Madhya Pradesh High Court
Parmeshwar Das @ Bhura vs State Of M.P. on 26 April, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 360 of 2011
Parmeshwar Das @ Bhura
Vs.
State of M.P.
_______________________________________
Shri R.K.S. Kushwaha Counsel for the Appellant
Smt. Anjali Gyanani Counsel for the State
Date of Hearing : 20-4-2022
Date of Judgment : 26th -April-2022
Approved for Reporting :
Judgment
26th - April -2022
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 11-2-2011 passed by Additional Sessions Judge, Karera, Distt. Shivpuri in S.T. No. 85/2010 by which the Appellant has been convicted under Section 2 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) 302 of IPC and has been sentenced to undergo the Life Imprisonment and fine of Rs. 500/- with default R.I. for 3 months.
2. It is not out of place to mention here that co-accused Munna was also tried along with the present Appellant and Munna has been acquitted and according to the State Counsel, his acquittal has not been challenged.
3. According to the prosecution case, on 10-12-2009, the deceased Pratipal was admitted in the hospital in an injured condition who died on 15-12-2009 during treatment. Accordingly Merg Enquiry was conducted. Spot map was prepared, Lash Panchnama was prepared. The statements of witnesses were recorded, who stated that on the question of opening a door, they have burnt the deceased by pouring Kerosene Oil on him. The police after completing the investigation, filed the charge sheet for offence under Section 302/34 of IPC against the Appellant and co-accused Munna and apart from Oral Dying Declarations, also relied upon the dying declaration of the deceased recorded by Naib Tahsildar, Jhansi.
4. The Trial Court by order dated 26-5-2010, framed charges under Sections 302 or in the alternative 302/34 of IPC against the Appellant and the co-accused Munna.
5. The Appellant and co-accused Munna abjured their guilt and pleaded not guilty.
6. The prosecution examined Meena Bai (P.W.1), Kapoori Bai (P.W.2), Ram Prasad (P.W.3), Kallu (P.W.4), Dr. D.K. Yadav (P.W.5), 3 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) Subodhmani Sharma (P.W.6), Dr. Harishchandra (P.W.7), C.R. Shakya (P.W.8) and Kavindra Singh Chouhan (P.W.9).
7. The Appellant did not examine any witness in his defence.
8. The Trial Court by the impugned judgment has acquitted the co-accused Munna of all the charges and convicted the Appellant for the offence and sentence mentioned above.
9. Being aggrieved by impugned Judgment and Sentence, it is submitted that the entire prosecution case hinges around the dying declaration. The prosecution has failed to prove as to why the dying declaration could not see the light of the day for days together and has also failed to prove that it was kept in a safe condition. In the alternative, it is submitted that since, the incident took place on a trivial issue and without pre-meditation, therefore, the act of the Appellant is punishable under Section 304 Part 1 of IPC.
10. Per contra, the Counsel for the State has supported the prosecution case and has also supported the findings recorded by the Trial Court.
11. Heard the learned Counsel for the Parties.
12. Before adverting to the facts of the case, this Court would like to find out as to whether the deceased Pratipal died a homicidal death or not?
13. Dr. D.K. Yadav (P.W.5) was posted as Senior Child Specialist in District Hospital, Jhansi. He had conducted the post-mortem of the dead body of deceased Pratipal and found following injuries on his 4 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) body :
Average Built, Rigor mortis present all over body, both eyes closed and mouth closed.
Ante-mortem injuries superficial to deep burn on both upper limbs on posterior side and lower abdomen and pelvic, on buttocks, thigh and genitalia. Both legs on anterior and post side including soles. Pus present at places. White powder spread over injuries. Cut open mark present in right hand which might have been caused during treatment.
Brain was congested, Liver, Gall Bladder and Kidneys were congested. About 100 gms semi digested food material was present in intestine.
The cause of death was septicemic shock due to ante- mortem injuries. The Post-mortem report is Ex. P.5.
14. This witness was cross-examined and in cross-examination he stated that after sustaining 50% burns, a person may fall unconscious. The palms of the hand were not burnt.
15. Thus, it is clear that the death of the deceased Pratipal took place on account of ante-mortem burn injuries.
16. Now the next question for consideration is that whether the death of Pratipal was homicidal or suicidal or accidental in nature?
