SMT. PANIBEN v. STATE OF GUJARAT

On the night of 7th May, 1977, at about midnight, the deceased was sleeping all alone in the 'osri' of the House. The accused went there, poured kerosene on her person, and as the deceased got up, the accused lit the fire and left the 'osri'. The deceased shouted for help and hearing her shouts, her husband and other collected there and the fire was e:xtin- guished. She was removed to the hospital in the cart. In ihe cart, she told some witnesses that ht>r mother-in-law had burnt her. Later on, she was H G 197 ... _>., )-.. 198 SUPREME COURT REPORTS (1992] 2 S.C.R: A B c D taken to the Government hospital in a taxi in a burnt condition. The police constable on duty informed the Taluka police station and the .Head Con stable made an entry in tlie police station diary, and another Head Con stable went to the hospital and recorded the statement of the deceased in the early hours. In that statement, she stated that her mother-in-law had burnt her. The Head Constable wrote a 'yadi' for a dying declaration to the Executive Magistrate who reached the hospital at about 7.00 A.M. on 18.5.1977, and recorded the dying declaration Ex.29. In this declaration also, the deceased stated that she was burnt by the accused. The Police Sub-Inspector who took up the investigations, went to the scene of oc- curence, made the panchnama of the scene of occurrence and recorded the statement of witnesses. He also recorded a statement of the deceased on 19.5.1977. In that also, the deceased stated that she was burnt by her . mother-in-law. The Sub-Inspector arrested the accused on 18.5.1977. The deceased succumbed to the injuries on 20.5.1977. On completing the neces sary investigations, the accused was charge-sheeted and committed before the Sessions Judge. The Sessions Judge came to the conclusion that the deceased might have committed suicide, that it was also probable that someone else might have burnt her alive, because she had a grievance against her mother-in law she implicated her in the dying declaration. The dying declarations, E hence could not be accepted having regard to this inherent infirmity. On these findings it was held that the prosecution had failed to prove that the deceased was burnt alive by the accused, and the accused was acquitted. F The State appealed to the High Court, and a Division Bench con- sidered the circumstances under which the dying declarations were recorded. It found that the dying declaration Ex. 24 clearly showed as to how the occurrence had taken place. The second dying declaration Ex. 29 was recorded in a question and answer form that there was no scope for tutoring the deceased for giving any statement which would involve the accused, and that at that time, the deceased was all right and she was in G a position to give the dying declaration. The third dying declaration was made to the deceased's father who was a truthful witness and clearly establishes that there was no scope of parents tutoring the deceased in any way. The findings of the Trial Court it was held could not be accepted with _ reference to the various aspects like enmity between the mother-in-law and -~ H ... .the.::<le~eased, the failure of the deceased to narrate the incident to her SMT. PANIBEN v. STATE 199 husband, and was not prepared to believe that the deceased attempted to A commit suicide and only for revenge involved the accussed falsely. In the result, the order of acquittal was set aside, the accussed was held guilty of the offence of murder and was convicted under Section 302 I.P.C. and sentenced to imprisonment for life; It was, however, recommended th~t the Government consider the case favourably on the aspect of remission of B sentence under Section 432 of the Code of Criminal Procedure. In the appeal to this Court, it was contended on behalf of the appellant that the High Court was not justified in convicting the accused purely on the dying declarations which bristle with many contradictions and improve from stage to stage, and that having regard to the fact that C the relationship between the mother-in- law and the daughter-in-law, was far from cordial the deceased had every motive to implicate the mother in-law. It was also contended that the appellant was 58 years of age and that baving spent more than a decade in jail, the appeal calls for inter ference on the ground of sentence. D Dismissing the appeal, and upholding the conviction and sentence, this Court HELD 1. The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the E reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination and dispensed with. Be sides, should the dying declaration be excluded it will result in mis-car riage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. [205E] F

#2. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declara- G tion should be of such a nature as to inspire full confidence of the Court in the correctness. [205F]

#3. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind H 200 SUPREME COURT REPORTS [1992] 2 S.C.R. A after a clear opportunity to observe and identify the assailants. [205G] Y

#4. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it. can base its conviction without any further corroboration. 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 corroborated. The rule requiring corroboration is merely a rule of prudence. [205H] B

#5. If the plurality of dying declarations could be held to be truth worthy and reliable, they have to be accepted. [207E] c In the instant case there are four dying declarations. The first dying declaration is Ex. 24 recorded by a Head Constable who wrote down the statement as deposed by the deceased. At that time, the deceased was conscious. The second dying declaration is Ex. 29 and was recorded by the Taluka Magistrate in question and answer form. There was no possibility D of the deceased being tutored, prompted as to utter falsehood, so as to implicate the accused. It is also clear when she made the statement, she was in a fit mental condition. The third oral dying declaration was made by the deceased to her father who has impressed the High Court as a truthful witness. The fourth dying declaration Ex. 34 recorded by the police sub-inspector has been rightly rejected by the High Court. The High Court was fully justified in accepting the dying declarations because they answer every test which is required to be accepted for such acceptance. E }... [207E, H; 208 D, E, G] In the instant case, the theory of suicide has been rightly rejected by the Court. A tender lass after only five years of married life with an affectionate husband and a young daughter to foster could not have resorted to that rash act merely because there were quarrels between her and her mother-in-law. In every house it is proverbial that such quarrels ~ ...,.__ do take place. It is impossible to contend that the deceased was so much frustrated in life so as to commit suicide. [208H-209D] ) F G

