VIJAYAversusSTATE REP BY THE INSPECTOR OF POLICE

                         [2022] 7 S.C.R. 367                               367


                               VIJAYA                                      A
                                   v.
          STATE REP BY THE INSPECTOR OF POLICE
                 (Criminal Appeal No. 1573 of 2022)
                       SEPTEMBER 15, 2022                                  B
         [SURYA KANT AND HRISHIKESH ROY, JJ.]
        Evidence Act, 1872 – ss. 32, 157 – Code of Criminal Procedure
– s. 164 – Dying declaration – Victim survived – Statement u/s.164
Cr.P.C. – Prosecution case that appellant consumed a poisonous
                                                                           C
substance, which she also administered to her 10 months old
daughter – They were taken to hospital – Appellant’s dying
declaration was recorded – Appellant survived but her baby died –
Appellant’s husband reported matter to the police, which led to
regsitration of FIR u/ss. 302 and 309 IPC – Appellant’s husband
(PW1) and her father-in-law (PW5), both turned hostile during the          D
trial – Trial Court found the appellant guilty of the offences u/ss.
304(1) and 309 of the IPC – The appeal filed by the appellant
against the conviction was dismissed by the High Court – The
question arises for consideration before the Supreme Court, whether
it is tenable to uphold the conviction of the appellant solely on the
                                                                           E
basis of her purported dying declaration which also appears to
have been classified as a statement u/s. 164 of the Cr.P.C.,
considering that appellant has denied making any statement? –
Held: The subsequent denial by the appellant of the statement
attributed to her is of relevance – Appellant has attributed her initial
statement, when she had regained consciousness in the hospital, to         F
influencing from the police who allegedly convinced her that they
would apprehend the individuals who had offered her daughter
and her the tainted honey, and also recover the jewelry that these
unidentified persons had stolen – However, she claimed that they
asked her to remain silent about these details and simply convey
                                                                           G
that the two of them had consumed poisonous substance – This has
an impact on the genuineness of the initial statement made by the
appellant combined with the subsequent hostile turn taken by some
witnesses (PW1 and PW5) – Also, guilt of the appellant not tallying
easily with her continuing marriage to PW1 and her fostering of
two children after death of her first born – This creates a reasonable     H
                                  367
368            SUPREME COURT REPORTS                      [2022] 7 S.C.R.


A     doubt regarding appellant’s conviction – Further, there were issues
      of contention that, were not adequately addressed – The same
      benefits the appellant – Therefore, judgments of the trial Court and
      the High Court set aside.
            Allowing the appeal, the Court
B           HELD: 1. At the outset, the subsequent denial by the
      appellant of the statement attributed to her is of relevance. It
      further appears that PWs 1 & 5, appellant’s husband who is also
      the complainant, and her father-in-law, have both turned hostile.
      However, the Sessions Judge brushed aside this factor based on
C     the rationale that these individuals were, ultimately, interested
      in ensuring that the appellant was acquitted and hence resiled
      from their earlier statements which had supported her guilt. The
      trial Court opined that the prosecution version of events was,
      by far, the more plausible and logically resulted in the demise of
      the appellant’s daughter. [Para 12][373-H; 374-A-B]
D
            2. Undoubtedly there is some murkiness surrounding the
      exact circumstances in which the appellant and her daughter
      consumed a poisonous substance, Odeuvanthlai. The appellant
      has attributed her initial statement on 11.10.2012, when she had
      regained consciousness in the hospital, to influencing from the
E     police who allegedly convinced her that they would apprehend
      the individuals who had offered her daughter and her the tainted
      honey, and also recover the jewelry that these unidentified
      persons had stolen. However, she claimed that they asked her to
      remain silent about these details and simply convey that the two
F     of them had consumed poisonous substance. This sequence of
      events has been disbelieved by the Sessions Judge and the High
      Court. Be that as it may, this necessarily has an impact on the
      genuineness of the initial statement made by the appellant.
      Combined with the subsequent hostile turns taken by some of
      the vital witnesses in the trial, a seed of doubt is placed in terms
G     of the conviction of the appellant. [Paras 14 & 15][374-D-G]
           3. Thus, the focus for this Court when ascertaining
      reasonable doubt is not merely the possibility of doubt or of