17. This aspect shall be decided after considering the circumstances, which have been proved by the prosecution.
18. Now the next question for consideration is that whether the Appellant is the author of burn injuries caused to the deceased Pratipal or not?
19. Meena Bai (P.W.1) is the wife of the deceased and witness of oral dying declaration. She did not support the prosecution case in respect of co-accused Munna. However, She specifically stated that 5 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) at about 6 P.M., the Appellant Bhura took the deceased from her house and thereafter, set him on fire after pouring Kerosene Oil on him. She was in her house and after hearing the noise of her husband, She came outside the house and found that her husband was lying in the street who informed this witness, that the Appellant has set him on fire. Since, this witness did not support the prosecution case in respect of co-accused Munna therefore, She was declared hostile for Munna but the Public Prosecutor could not elicit from her evidence, which may indicate that the co-accused Munna was also involved in the offence. In cross-examination by the Appellant, She stated that the Appellant Bhura had come to her house at about 4-5 P.M. and at that time, She and her husband Bhura were present in the house. She further stated that She had seen that her husband was burning in the street. When She reached near to her husband, the Appellant was standing there. She further stated that her husband survived for 4 days and during this period, he was speaking. She further stated that at the time of recording of Dying Declaration, She and her father-in-law were standing outside the room. At the time of recording of dying declaration, apart from her husband there were only two persons i.e., the Doctor and one Officer. She denied that her husband set himself on fire and rushed towards the house of Appellant.
20. Kapoori Bai (P.W.2) is the mother of the deceased. She is also the witness of Oral Dying Declaration. She further stated that her son had died after 4 days of sustaining burn injuries. Since, this witness 6 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) also did not support the prosecution case, in respect of co-accused Munna, therefore, She was declared hostile but nothing could be elicited from her cross-examination, which may implicate the co- accused Munna. She was further cross-examined by the Appellant. In cross-examination, She stated that by 6 P.M., She had returned back to her house from her Well. She had seen her son in a burnt condition in the street. She denied that her son had himself set on fire. She further stated that her son did not become unconscious.
21. Ram Prasad (P.W.3) is the father of the deceased and is also a witness of Oral Dying Declaration and he has also the narrated same story which has been narrated by Meena Bai (P.W.1) and Kapoori Bai (P.W.2). This witness was cross-examined and nothing could be elicited from his cross-examination, which may make his evidence unreliable.
22. Kallu (P.W. 4) did not support the prosecution case.
23. The another set of evidence against the Appellant is written dying declaration recorded by Subodhmani Sharma (P.W. 6) who was posted as Naib-Tahsildar in Jhansi Sadar. On an information received from Police Outpost University, Police Station Navababad, he recorded the dying declaration of Pratipal. He had obtained the fitness certificate from the Medical Officer and he recorded the dying declaration which started at 3:20 and completed at 3:40 P.M. In the dying declaration, the injured Pratipal had disclosed that he was called by the Appellant to his house for a Chicken Party. After they 7 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) had their meals, the Appellant said that he would burn him and would take him to the door of the house of Sarpanch and poured Kerosene Oil on him and set him on fire. He further stated that much prior to the incident, he had a quarrel with Appellant Bhura and only on that enmity he has burnt him. This witness further stated that after recording the Dying Declaration, he had once again obtained the fitness certificate from the Medical Officer. The Dying Declaration is Ex. P.6. The Signatures of the Medical Officer are at B to B. He had obtained the thumb impression of left hand of the injured. After the Dying Declaration was recorded, he sent the same to the Court of C.J.M., Jhansi in a sealed cover.
24. This witness was cross-examined. In cross-examination, he stated that the injured was admitted in Emergency Ward. The Medical Officer was in Casualty but was not with the patient. He initially took the Medical Officer to the Patient, who examined the patient and thereafter gave fitness certificate. He further stated that at the time of recording of dying declaration, his family members were not present and all the persons were sent out of the ward. Pratipal was admitted and was lying on the bed. Pratipal was not wearing any cloth. His dying declaration was recorded while he was lying. After recording the Dying Declaration, he took the same with him. The dying declaration was sent by his Nazir. The Dying Declaration was sent to C.J.M. The injured was in a serious condition. He denied that the patient Pratipal was not in a condition to speak. He denied that he 8 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) has falsely prepared the Dying Declaration, Ex. P.6.
