that the deceased had committed suicide.

The respondents have also wrongly been acquitted of the charge

under Section 498A. Reliance was placed upon State of

3
Rajasthan vs. Parthu
(2007) 12 SCC 754, Sukanti Moharana vs.

State of Orissa (2009) 9 SCC 163 and Heeralal vs. State of

Madhya Pradesh (2009) 12 SCC 671 in support of the dying

declaration.

5. Shri Ramesh Gupta, learned Senior Counsel appearing for

respondent nos.1 and 2 submitted that according to the M.L.C., the

deceased was only stated to be conscious. There is no evidence

that she was fully oriented with a fit state of mind to make a dying

declaration. There is no endorsement by the said Dr. Anant Sinha

that the deceased was in a fit state of mind to make the declaration

and that he was present during recording of the same. The

deceased initially named her husband alone as the person who set

her on fire. There was no reference to the sister­in­law or any

demand for dowry. Subsequently she stated that she had been

brought to the hospital by her husband and that she had been set

on fire by her sister­in­law. Initially the deceased did not name

respondent no.1 to the Doctor at the time of M.L.C., but only stated

that she was set on fire by her sister­in­law. The husband lived

along with his three brothers and their wives. Subsequently she

named respondent no.1 in her statement to P.W. 25. The

respondents had taken the defence that the deceased suspected
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promiscuous relationship between them and was also frustrated by

her inability to conceive and therefore committed suicide by setting

herself on fire. The view taken by two courts being a reasonably

possible view does not call for interference by this Court. No one

has appeared on behalf of the State­respondent no.3.

6. We have considered the submissions on behalf of the parties

and have also perused the evidence available on the record.

Though the discretionary jurisdiction of this Court under Article

136 of the Constitution is very wide, it has been a rule of practice

and prudence not to interfere with concurrent finding of facts ar­

rived at by two courts, by a reappreciation of evidence, to arrive at

its own conclusion, unless there has been complete misappreciation

of evidence, or there is gross perversity in arriving at the findings,

causing serious miscarriage of justice. If the view taken by two

courts is a reasonably possible view, this Court would be reluctant

to interfere with a concurrent order of acquittal. In State of Goa

vs. Sanjay Thakran & Ors., (2007) 3 SCC 755, it was observed:

“16. From the aforesaid decisions, it is apparent that
while exercising the powers in appeal against the or­
der of acquittal the court of appeal would not ordinar­
ily interfere with the order of acquittal unless the ap­
proach of the lower court is vitiated by some manifest
illegality and the conclusion arrived at would not be
arrived at by any reasonable person and, therefore,
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the decision is to be characterised as perverse. Merely
because two views are possible, the court of appeal
would not take the view which would upset the judg­
ment delivered by the court below. However, the ap­
pellate court has a power to review the evidence if it is
of the view that the view arrived at by the court below
is perverse and the court has committed a manifest
error of law and ignored the material evidence on
record. A duty is cast upon the appellate court, in
such circumstances, to reappreciate the evidence to
arrive at a just decision on the basis of material
placed on record to find out whether any of the ac­
cused is connected with commission of the crime he is
charged with.”

7. We shall now consider the facts of the present case in the

background of the aforesaid enunciation of the law, to examine if

the impugned orders call for interference by us, or not. The

deceased was married to respondent no. 2 about 1½ years ago. She

suspected a promiscuous relationship between the respondents.

The deceased even after 1½ of marriage was unable to conceive. A

probable defence has been taken that she committed suicide out of

frustration.

8. The deceased had suffered 95% burn injuries at home on

17.09.1991 at about 4:30 pm while making tea. She was brought

to Safdarjung Hospital at 6:00 pm. She is said to have initially told

the police at the hospital that she had been set on fire by her

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husband. The deceased was examined by the said Dr. Anant Sinha

at about 6:00 pm and prepared her MLC. She is stated to have told

him that she had been set on fire by the wife of her husband’s elder

brother while making tea. The MLC records her as being fully

conscious. It is signed only by the Doctor who has not been

examined. The deceased is then stated to have made a dying

declaration before P.W. 25 that she was set on fire by respondent

no.1 by pouring kerosene oil while she was making tea and that her

husband had brought her to the hospital. It bears her right toe

impression as her hands were burnt. The statement bears the

signature of Dr. Anant Sinha. His signature has been proved by

P.W. 19. But it does not bear any endorsement by the Doctor with

regard to his presence during the recording of the same and the fit

state of mind by the deceased to make the statement. P.W. nos. 3

and 4 have stated that the deceased told them that she was set on

fire by respondent no.1. P.W. 5 has stated that both the

respondents have killed his sister. He then states that the deceased

had told him she was set on fire by respondent no.1.

