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Sec. 498 A . .304 B and 302 I.P.C – ACQUITTED UNDER SEC.498 A, 304 B – No conviction under sec.302 I.P.C. be given on doubting dying declaration – Apex court held that The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. After considering the evidence and the judgments of the Courts below, we are of the considered opinion that the evidence available on record and the dying declaration does not inspire confidence in the mind of this Court to make it the basis for the conviction of the appellants. Apart from this, the High Court basing on the same dying declaration, ought not to have convicted the appellants under Section 302 IPC, when they were acquitted under Section 304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by the High Court. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed by the High Court vide its judgment dated 24th September, 2010 in Criminal Appeal No. 495 of 2005, against the appellants for the offence under Section 302 r/w 34 IPC, is set aside. = UMAKANT & ANR. … APPELLANTS VERSUS STATE OF CHHATISGARH … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743

Sec. 498 A . .304 B and 302 I.P.C – ACQUITTED UNDER SEC.498 A, 304 B – No conviction under sec.302 I.P.C.  be given on  doubting dying declaration – Apex court held that The burden of proof in criminal law is beyond  all  reasonable  doubt. The prosecution has to prove the guilt of the accused beyond all  reasonable doubt and it is also rule of justice in criminal law that if two  views  are possible on the evidence adduced in the case, one pointing to the  guilt  of the accused  and  the  other  towards  his  innocence,  the  view  which  is favourable  to  the  accused  should  be  adopted.   After  considering  the evidence and the judgments of the Courts below, we  are  of  the  considered opinion that the evidence available on  record  and  the  dying  declaration

does not inspire confidence in the mind of this Court to make it  the  basis for the conviction of the appellants.   Apart  from  this,  the  High  Court basing on the same dying  declaration,  ought  not  to  have  convicted  the appellants under Section 302 IPC, when they  were  acquitted  under  Section 304-B and 498-B IPC and Sections 3 and 4 of the  Dowry  Prohibition  Act  by

the High Court. Accordingly, this Criminal Appeal  is  allowed.   The  conviction  and sentence imposed by the High Court vide its judgment dated  24th  September, 2010 in Criminal Appeal No. 495 of 2005,  against  the  appellants  for  the offence under Section 302 r/w 34  IPC,  is  set  aside. =

 certain   guidelines   while

considering a dying declaration:

1. Dying declaration can be the sole basis of conviction if  it  inspires

full confidence of the Court.

2. The Court should be satisfied that the deceased was in a fit state  of

mind at the time of making the statement  and  that  it  was  not  the

result of tutoring, prompting or imagination.

3. Where the  Court  is  satisfied  that  the  declaration  is  true  and

voluntary,  it  can  base   its   conviction   without   any   further

corroboration.

4. It cannot be laid down as an absolute  rule  of  law  that  the  dying

declaration cannot form the sole basis  of  conviction  unless  it  is

corroborative.  The rule requiring corroboration is merely a  rule  of

prudence.

5. Where the dying declaration is suspicious, it should not be acted upon

without corroborative evidence.

6. A dying declaration  which  suffers  from  infirmities,  such  as  the

deceased was unconscious and could never  make  any  statement  cannot

form the basis of conviction.

7. Merely because a dying declaration does not contain all the details as

to the occurrence, it is not to be rejected.

8. Even if it is a brief statement, it is not to be discarded.

9. When the eye-witness affirms that the deceased was not in  a  fit  and

conscious state to make the dying declaration, medical opinion  cannot

prevail.

10. If after careful scrutiny the Court is satisfied that it is free from

any effort to induce the deceased to make a false statement and if it

is coherent and consistent, there shall be  no  legal  impediment  to

make it basis of conviction, even if there is no corroboration.