25. Dr. Harish Chandra (P.W. 7) was the Medical Officer, who had given fitness certificate. He has stated that he had medically examined the patient and found that he was in fit state of mind and accordingly, he gave fitness certificate at 3:20 on the Dying Declaration, Ex. P.6. After the recording of Dying Declaration was over, he had again given the fitness certificate at 3:40 P.M.
26. In cross-examination, he admitted that he had not treated the injured Pratipal. He had checked B.P. of the injured. He was speaking. He had checked his medical condition after putting certain questions to him and he was in condition to speak. He denied that the patient was not mentally stable. He had examined him in burn ward. It was not his duty to verify as to how the patient had got burnt. This witness could not tell the extent of burns sustained by the injured. The fitness certificates are in his handwriting. He denied that he had given false fitness certificate.
27. C.R. Shakya (P.W.8) is an officer who had partially conducted the investigation. He had enquired from Police Station Navababad as to whether Dying Declaration was recorded or not? He had prepared the spot map, Ex. P.7 on the information given by Ram Prasad. He had registered the offence and thereafter handed over the Diary to S.H.O., Police Station Dinara. In cross-examination, he admitted that spot map, Ex. P.7 doesnot contain the signatures of Ram Prasad but stated that he might have forgotten to obtain his signatures. He also 9 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) admitted that the houses of Ram Singh and Mohan Lal Lodhi are adjoining to the house of Appellant but those persons were not available. He further admitted that the distance between the house of the Appellant and the place where the injured had fallen is not mentioned in the spot map, Ex. P.7. He neither seized the cloths of the injured nor seized the container of Kerosene Oil.
28. Kavindra Singh Chauhan (P.W. 9) is the investigating officer. He has stated that the counter copy of FIR was sent to J.M.F.C. which is at serial no. 98 dated 16-1-2010, Ex. P.9. The appellant was arrested on 2-3-2010 vide arrest memo Ex. P. 11. He had obtained the Dying Declaration from the Court of C.J.M., Jhansi and thereafter deposited in the Court of J.M.F.C., Karera. The merg intimation is Ex. P. 17 which is in the handwriting of H.C. Ramnaresh. This witness was cross-examined.
29. In cross-examination, he stated that the information regarding death of Pratipal was received in Police Station Dinara on 9-1-2010. He himself had gone to take the Dying Declaration from the Court of C.J.M., Jhansi. He stated that although he has not placed the copy of the Application filed before the Court of C.J.M., Jhansi, but the same is available in the Case diary. The Dying Declaration was in a sealed cover and was handed over to him by hand. On the next day, he had deposited the Dying Declaration in the Court of J.M.F.C., Karera. The envelop has been filed and it has the seal of Authority who had recorded the Dying Declaration. He admitted that he had not seized 10 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) the burnt cloths of the deceased. The information regarding death of Pratipal was sent from Jhansi Hospital to Police Station Navababad from where it was sent to S.H.O. He denied that he had not received the envelop containing dying declaration from the Court of C.J.M., Jhansi. He further stated that he himself had written F.I.R. His sub- ordinate had conducted merg enquiry, as he was out of station.
30. Thus, the entire case is based on Oral Dying Declaration and Written Dying Declaration, Ex. P.6.
31. It is submitted by the Counsel for the Appellant that since, the death of the deceased was on account of Septicemic Shock, therefore, it is clear that there was some negligence on the part of Doctors. The prosecution has failed to prove beyond reasonable doubt that the Dying Declaration was recorded by Subodhmani Sharma (P.W.6). The Oral Dying Declaration made to the witnesses is not reliable as no independent witness has been examined in support of Oral Dying Declaration and all the witnesses are Related Witnesses being Wife, Mother and Father of the deceased.
32. Per contra, the Counsel for the State has supported the reasoning assigned by the Trial Court.
33. Heard the learned Counsel for the Parties. Whether Meena Bai (P.W.1), Kapoori Bai (P.W.2) and Ram Prasad (P.W. 3) are reliable witnesses?
34. Meena Bai (P.W.1) has specifically stated that the Appellant had taken her husband with him and after hearing the noise of her 11 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) husband, She saw that her husband was burning and therefore, She rushed to the place where her husband was lying. Her husband Pratipal also told her that he has been burnt by the Appellant. Similar is the evidence of Kapoori Bai (P.W.2) and Ram Prasad (P.W.3).