9. A dying declaration is admissible in evidence under Section 32

of the Indian Evidence Act, 1872. It alone can also form the basis

for conviction if it has been made voluntarily and inspires
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confidence. If there are contradictions, variations, creating doubts

about its truthfulness, affecting its veracity and credibility or if the

dying declaration is suspect, or the accused is able to create a

doubt not only with regard to the dying declaration but also with

regard to the nature and manner of death, the benefit of doubt shall

have to be given to the accused. Therefore much shall depend on

the facts of a case. There can be no rigid standard or yardstick for

acceptance or rejection of a dying declaration.

10. The first statement of the deceased made to P.W. 13 is based

on hearsay as deposed by P.W. 20 that she was set on fire by

respondent no.2. There is no reference to respondent no.1 in this

statement and neither has she said anything about dowry demand.

The next statement of the deceased, blaming respondent no.1 alone

does not name respondent no1. It is not signed by anybody and the

Doctor who recorded the statement has not been examined. Merely

because his signature has been identified by P.W. 19 cannot

establish the correctness of its contents. The next statement of the

deceased has been recorded by P.W. 25, blaming respondent no.1

alone without any allegation against respondent no.2, and on the

contrary states that she was brought to the hospital by respondent

no.2. It again does not disclose any dowry demand.
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11. P.W. 25 who recorded the dying declaration does not state that

the deceased was in a fit state of mind to make the statement. He

states that the Doctor had certified fitness of mind of the deceased,

when the dying declaration itself contains no such statement. In

cross examination he acknowledges that the fitness of the deceased

was certified by a resident junior doctor separately but whose

signature and endorsement is not available on the dying

declaration. At this stage it is relevant to notice the statement of

P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in

his presence and that at times doctors would come and put their

signatures in the record room.

12. In Paparambaka Rosamma and others vs. State of

Andhra Pradesh, (1999) 7 SCC 695, distinguishing between

consciousness and fitness of state of mind to make a statement, it

was observed:

“9. It is true that the medical officer Dr K. Vishnupriya
Devi (P.W. 10) at the end of the dying declaration had
certified “patient is conscious while recording the state­
ment”. It has come on record that the injured Smt
Venkata Ramana had sustained extensive burn injuries
on her person. Dr P. Koteswara Rao (P.W. 9) who per­
formed the post­mortem stated that the injured had
sustained 90% burn injuries. In this case as stated ear­
lier, the prosecution case solely rested on the dying
declaration. It was, therefore, necessary for the prose­
cution to prove the dying declaration as being genuine,

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true and free from all doubts and it was recorded when
the injured was in a fit state of mind. In our opinion,
the certificate appended to the dying declaration at the
end by Dr Smt K. Vishnupriya Devi (P.W.10) did not
comply with the requirement inasmuch as she has
failed to certify that the injured was in a fit state of
mind at the time of recording the dying declaration.
The certificate of the said expert at the end only says
that “patient is conscious while recording the state­
ment”. In view of these material omissions, it would not
be safe to accept the dying declaration (Ex. P­14) as
true and genuine and as made when the injured was in
a fit state of mind. In medical science two stages
namely conscious and a fit state of mind are distinct
and are not synonymous. One may be conscious but
not necessarily in a fit state of mind. This distinction
was overlooked by the courts below.”

13. In the facts and circumstances of the present case,

considering that the statements of the deceased have vacillated,

there is no evidence about the fitness of mind of the deceased to

make the dying declaration including the presence of the Doctor,

the veracity and truthfulness of the dying declaration remains

suspect. It would not be safe to simply reject the probable defence

of suicide, to reverse the acquittal and convict the respondents.

14. Parthu (Supra) is distinguishable on its facts. Despite the

absence of a certificate of fitness of state of mind on the dying

declaration, the Doctor was examined as a witness and proved the

fitness of the state of mind.

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15. Sukanti (supra) is again distinguishable on its own facts as

follows:

“25. Further, though no specific endorsement has
been made on the dying declaration but there is
contemporaneous evidence in the form of Ext. 9/1
which makes it clear that the Doctor recording the
dying declaration had recorded that the patient was
oriented to time and place and mentally clear at the
time of recording of the dying declaration.

xxxxxxxxx

35. The Doctor who recorded the dying
declaration was examined as a witness and he had in
his deposition categorically stated that the deceased
while making the aforesaid statement was conscious
and in a fit mental condition to make such a
statement. The aforesaid position makes it therefore
clear that the aforesaid dying declaration could be
relied upon as the same was truthfully recorded and
the said statement gave a vivid account of the
manner in which the incident had taken place.”

16. In Heeralal (supra), noticing the discrepancies in the two

dying declarations, it was held that the conviction could not be

founded upon the dying declaration.

17. The appeal is, therefore, dismissed.

………………………J.

(NAVIN SINHA)

………………………J.

(KRISHNA MURARI)
NEW DELHI,
MARCH 25, 2021

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