#6. It would be a traversity of justice if sympathy is shown when such a cruel act is commited. It is rather strange th~t the mother-in-law who herself is a woman should resort to killing another women. It is hard to fathom as to why even the "mother" in her did not make her feel. It is tragic, H deep rancour should envelop her reason and drown her finer feelings. The SMT. PANIBEN v. STATE [MOHAN, J.] 201 language of deterrance must speak in that it may be a conscious reminder A to the society. Undue sympathy would be harmful to the cause of justice. It may even undermine the confidence in the efficacy of law. [209C-D]

#7. Merely because the accused has spent more. than a decade in jail is no justification to show any leniency. [209E] B Mannu Raja v. State of M.P., (1976] 2 SCR 764; State of M.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164; Ram Chandra Reddy v. Public Prosecutor, AIR 1976 S.C. 1994; Rasheed Beg v. State of Madhya Pradesh, (1974] 4 S.C.C. 264; Kake Singh v. State of M.P., AIR 1982SC1021; Ram Manorath v. State of H.P., 1981 SCC (Crl.) 531; C State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617; Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505; Nanahau Ram and another v. State, AIR 1988 SC 912; State of H.P. v. Madan Mohan, AIR 1989 S.C.1519; Mohan Lal v. State of Maharashtra, AIR 1982, S.C. 839, referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. D 487of1980. From the Judgment and Order dated 17/18-4-80 of the Gujarat High Court in Crl. A. No. 885 of 1978. Vimal Dave for the Petitioner. E R.N. Sachthey and Anip Sachthey for the Respondent. The Judgment of the Court was delivered by MOHAN, J. Everytime a case relating to dowry death comes up, it F causes ripples in the pool of the conscience of this Court. Nothing could be more barbarous, nothing could be more heinous than this sort of crime. The root cause for killing young bride or daughter-in-law is avarice and greed. All tender feelings which alone make the humanity noble disappear from the heart. Kindness which is the hallmark of human culture is buried. G Sympathy to the fairer sex, the minimum sympathy is not even shown. The seedling which is uprooted from its original soil and is to be planted in another soil to grow and bear fruits is crushed. With this prefatory note, we pass on to the matrix of facts. The criminal appeal is directed against the conviction of the appel- H ' 202 SUPREME COURT REPORTS [1992] 2 S.C.R. A lant under Section 302 of Indian Penal Code and sentencing her to life imprisonment reversing the acquittal by the Trial Court. The case of the Prosecution shortly is as under: Bai Kanta was married to Valji Savji sometime in the year 1972. B Accused is the mother-in-law of Bai Kanta. There were frequent quarrels between the mother-in-law and the daughter-in-law. Once Bai Kanta on account of quarrel went away to her parent's house. Accused went to the house of Bai Kanta to bring her back. The father-in-law of Bai Kanta gave an assurance that nothing would go wrong. On this assurance, Bai Kanta was sent to the house of Accused. The accused, Bai Kanta and her husband c were all living in the same house. Even after the return, there used to be quarrels between the accused and Bai Kanta. The acccused developed profound dislike for Bai Kanta. On the night of 7th May, 1977 at about 12 mid night, Bai Kanta was sleeping all alone in the 'osri' of the house. The accused went there, poured kerosene on her person. Bai Kanta got up as D she felt the kerosene was being poured and meanwhile the accused lit fire and left the 'osri'. Bai Kanta shouted for help. Hearing the shouts, the husband and others collected there and the fire was extinguished. She was removed to the hospital in the cart. In the cart, she had _told witnessess Ratnabhai, Savji Dahya, Shantaben, Valji Ben and others that her mother- in-law had burnt her. Up to the Gadhka village, she was taken in the cart. Lateron, she was brought to Rajkot Government hospital in a taxi in burnt condition. The police constable on duty at the hospital informed Taluka police station about Bai Kanta having been brought to the hospital in burnt condition. So, Head Constable Kanji Ukabhai who was in-charge of the police station made an entry in the police station diary. He directed Head F Constable Abhal Mamaiya to go the hospital and enquire into this matter. Accordingly- Head Constable Abhal Mamaiya went to the hospital and recorded the statement of Bai Kanta in the early hours. It was stated by her that the mother-in-law burnt her. Abhal Mamaiya worte a yadi for dying declaration to the Executive Magistrate which was received by him at 6 a.m. Abhal Mamaiya, thereafter filed a complaint on the strength of the statement of the deceased and the investigation started. The Executive Magistrate reached the hospital at about 7.10 a.m. on 18.5.1977. He recorded the dying declaration Ex. 29. In that declaration also, Bai Kanta stated she was burnt by the accused. Police Sub-Inspector Tavde of Rajkot Taluka police station took up the investigation; went to the seen of occur- rence; made the panchnama of the scene of occurrence; recorded the G E H ...,, ~,- ~- -- 1 - 1 SMT. PANIBEN v. STATE [MOHAN, J.] 203 statement of witnesses. He arrested the accused in the evening. He also A recorded the statement of Bai Kanta on 19.5.1977. In that also, Bai Kanta stated, she was burnt by her mother-in-law, the accused. The Sub-Inspector Tavde arrested the accused at about 6.45 p.m. on 18.5.1977. Bai Kanta succumbed to the injuries on 20.5.1977 at 0045 hours. Thereafter, post-mor- tem was carried out. B On completing the necessary investigation, the accused was charge sheeted and after committal, she was tried by the learned Sessions Judge of Rajkot in Sessions