35. So far as the submission made by the Counsel for the Appellant that since, all the witnesses of Oral Dying Declaration are Related Witnesses therefore, their evidence should not be given credence is concerned, the same cannot be accepted.
36. The Supreme Court in the case of Raju Vs. State of T.N. Reported in (2012) 12 SCC 701 has held as under :
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a "natural witness"
or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held: (AIR p. 506, para 15) "15. ... The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
23. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished--in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalised and needs a rethink.
24. For the time being, we are concerned with four 12 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) categories of witnesses--a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
25. In the present case, PW 5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the Appellants. His evidence, therefore, needs to be scrutinised with great care and caution.
26. In Dalip Singh v. State of Punjabthis Court observed, without any generalisation, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused--each case has to be considered on its own facts. This is what this Court had to say: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab. This Court was of the opinion that a related or interested 13 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. ... [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, Balraje v. State of Maharashtra, Prahalad Patel v. State of M.P., Israr v. State of U.P., S. Sudershan Reddy v. State of A.P., State of 14 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) U.P. v. Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of Rajasthan it was held: (Waman case, SCC p. 302, para 20) "20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words: (Sarwan Singh case, SCC p. 376, para 10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
37. The Supreme Court in the case of Jodhan v. State of M.P., (2015) 11 SCC 52 has held as under :
24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab, it has been observed thus: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan."
In the said case, it has also been further observed: (AIR p. 15
Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. In Hari Obula Reddy v. State of A.P., the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage from the said authority: (SCC pp. 683-84, para 13) "13. ... an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek corroboration in regard to material particulars.
38. The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 has held as under :
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v. State of Punjab is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) 16 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh v. State of Punjab, this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy v. State of A.P., a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai v. Jagdish Singh, the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault.
Therefore, a duty is cast upon the court to examine the 17 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo, Bhagaloo Lodh v. State of U.P., Dahari v. State of U.P., Raju v. State of T.N., Gangabhavani v. Rayapati Venkat Reddy and Jodhan v. State of M.P.)
39. The Supreme Court in the case of Rupinder Singh Sandhu v. State of Punjab, reported in (2018) 16 SCC 475 has held as under :
50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.
40. The Supreme Court in the case of Shamim Vs. State (NCT of Delhi) reported in (2018) 10 SCC 509 has held as under :
9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............
41. The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :
6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be 18 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."19
Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011)
10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana.
42. Why a "related witness" would spare the real culprit in order to falsely implicate some innocent person? There is a difference between "related witness" and "interested witness". "Interested witness" is a witness who is vitally interested in conviction of a person due to previous enmity. The "Interested witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under :
13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"
witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki:
(Ganapathi case, SCC p. 555, para 14) 20 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
43. Further, now a days, the independent witnesses generally hesitate in coming forward to depose the truth. The Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), reported in (2000) 2 SCC 646 has held as under :
12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as 21 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW
7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp.
691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
Whether the Injured Pratipal was in fit state of Mind at the time of recording of Dying Declaration, Ex. P.6.
44. Subodhmani Sharma (P.W.6) has recorded the Dying Declaration and has stated that the patient Pratipal was in a fit state of mind. Dr. Harishchandra (P.W. 7) had medically examined the injured prior to and after the recording of Dying Declaration Ex. P.6 and had given fitness certificate.
45. The Supreme Court in the case of P.V. Radhakrishna v. State of Karnataka, reported in (2003) 6 SCC 443 has held as under : 22
Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011)
15. It was observed by a Constitution Bench of this Court in Laxman v. State of Maharashtra that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to the state of mind of the declarant. Moreover, state of mind was proved by the testimony of the doctor who was present when the dying declaration was recorded. In the aforesaid background it cannot be said that there was any infirmity.
Further, if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such a dying declaration will not be invalid solely on the ground that it is not certified by the doctor as to the condition of the declarant to make the dying declaration. (See Rambai v. State of Chhattisgarh.)
46. The Supreme Court in the case of Ravikumar v. State of T.N., reported in (2006) 9 SCC 240 has held as under :
5. Section 32 of the Evidence Act, 1872 is an exception to the general rule against hearsay. Sub-section (1) of Section 32 makes the statement of the deceased admissible which is generally described as "dying declaration". The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.
Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the 23 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration 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 the rule of prudence. These well-settled principles have been recognised and reiterated by this Court in Paniben v. State of Gujarat; Uka Ram v. State of Rajasthan; Laxman v. State of Maharashtra; P.V. Radhakrishna v. State of Karnataka; State of Maharashtra v. Sanjay; Muthu Kutty v. State.