21.    In  the  light  of  the  above  legal  position  that   governs   the

consideration  of  a  dying  declaration,  the  factual  matrix  has  to  be

scrutinised. As already extracted above, in the dying  declaration  Ex.P-13,

the deceased stated before  the  Magistrate  that  the  appellants  demanded

dowry and that the appellants set fire to her and she asked her  brother-in-

law to rescue her, but he had chosen not to do so, and  further  on  hearing

her cries, the neighbours came and extinguished the fire  and  admitted  her

in the hospital.  After she was admitted in the hospital, her  parents  came

and she informed them about the incident.=

The deceased is said to have stated that when she was pregnant she was

beaten up by the accused and because of which the child died  in  the  womb.

At that time, she had taken treatment in Revival Hospital].  This  statement

is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not  in  Ex.P13

dying declaration.

22.   When we look at the dying declaration, it is not inspiring  confidence

in the mind of this Court and throws  serious  doubt  that  the  same  is  a

product of tutoring by the family members of the  deceased  for  the  reason

that, the sister of the deceased who  was  present  when  the  deceased  was

admitted in the hospital had signed in Ex.P-2 wherein it is stated  that  it

was an accident and nobody has burnt the  deceased,  but  later  she  turned

around and stated that unless she signed on that, they were  told  that  the

deceased would not be treated, and the High Court has taken this  fact  into

consideration, whereas in the dying declaration,  the  deceased  has  stated

that when her parents came to the hospital on 06.08.2003, she  informed   to

the parents for the first time and she had not mentioned that  she  informed

her sister or anybody before that,  but  according  to  the  sister  of  the

deceased, on 02.08.2003, she  was  aware  of  this,  which  shows  that  the

evidence of the witness is not reliable and clouded with doubt.

23.   The other circumstances which draw our attention is when the  deceased

informed her parents on 06.08.2003, it is quite  natural  that  the  parents

will inform the police about the incident, because it is nobody’s case  that

they were restrained in any manner from  informing  the  police.   Even  the

deceased throughout the stay in the hospital for those 11 days had  many  an

occasion to meet the Doctors and other staff of the hospital,  but  she  had

chosen not to give any complaint nor tried to share  her  agony  with  them,

which throws a grave doubt on the genuineness of the dying declaration.   We

have gone through the judgment of  the  High  Court,  where  P.W.7  who  has

specifically deposed that they have tutored the deceased to state  that  she

was burnt by the accused.=

24.   The High Court while considering Ex.P-2 has come to a conclusion  that

the statement given in that one line is contradictory to  one  another.   In

one line, it says that the  injuries  sustained  by  her  are  by  accident.

Nobody has  burnt  her  and  she  burnt  herself.   Hence,  the  High  Court

discarded Ex.P-2.  But, in our considered opinion, the High  Court  did  not

appreciate the same in its proper perspective and interpreted it in a  wrong

way.  What Ex.P-2 states is that it is an accident, and  nobody  has  pushed

her and for that accident, only the deceased is responsible.

The burden of proof in criminal law is beyond  all  reasonable  doubt.

The prosecution has to prove the guilt of the accused beyond all  reasonable

doubt and it is also rule of justice in criminal law that if two  views  are

possible on the evidence adduced in the case, one pointing to the  guilt  of

the accused  and  the  other  towards  his  innocence,  the  view  which  is

favourable  to  the  accused  should  be  adopted.   After  considering  the

evidence and the judgments of the Courts below, we  are  of  the  considered

opinion that the evidence available on  record  and  the  dying  declaration

does not inspire confidence in the mind of this Court to make it  the  basis

for the conviction of the appellants.   Apart  from  this,  the  High  Court

basing on the same dying  declaration,  ought  not  to  have  convicted  the

appellants under Section 302 IPC, when they  were  acquitted  under  Section

304-B and 498-B IPC and Sections 3 and 4 of the  Dowry  Prohibition  Act  by

the High Court.

26.   Accordingly, this Criminal Appeal  is  allowed.   The  conviction  and

sentence imposed by the High Court vide its judgment dated  24th  September,

2010 in Criminal Appeal No. 495 of 2005,  against  the  appellants  for  the

offence under Section 302 r/w 34  IPC,  is  set  aside.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743 – for full text – LAW FOR ALL

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