H
   VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE                     369


another version of events but rather a version that survives the      A
scrutiny of an honest and conscientious judicial mind. In the
present case, it is to be noted that following the incident, the
marriage between the appellant and PW1, the complainant,
continues to subsist and that she has given birth to two minor
children. When considering the appellant’s guilt, the Sessions
                                                                      B
Judge and the High Court have not satisfactorily considered the
effect and impact of PW1 & PW’5’s failure to support the
prosecution. When considering the disputed confession by the
appellant, the bedrock on which the prosecution’s case stood
was undone but the Sessions Judge and the High Court proceeded
on what prima facie appears to be an almost unqualified               C
acceptance that the confession remained unassailable. This was
in spite of the fact that only PW8 remained to provide some degree
of corroboration regarding the prosecution’s story. The reasons
for why PW1 & PW5 turned hostile may be numerous and as
compelling as each other. While the lower courts have considered
                                                                      D
them to be interested witnesses concerned with the acquittal of
the appellant, this Court is unable to ascertain why that is a more
likely reason for their non-cooperation than the fact that they
believed the appellant was being wrongly accused and that their
initial statements were taken under duress. Undoubtedly, it is
not incumbent upon this Court, nor possible, to undertake such        E
a factual analysis at this stage. This Court can only observe that
further consideration of this point was necessary, especially in
light of the guilt of the appellant not tallying easily with her
continuing marriage to PW1 and her fostering of two children
after the tragic loss of her first born. It is the absence of an
                                                                      F
evaluation of this nuance on the record that creates a reasonable
doubt in our minds regarding appellant’s conviction. When the
facts and circumstances of a case are as peculiar as the one before
us, the judicial responsibility to scrape the bottom of the barrel
and address the specificities head on is even greater. It is in the
same vein, that this Court is compelled to observe that there         G
are issues of contention that, having not been adequately
addressed, benefit the appellant. [Paras 17-21][375-H; 376-A-
G]
      Ramprasad v. State of Maharashtra, (1999) 5 SCC 30
      : [1999] 3 SCR 519; S. Arul Raja v. State of Tamil Nadu,        H
370            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A           (2010) 8 SCC 233 : [2010] 9 SCR 356; State of
            Haryana v. Bhagirath & Ors. (1999) 5 SCC 96 : [1999]
            3 SCR 529; State of U.P. v. Veer Singh (2004) 10 SCC
            117 : [2004] 1 Suppl. SCR 790 – relied on.
                              Case Law Reference
B     [2004] 1 Suppl. SCR 790              relied on           Para 7
      [1999] 3 SCR 519                     relied on           Para 8
      [2010] 9 SCR 356                     relied on           Para 8
      [1999] 3 SCR 529                     relied on           Para 16
C
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1573 of 2022.
            From the Judgment and Order dated 19.03.2019 of the High Court
      of Judicature at Madras in Criminal Appeal No.257 of 2017.
D          S. Nagamuthu, Sr. Adv., Y. Arunagiri, M. P. Parthiban, Hardik
      Gautam, Raghunatha Sethupathy, Advs. for the Appellant.
            Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,
      Sanjeev Kumar Mahara, Advs. for the Respondent.
            The Judgment of the Court was delivered by
E
            SURYA KANT, J.
            1. Leave granted.
             2. The appellant is wife of the de-facto complainant Mani @
      Allimuthu. After about 2 years of their marriage, the couple was blessed
F     with a daughter. It appears that on account of appellant’s failure to cook
      sufficient food for her in-laws, who visited their house, a quarrel took
      place between the husband and the wife. The appellant, unfortunately,
      decided to commit suicide and consumed a poisonous substance,
      Odeuvanthlai, which she also administered to their 10 months old daughter.
      The husband of the appellant, namely, the de-facto complainant, had
G
      gone for work at that time and when he came back to his house after his
      work on 10-10-2012, he found both the appellant and their daughter
      unconscious. They were taken to Vinayaga Mission Hospital, Salem
      where the baby girl died on 13-10-2012. When the appellant gained
      consciousness, her purported Dying Declaration (Exhibit ‘P-20’) was
H     recorded on 11-10-2012 by learned Judicial Magistrate (P.W. 13). The
    VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE                          371
                     [SURYA KANT, J.]