6. In Kanchy Komuramma v. State of A.P., SCC at para 11, it is laid down that there are certain safeguards which must be observed by the Magistrate when he is requested to record the dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make the statement and the prosecution must prove that opinion at the trial in the manner known to law. In Laxman v. State of Maharashtra a Constitution Bench of this Court while affirming an earlier ruling of a three-Judge Bench of this Court in Koli Chunilal Savji v. State of Gujarat held that if the person recording the dying declaration is satisfied that the declarant was in fit mental condition to make the dying declaration then such dying declaration would not be invalid solely on the ground that the doctor has not certified as to the condition of the declarant to make the dying declaration.
47. Since, Subodhmani Sharma (P.W.6) was not only satisfied about the mental condition of the Patient, but he had also obtained the fitness certificate from the Medical Officer, Dr. Harishchandra (P.W.7), this Court is of the considered opinion, that the injured Pratipal was in a fit state of mind to give Dying Declaration. Whether the Dying Declaration given by Pratipal was voluntary or was a tutored one 24 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011)
48. A specific question was put to Meena Bai (P.W.1) and it was stated by her that at the time of recording of Dying Declaration of her husband, She and her father-in-law were standing outside the Room. She has further stated that apart from her husband/patient Pratipal, only Doctor and One Officer were in the Ward. Subodhmani Sharma (P.W.6) has also stated that before recording of Dying Declaration, he had sent all the persons outside the Ward.
49. Further nothing could be pointed out by the Counsel for the appellant, which may indicate that the injured Pratipal was tutored prior to recording of his Dying Declaration. Therefore, it is held that the Dying Declaration, Ex. P.6 was a voluntary one. Whether Dying Declaration can be sole basis for conviction.
50. It is well-settled principle of law that if the Court finds that the maker of Dying Declaration was in a fit state of mind and was not a tutored one, and the Dying Declaration inspires confidence, then the Dying Declaration can be a sole basis for recording conviction.
51. The Supreme Court in the case of P.V. Radhakrishna (Supra) has held as under :
12**. 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 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 the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and 25 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) identify the assailant. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not * contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version 26 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)
52. The Supreme Court in the case of Laltu Ghosh v. State of W.B., reported in (2019) 15 SCC 344 has held as under :
19. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. The doctor PW 18, who recorded the statement of the deceased which was ultimately treated as his dying declaration, has fully supported the case of the prosecution by deposing about recording the dying declaration. He also deposed that the victim was in a fit state of mind while making the said declaration. We also do not find any material to show that the victim was tutored or prompted by anybody so as to create suspicion in the mind of the court.
Moreover, in this case the evidence of the eyewitnesses, which is fully reliable, is corroborated by the dying declaration in all material particulars. The High Court, on reappreciation of the entire evidence before it, has come to an independent and just conclusion by setting aside the judgment of acquittal passed by the trial court.
53. The Supreme Court in the case of Ramilaben Hasmukhbhai Khristi v. State of Gujarat, reported in (2002) 7 SCC 56 has held as under :
28. Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying 27 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.
54. The Supreme Court in the case of Ramakant Mishra v. State of U.P., reported in (2015) 8 SCC 299 has held as under :
7....... However, once a dying declaration is held to be authentic, inspiring full confidence beyond the pale of doubt, voluntary, consistent and credible, barren of tutoring, significant sanctity is endowed to it; such is the sanctitude that it can even be the exclusive and the solitary basis for conviction without seeking any corroboration. At this juncture, it is worthwhile noting that the sanctity attached to a dying declaration springs up from the rationale that a person genuinely under the sense of imminent death would speak only the truth.
8. In addition to the dying declaration, which is only one of the species of the genus of Section 32(1), there could be other statements, written or verbal, which would also be encompassed within the sweep of this section, and at this point the Indian law drifts from the English law. This is further evident from the usage of phraseology in the section, embracing not only statements made about "cause of death" but also about "any of the circumstances of the transaction which resulted in the death", whether or not the person making the statement was under "expectation of death". These statements could be in the form of a suicide note, a letter, a sign or a signal, or a product of any reliable means of communication; their genuineness and credibility shall, of course, be reckoned by the court entertaining the matter concerned. A dying declaration enjoys a higher level of credence vis-à-vis any other statement abovementioned, which is on account of the former being made in the "contemplation of death". "Contemplation of death" is the primal factor to segregate dying declarations from other statements. But no hard-and-fast rule can be laid down to confine the contemplation within the circumference of few hours or a few days in which death of the maker of the 28 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) statement must happen so as to elevate that statement to the level of a dying declaration. Moreover, the state of mind of the maker would also be material in discerning completely as to whether the maker was mentally fit to make the statement and whether the maker actually could have contemplated death.