Case No. 34 of 1977. On consideration of the evidence, the learned Sessions Judge came C to the conclusion that the deceased might have committed suicide. Besides, it was also probable that someone else might have burnt her alive. Because she had a grievance against her mother-in-law, in the dying declaration she implicated her. Hence, the dying declarations could not be accepted having regard to the inherent infirmity. Accordingly, it was held that the prosecution has failed to prove that the deceased was burnt alive by the D accused. Thus it ended in acquittal. The State took up the matter in Criminal Appeal No. 885 of 1978 to the High Court of Gujarat. The Division Bench considered the circumstan- ces under which the dying declarations were recorded. It found that the E dying declaration Ex. 24 clearly shows as to how the occurrence had taken place. The second dying declaration Ex. 29 which was recorded in question and answer form. There was no scope of tutoring the deceased for giving any statement which would involved the accused. At that time the deceased was allright and she was in a p.osition to give the dying declaration. The third dying declaratiou made by the deceased's father Jadav who was a truthful witness, clearly establishes there was no scope of p(l!ents tutoring the deceased in any way. It was further held that the findings of the Trial Court could not be accer!cd with reference to the various aspects like enimity between the mother-in-law and the deceased, the appreciation of the statement of deceased, the failure of the deceased to narrate the incidence to her husband. F G H 204 SUPREME COURT REPORTS [1992) 2 S.C.R. B A The High Court considered the legal position whether the accused could be convicted on the basis of dying declaration in the light of relevant case law. It ultimately held that the deceased was young girl aged about 18 years who had a married life of only 5 years to her share with all hopes of living a happy married life in future with her husband who was affectionate towards her. She had also a young daughter aged about 2:V2 years. Except the relationship with her mother-in-law, she was quite happy. There was no possibility of her coming to a conclusion that she must end her life. There was no indication that the deceased was so harassed as to have lost her self-control so as to commit suicide. Thus, the High Court was not prepared to believe that the deceased attempted to commit suicide and c only for the revenge, she involved the accused falsely. In the result, the order of acquittal was set-aside. The accused was held guilty of the offence of murder. She was convicted under section 302 of Indian Penal Code and sentenced to imprisonment for life. However, it was recommended to the Government to consider her case favourably on the aspect of remission of .,... _,,.-· _,.._~ ~ D her sentence under Section 432 of the Code of Criminal Procedure. Special leave petition was directed to be treated as petition of appeal by an order dated 6.8.1980 passed by this Court. Under these circumstan- ces, the criminal appeal comes before us. E F The learned counsel for the appellant vehemently urged that the High Court was not justified in convicting the accused basing purely the dying declarations which bristles with so many contradictions and improve- ments from stage to stage. Having regard to the fact that relationship between the mother-in-law and the daughter-in-law was far from cardial, the deceased had every motive to implicate the mother-in-law. Normally speaking deceased would not have failed to narrate this incidence to her husband who was affectionate to her. Besides, there were also several other infirmities pointed out by the learned Sessions Judge who had acquitted the accused. That acquittal should not have been interfered with. }... .... ) ...__ G In any event, the accused at the time of the judgment of the High Court itself was 58 years of age. She having spent more than a decade in jail, the appeal calls for interference on sentence. -'!> The learned counsel appearing for the respondent State submits: the High Court has considered fully each and every aspect after administering to it the caution that an order of acquittal cannot be interfered with lightly. i H SMT. PANIBEN v. STATE [MOHAN, JJ 205 It analysed the three dying delcarations. There again, it had in the forefront A the law that it could not be safe to hold an accused guilty solely on the basis of dying declaration. After doing so, it found that the implication of the mother-in-law who was real offender was not on account of enimity. It considered the other aspect as to why the husband was not informed and the so called infirmities pointed out by the Sessions Court. In the light of B the decision of this Court, it was found that the dying delcaration ought to be accepted and rightly convicted the accused. Having regard to the drastic nature of the crime, even on sentence, no sympathy can be shown. This is a case where the basis of conviction of the accused is the three dying declarations. The principle on which dying declarations are admitted in evidence is indicated in legal maxim. c "nemo moriturus proesumitur mentiri-a man will not meet his Maker with a lie in his mouth". D The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, E should the dying declaration be excluded it will result in. mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is F worthwhile lo note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagina- G tion. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration H 206 SUPREME COURT REPORTS [1992] 2 S.C.R. cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: )" - (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Mannu Raja v. State of M.P., [1976) 2 SCR 764.