appellant eventually survived. The husband of the appellant had             A
meanwhile reported the matter to the Police, which led to registration of
a case under Sections 302 and 309 of the Indian Penal Code (in short
‘Code’) against the appellant for causing the death of their daughter.
     3. The appellant was put on trial, in which 14 witnesses were
examined from the prosecution side, besides reliance on 23 documents.       B
       4. The Principal Sessions Judge, Namakkal found the appellant
guilty of the offences under Sections 304(1) and 309 of the Code and
sentenced her under Section 304(1) to undergo imprisonment for one
year along with fine of Rs.5,000/-, in default whereof, she was required
to undergo further imprisonment for three months. The appellant was         C
also sentenced to undergo imprisonment for six months under Section
309 of the Code along with fine of Rs.1,000/-.
      5. The appellant preferred appeal before the High Court of
Judicature at Madras, but her appeal was turned down by the High
Court on the following premise:-                                            D
      “10. On reading of the entire materials EX.P20 recorded by P.W.
      2 stated that being the dying declaration at the time when she was
      admitted in the hospital, the learned Magistrate recorded the
      statement from the appellant. The appellant has clearly admitted
      that she consumed poison due to the stomach pain and also she         E
      gave the poison to the child. The statement under Section 164 of
      Cr.P.C., made before the learned Judicial Magistrate, and the
      evidence of the doctor that she has consumed poison and the
      same was corroborated by the evidence of P.W.8. Therefore no
      other evidence is necessary to find out that the accused has
      committed the offence. The medical evidence also corroborated         F
      the same. The learned counsel for the appellant would submit
      that the accused was admitted in the Government hospital, Salem,
      but the medical certificate was not produced. FIR also registered
      after three days from the date of occurrence.
      11. On considering the case, there was a wordy quarrel between        G
      the family members and due to the quarrel the accused suddenly
      taken the decision to consume poison and gave the same to her
      child also. Thereafter, she was admitted in Government hospital
      immediately. The statement recorded under Section 164 of Cr.P.C.,
      from the deceased which was marked as Ex.P20 and which was
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372             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A            corroborated by the evidence of P.W.8 doctor who has given
             treatment to the deceased Kanishka and the accused Vijaya.”
             6. The question that arises for consideration is whether it is tenable
      to uphold the conviction of the appellant solely on the basis of her purported
      dying declaration (Exhibit ‘P20’) which also appears to have been
B     classified as a Statement under Section 164 of the Code of Criminal
      Procedure, 1973, considering that Appellant has denied making any
      statement?
            7. In this regard, there has been a clear and consistent approach
      taken by this Court toward a dying declaration when the individual in
C     question subsequently survives. In State of U.P. v. Veer Singh (2004)
      10 SCC 117, it was held:
             “5. It is trite law that when maker of purported dying declaration
             survives the same is not statement under Section 32 of the Indian
             Evidence Act, 1872 (for short the ‘Evidence Act’) but is a statement
             in terms of Section 164 of the Code. It can be used under Section
D
             157 of the Evidence Act for the purpose of corroboration and
             under Section 155 for the purpose of contradiction.”
             8. There are also some decisions of this Court which cast doubt
      on whether such a statement can be treated as a confessional statement.
      We may, in this regard, rely upon two decisions, i.e., (i) “Ramprasad vs
E     State of Maharashtra, (1999) 5 SCC 30 and (ii) “S. Arul Raja vs State of
      Tamil Nadu, (2010) 8 SCC 233.
             9. In Ramprasad (Supra) the bar on classifying a statement as a
      dying declaration when the conveyer of the declaration does not succumb
      to his/her injuries, was detailed as follows:
F
             “We are in full agreement with the contention of the learned
             counsel that Ext.52 cannot be used as evidence under Section
             32 of the Evidence Act though it was recorded as a dying
             declaration. At the time when PW.1 gave the statement he
             would have been under expectation of death but that is not
G            sufficient to wiggle it into the cassette of Section 32. As long
             as the maker of the statement is alive it would remain only in
             the realm of a statement recorded during investigation.”
             10. The Court in S. Arul Raja (Supra) then went on to address
      the issue of such a statement being treated as a confessional statement,
H     by holding:
    VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE                         373
                     [SURYA KANT, J.]