9. The definition of this legal concept found in Black's Law Dictionary (5th Edn.) justifies reproduction:
"Dying declarations.--Statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide (and occasionally, at least in some jurisdictions, in other cases) where the killing of the declarant is the crime charged to the defendant. Shepard v. United States."
Generally, the admissibility of such declarations is limited to use in prosecutions for homicide; but is admissible on behalf of the accused as well as for the prosecution. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule [the Federal Rules of Evidence, Rule 804(b)(2):"Statement under the Belief of imminent Death"].
10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a dying declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration. In the case before us, the statement, if made by the deceased, would qualify to be treated as a dying declaration because she was admitted in the hospital, having sustained 90-95 per cent burn injuries, and because of these grave burn injuries, she would be expecting to shortly breathe her last. 29
Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) Whether Dying Declaration was properly kept or not?
55. Subodhmani Sharma (P.W.6) has stated that after recording the Dying Declaration, he had deposited the same in the Court of C.J.M., Jhansi in a sealed cover.
56. Kavindra Singh Chouhan (P.W.9) has stated that he had personally received the Dying Declaration in a sealed condition from the Court of C.J.M., Jhansi and again deposited in the Court of J.M.F.C., Karera, Distt. Shivpuri. Thus, it is clear that the Dying Declaration, Ex. P.6 was kept in a sealed and proper custody. Whether Oral Dying Declaration corroborates the Written Dying Declaration
57. Meena Bai (P.W.1), Kapoori Bai (P.W.2) and Ram Prasad (P.W.3) have stated about the Oral Dying Declaration made by the Appellant. These witnesses had immediately rushed to the spot where the injured Pratipal was lying. These witnesses have specifically stated that the injured was speaking and he had informed these witnesses that the Appellant has set him on fire. The Oral Dying Declaration made to these witnesses fully corroborates the written Dying Declaration, Ex. P.6. Therefore, it is held that the injured Pratipal had also made Oral Dying Declaration to Meena Bai (P.W.1), Kapoori Bai (P.W.2) and Ram Prasad (P.W.3) and they are reliable witnesses.
Whether act of the Appellant would be punishable under Section 30 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) 304 Part 1 of IPC or not?
58. It is submitted that since, the incident took place all of a sudden without any pre-meditation, therefore, the act of the Appellant would be punishable under Section 304 Part 1 of IPC.
59. Considered the submissions made by the Counsel for the Appellant.
60. The Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held as under :
7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
61. Thus, in order to bring the act of an accused within the purview of Section 304 Part 1 or 2 IPC, the accused must prove that he had neither taken any undue advantage nor acted in the cruel or unusual 31 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) manner.
62. Burning a person alive, is a gruesome act. No one can claim that he had not taken undue advantage of the situation or he did not act in a cruel or unusual manner.
Cause of death
63. According to Dr. D. K. Yadav (P.W.5) the cause of death was septicemic shock due to burn injuries. The contention of the Counsel for the Appellant, that due to improper treatment, the deceased had died cannot be accepted. The deceased was burnt alive. The burn injuries were sufficient in the ordinary course of nature to cause death. The intention and knowledge behind burning the deceased alive is writ large. The accused cannot take the defence of medical negligence.
64. The Supreme Court in the case of State of Rajasthan Vs. Arjun Singh reported in (2011) 9 SCC 115 has held as under :
31. Finally, the learned Senior Counsel for the accused pointed out that inasmuch as Himmat Raj Singh died after 35 days due to septicaemia, the courts below are not justified in convicting the accused persons for an offence under Section 302 IPC for his death. Considering the medical evidence that Himmat Raj Singh sustained 7 gunshot injuries which were sufficient to cause death in the ordinary course, we are satisfied that the death of Himmat Raj Singh undoubtedly falls within the ambit of Section 302 IPC.
65. The Supreme Court in the case of Munnawar and others Vs. State of Uttar Pradesh and others reported in (2010) 5 SCC 451 has held as under :
21. Mr Sushil Kumar has also pointed out that the Sessions 32 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) Judge had, in his judgment, acquitted the appellant-accused for the offence punishable under Section 302 IPC but had convicted them under Section 307 IPC and that in any case this was the proper order to be made in the peculiar facts of the case. It has been submitted that the injuries had been suffered by Fateh Mohammad on 20-5-2000 but he had died on 25-5-2000 and that as per the statement of PW Dr. N.K. Gupta, who had conducted the post-mortem of the dead body, the death was due to septicaemia on account of the infection caused by the injuries and that had Fateh Mohammad been given proper treatment, he may have survived. It has been pleaded that from the evidence of PW Dr. Anil Kapoor, who had initially treated the injured at Jaswant Rai Speciality Hospital, it was apparent that the infection had set in on account of the lack of proper treatment and that in the light of this medical opinion the appellants were entitled to claim the benefit of doubt and plead that, if at all, a case under Section 307 IPC was spelt out.
22. We are of the opinion, however, that the trial court has ignored some basic issues.
23. We have gone through the statement of Dr. Anil Kapoor who had noticed the following injuries on the person of Fateh Mohammad at the time of his admission to hospital:
1. Lacerated wound, size of wound 2.9 × 1.0 cm fresh bleeding present. Depth not probed, with inverted margins present at right side of chest 8.0 cm from right nipple at 2.00 o'clock position. Tattooing present in an area of 17.0 × 4.5 cm area.
2. Tattooing without any wound present over right side of the neck obliquely vertical in an area of 9.0 cm × 3.0 cm upper end starting at the level of mastoid process, 4.0 cm posterior to mastoid process.
3. Lacerated wound with inverted margins present over left side of face 5.0 × 2.0 cm × depth not probed. 2.0 cm below left eye. Tattooing present around the wound in an area of 6.0 × 5.0 cm. Fresh bleeding present.
4. Lacerated wound with inverted margins present over back of left hand 13.0 cm below left oleranon process size 3.0 cm × 1.0 cm × depth not probed, fresh bleeding present. Tattooing present in an area of 4.0 × 3.0 cm around wound.
5. Lacerated wound with everted margins present over antero-lateral size of left forearm size 1.0 × 1.0 cm × depth not probed, fresh bleeding present.
6. Lacerated wound with everted margins 4 × 2 cm × depth not probed, present over right scapular region 7.0 cm from 33 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) post axillary line, fresh bleeding present.
7. Lacerated wound with everted margins 1.0 × 1.0 cm × depth not probed, present over left scapular region 6.0 from mid line, fresh bleeding present.
24. We see from the injuries that they had been caused from a very close range as tattooing was present. Dr. Anil Kapoor also pointed that Injuries 1, 3, 6 and 7 were grievous and were fatal to life and all the injuries were sufficient to cause death as they were on sensitive parts of the body and that the injured was under severe shock, and had been given three units of blood at the time of his admission to the hospital. In the light of this evidence, we are unable to comprehend as to how the trial court could have concluded that it was the negligence on the part of Dr. Anil Kapoor which had led to septicaemia and finally to the death of the patient.
66. The Supreme Court in the case of Antram v. State of Maharashtra, reported in (2007) 13 SCC 356 has held as under :
13. Coming to the question as to applicability of Section 302 IPC, great emphasis was laid on the evidence of Dr. S.K. Shinde (PW 7). It was contended that the death was due to medical negligence and therefore the accused could not have been convicted under Section 302 IPC. It was submitted that had the patient been given proper care, there was a possibility of removing thick mucus and food particles from trachea and bronchi by using certain instruments and with proper medicines, she could have survived. The High Court noted that the throwing out of the vomit by the deceased was not a natural course but it was a result of two injuries i.e. Injuries 3 and 4. The High Court found that the presence of mucus and food particles in the trachea and bronchi cannot be totally delinked from the injuries inflicted by the accused. It was the stand of the accused that the death was due to septicaemia and, therefore, it is not referable to cause of death in the ordinary course of nature due to ante-mortem injuries.
14. In State of Haryana v. Pala it was noted as follows:
(SCC pp. 52-53, para 3) "... In answering the question whether a wound is dangerous to life, the danger must be assessed on the probable primary effects of the injury. Such possibilities as the occurrence of tetanus or septicaemia, later on, are not to be taken into consideration."