      “40. This Court in the case of Sharawan Bhadaji Bhirad &             A
      Others v. State of Maharashtra reported in (2002) 10 SCC
      56 held that when a statement is recorded as a dying
      declaration and the victim survives, such statement need not
      stand the strict scrutiny of a dying declaration, but may be
      treated as a statement under Section 164, Cr.P.C.
                                                                           B
      41. Therefore, with the said statement inadmissible as a dying
      declaration, the question that arises is: whether the statement
      could be admissible either as a confession or as an extra-
      judicial confession?
      42. The events surrounding the confession made by A1 while           C
      in hospital, and more significantly, in police custody, are too
      ambiguous to support conviction of the appellant.
      43. Section 164 Cr.P.C. provides guidelines to be followed
      for taking the statement of accused as a confession. The one
      essential condition is that it must be made voluntarily and not      D
      under threat or coercion. This Court in Aloke Nath Dutta &
      Ors. v. State of West Bengal reported in (2007) 12 SCC 230
      held as under: -
      “87. Confession ordinarily is admissible in evidence. It is a
      relevant fact. It can be acted upon. Confession may under            E
      certain circumstances and subject to law laid down by the
      superior judiciary from time to time form the basis for
      conviction. It is, however, trite that for the said purpose the
      court has to satisfy itself in regard to:
      (i) voluntariness of the confession; (ii) truthfulness of the        F
      confession; (iii) corroboration.”
      11. Hence, the focus of our inquiry is two-fold: i) Whether the
statement made by the Appellant, which does not qualify as a dying
declaration under Section 32 of the Evidence Act but, rather, as a
statement under Section 164 of the CrPC, may be treated as a confession
                                                                           G
statement; and ii) Whether there is corroborative evidence that supports
the prosecution’s case.
       12. At the outset, the subsequent denial by the Appellant of the
statement attributed to her is of relevance. It further appears that PWs
1 & 5, Appellant’s husband who is also the complainant, and her father-
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374             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A     in-law, have both turned hostile. However, the learned Sessions Judge
      brushed aside this factor based on the rationale that these individuals
      were, ultimately, interested in ensuring that the Appellant was acquitted
      and hence resiled from their earlier statements which had supported her
      guilt. The trail court opined that the prosecution version of events was,
      by far, the more plausible and logically resulted in the demise of the
B
      Appellant’s daughter.
             13. Learned Senior Counsel, Mr. S. Nagamuthu, has vehemently
      urged that the only basis for the conviction of Appellant after the hostile
      turn of this class of witnesses, was the purported declaration made by
      the Appellant while she was admitted in hospital and the statement of
C     the doctor entrusted with treating the Appellant, PW8. However, he
      assails PW8’s statement as being shorn of any particulars beyond the
      fact that he treated Appellant and that both the Appellant and the deceased
      had consumed the same poisonous substance.
             14. Undoubtedly there is some murkiness surrounding the exact
D     circumstances in which the Appellant and her daughter consumed
      Odeuvanthlai. The Appellant has attributed her initial statement on
      11.10.2012, when she had regained consciousness in the hospital, to
      influencing from the police who allegedly convinced her that they would
      apprehend the individuals who had offered her daughter and her the
E     tainted honey, and also recover the jewelry that these unidentified persons
      had stolen. However, she claimed that they asked her to remain silent
      about these details and simply convey that the two of them had consumed
      Odeuvanthlai.
             15. This sequence of events has been disbelieved by the Sessions
F     Judge and the High Court. Be that as it may, this necessarily has an
      impact on the genuineness of the initial statement made by the Appellant.
      Combined with the subsequent hostile turns taken by some of the vital
      witnesses in the trial, a seed of doubt is planted in terms of the conviction
      of the Appellant.

G           16. At this stage, it is important to understand the ambit of
      “reasonable doubt” in a criminal proceeding. In State of Haryana v.
      Bhagirath & Ors. (1999) 5 SCC 96 the difficulty in demarcating the
      contours of “reasonable doubt” was remarked upon:
            “10. It is nearly impossible in any criminal trial to prove all
            elements with scientific precision. A criminal court could be
H
    VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE                        375
                     [SURYA KANT, J.]

      convinced of the guilt only beyond the range of a reasonable        A
      doubt. Of course, the expression “reasonable doubt” is
      incapable of definition. Modern thinking is in favour of the
      view that proof beyond a reasonable doubt is the same as
      proof which affords moral certainty to the judge.
      11. Francis Wharton, a celebrated writer on Criminal Law in         B
      United States has quoted from judicial pronouncements in his
      book on “Wharton’s Criminal Evidence” as follows (at page
      31, volume 1 of the 12th Edition):
      It is difficult to define the phrase “reasonable doubt.”
      However, in all criminal cases a careful explanation of the         C
      term ought to be given. A definition often quoted or followed
      is that given by Chief Justice Saw in the Webster Case. He
      says: “It is not mere possible doubt, because everything
      relating to human affairs and depending upon moral evidence
      is open to some possible or imaginary doubt. It is that state of
      the case which, after the entire comparison and consideration       D
      of all the evidence, leaves the minds of the jurors in that
      consideration that they cannot say they feel an abiding
      conviction to a moral certainty of the truth of the charge.
      12. In the treatise on “The Law of Criminal Evidence”
      authored by HC Underbill it is stated (at page 34, Volume 1         E
      of the Fifth Edition) thus:
      The doubt to be reasonable must be such a one as an honest,
      sensible and fair-minded man might, with reason, entertain
      consistent with a conscientious desire to ascertain the truth.
      An honestly entertained doubt of guilt is a reasonable doubt.       F
      A vague conjecture or an inference of the possibility of the
      innocence of the accused is not a reasonable doubt. A
      reasonable doubt is one which arises from a consideration of
      all the evidence in a fair and reasonable way. There must be
      a candid consideration of all the evidence and if, after this       G
      candid consideration is had by the jurors, there remains in
      the minds a conviction of the guilt of the accused, then there
      is no room for a reasonable doubt.”
      17. Thus, the focus for us when ascertaining reasonable doubt is
not merely the possibility of doubt or of another version of events but
                                                                          H
376             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A     rather a version that survives the scrutiny of an honest and conscientious
      judicial mind. In the present case, we note that following the incident,
      the marriage between the Appellant and PW1, the complainant, continues
      to subsist and that she has given birth to two minor children.
            18. When considering the Appellant’s guilt, the Sessions Judge
B     and the High Court have not satisfactorily considered the effect and
      impact of PW1 & PW’5’s failure to support the prosecution. When
      considering the disputed confession by the Appellant, the bedrock on
      which the prosecution’s case stood was undone but the Sessions Judge
      and the High Court proceeded on what prima facie appears to be an
      almost unqualified acceptance that the confession remained unassailable.
C     This was in spite of the fact that only PW8 remained to provide some
      degree of corroboration regarding the prosecution’s story.
             19. The reasons for why PW1 & PW5 turned hostile may be
      numerous and as compelling as each other. While the lower courts have
      considered them to be interested witnesses concerned with the acquittal
D     of the Appellant, we are unable to ascertain why that is a more likely
      reason for their non-cooperation than the fact that they believed the
      Appellant was being wrongly accused and that their initial statements
      were taken under duress.
              20. Undoubtedly, it is not incumbent upon us, nor possible, to
E     undertake such a factual analysis at this stage. We can only observe
      that further consideration of this point was necessary, especially in light
      of the guilt of the Appellant not tallying easily with her continuing marriage
      to PW1 and her fostering of two children after the tragic loss of her first
      born. It is the absence of an evaluation of this nuance on the record that
F     creates a reasonable doubt in our minds regarding Appellant’s conviction.
             21. When the facts and circumstances of a case are as peculiar
      as the one before us, the judicial responsibility to scrape the bottom of
      the barrel and address the specificities head on is even greater. It is in
      the same vein, that we are compelled to observe that there are issues of
G     contention that, having not been adequately addressed, benefit the
      Appellant.
           22. For the reasons aforesaid, the appeal is allowed and the
      Judgment dated 27-4-2017 of the learned Trial Court and the impugned
      Judgment dated 19-3-2019 passed by the High Court both are set aside.
H
    VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE                            377
                     [SURYA KANT, J.]

       23. Needless to state that interim protection granted by this Court    A
to the appellant on 13-8-2020 and continued on 16-10-2020, is made
absolute.

Ankit Gyan                                                  Appeal allowed.
(Assisted by : Rahul Rathi, LCRA)
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