15. In Sudershan Kumar v. State of Delhi it was noted as 34 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) follows: (AIR p. 2328) "The fact that the deceased lingered for about 12 days would not show that the death was not the direct result of the act of the accused in throwing acid on her. So also the fact that the deceased developed symptoms of malaena and respiratory failure and they also contributed to her death could not in any way affect the conclusion that the injuries caused by the acid burns were the direct cause of her death."
16. As noted above it was emphasised by learned counsel for the appellant that with proper medical care the deceased could have survived and therefore Section 302 IPC has no application. The plea clearly overlooks Explanation 2 to Section 299 IPC, which reads as follows:
"Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
67. The Supreme Court in the case of Jagtar Singh v. State of Punjab, reported in (1999) 2 SCC 174 has held as under :
7. Having given our anxious consideration to the first contention of Mr Gujral, we do not find any substance in it.
It is true that Naib Singh died 16 days after the incident due to septicaemia, but Dr M.P. Singh (PW 1), who held the post-mortem examination, categorically stated that the septicaemia was due to the head injury sustained by Naib Singh and that the injury was sufficient in the ordinary course of nature to cause death. From the impugned judgment, we find that the above contention was raised on behalf of the appellants and in rejecting the same, the High Court observed:
"It is well settled that culpable homicide is not murder when the case is brought within the five exceptions to Section 300 Penal Code, 1860. But even though none of the said five exceptions is pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses, firstly to fourthly, of Section 300 Penal Code, 1860, to sustain the charge of murder. Injury 1 was the fatal injury. When this injury is judged objectively from the nature of it and other evidence including the medical opinion of Dr M.P. Singh (PW 1), we are of the considered view that the injury was intended to be caused with the 35 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) intention of causing such a bodily injury by Harbans Singh, the appellant on the person of Naib Singh which was sufficient in the ordinary course of nature to cause death...."
On a perusal of the evidence of PW 1 in the light of Explanation 2 to Section 299 IPC, we are in complete agreement with the above-quoted observations of the High Court.
68. The Supreme Court in the case of Khokan Vs. State of Chhatisgarh reported in (2021) 3 SCC 365 has held as under :
13..... There is no absolute proposition of law laid down by this Court in the said decision that in all cases where the deceased died due to septicaemia, the case would fall under Section 304 Part I IPC. In the present case, though the deceased died due to septicaemia, however, it is required to be noted that he died while taking treatment in the hospital and that too he died within three days from the date of occurrence of the incident. Therefore, on facts, the said decision shall not be applicable.
14. However, at the same time, it is also required to be noted that the deceased was admitted to the hospital after 24 hours and thereafter he died within three days due to septicaemia. If he was given the treatment immediately, the result might have been different. In any case, as observed hereinabove, there was no premeditation on the part of the accused; the accused did not carry any weapon; quarrel started all of a sudden and that the accused pushed the deceased and stood on the abdomen and therefore, as observed hereinabove, the case would fall under Exception 4 to Section 300 IPC and neither Clause 3 of Section 300 nor Clause 4 of Section 300 shall be attracted. Therefore, as observed hereinabove, at the most, the accused can be said to have committed the offence under Section 304 Part I IPC.
69. Under these circumstances, the submission made by the Counsel for the appellant that the act of the Appellant would be punishable under Section 304 Part 1 of IPC cannot be accepted.
70. Accordingly, the Appellant is held guilty of committing offence under Section 302 of IPC and accordingly, the conviction recorded 36 Parmeshwar Das @ Bhura Vs. State of M.P. (Cr.A. No. 360 of 2011) by the Trial Court is upheld.
71. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life imprisonment, accordingly, the sentence awarded by the Trial Court doesnot call for any interference.
72. Ex-consequenti, the Judgment and Sentence dated 11-2-2011 passed by Additional Sessions Judge, Karera, Distt. Shivpuri in S.T. No. 85/2010 is hereby Affirmed.
73. The Appellant is in jail. He shall undergo the remaining Jail Sentence.
74. Let a copy of this judgment be immediately provided to the Appellant, free of cost.
75. The record of the Trial Court be sent back along with copy of this judgment, for necessary information and compliance.
76. The Appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2022.04.26 17:29:08 +05'30'