Madhya Pradesh High Court
Babbu Ahirwar @ Babulal Ahirwar vs State Of M.P. on 9 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
| Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) HIGH COURT OF MADHYA PRADESH GWALIOR BENCH DIVISION BENCH G.S. AHLUWALIA & DEEPAK KUMAR AGARWAL J.J. Cr.A. No. 283 of 2009 Babbu Ahirwar @ Babulal Ahirwar Vs. State of MIP. Shri R.KLS. Kashwaha Counsel for the Appellant Shri C.P. Singh, Counsel for the State Date of Hearing > 22-02-2022 Date of Judgment : 98.93-022 Appreved for Reporting Jadg ment 9°. Mareh -2022 Per GS, Ahhowalia J. 1. This Crimmal Appeal under Section 374 of CrBC. has been filed against the judgment and sentence date 28-2-2009 passed by Additional Sessions Judge, Sironj, Distt. Vidisha in S.T. Na. 179 of 2007, by which the appellant has been convicted under Section 302 " 2 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) of IPC and sentenced to undergo Life Imprisonment and fine of Rs. 2000/- with default imprisonment of R.1. for six manths. 2. The necessary facts far disposal of the present appeal in short are that on 12-3-2007, the appellant admitted his wife Hartbai in burt condition, She had sustained 85% burns. An information was given by Hospital to the Police Station Sironj, Ex. PS to the cffect that the injured Haribai with 8300 burn marks has been admitted in the hospital by her husband. Accordingly, the police recorded the statement of the injured Haribai who informed that the appellant under the influence of alcohol was quarreling with her and has set her on fire, Thereafter, the appellant has also extinguished her fire. There was nobody else in the house. She has been brought to the hospital by her younger-brother-in-law in a tractor tralley for treatment. The medical certificate was also ebtamed from the Doctor and on the hasis of statement, FIR, Ex. P9 was lodged, 3. The dying declaration of the inpured was also recorded by Naib-Tshsiidar at Bhopal. On 17-3-2007, the deceased Naribai succumb fo the injuries. The police prepared the spot map, Ex. PIE, seized incriminating articles from. the spot, vide seizure memo Ex. P12, recorded the statements of the witnesses, fled the charge sheet against the appellant for offence under Section 302 of IPC. 4. Yhe Trial Court by order dated 20-11-2007 framed charge under Seetion 302 of IPC. 5. The appellant abjured his guilt and pleaded not guilty. t 4 Babbu Alinwar Ge Babulal Ahirwar Vs, State of MP. (Crd. No. 283 of 2009) &. The prosecution examined Bhagwatibat (RWI), Panchobai (PW.2), Rajaram (PW.3), Kamal Singh Raghowanshi (PWi4}, Dr. Vimila Prajapati (PW.5), Dr. Suresh Agarwal (P.W.6), SJ Qureshi (PW.7), Rishi Morya CP W.8), Kallu Ahirwar (PAW.9), Gayabai (PWLIO), Dr. Dhanesh Tripathi: (P'W11}, Nagend Kumar Patertya and (PAW IS) 7. The Appellant did not examine any witness in his defence. 8. The Trial Court by the impugned judgment convicted and. sentenced the appellant for the offence mentioned above. 9. Challenging the fadement passed by the Court helow, it is submitted by the Counsel for the appellant, that the dying declarations of the deceased are not rehable. All the material witnesses have turned hostile. Further more, the offence was committed under the influence of aleohol and accordingly, the Appellant was not in a position to understand as to what was correct and what was wrong. Further more, the deceased had suffered 85% burn injuries therefore, She was not in a fit state of mind to give dying declaration. Even according ta the deceased, the appellant had extinguished the fire, which clearly show that his intention was not to kill his wile and therefore, his act woukl be cavered under Section 304 Part fo of [PC. The appellant is in jal for a period of approximately 9 years and therefore, he may be sentenced to the period already undergone by him, 10. Per contra, the Counsel for the State has supported the findings 4 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) recorded by the Trial Court below, ii. Heard the learned Counsel for the parties. i2. Before adverting to the facts of the case, this Court would ike ta find out as to whether the deceased died a homicidal death or net? i3. Dr Suresh Agarwal (PWG) had conducted the medical examination of the injured and found "Dry burn present over lace, neck, chest and both breasts, abdomen, both thigh and both leas and both arms and both forearms and both hands. Singing of frontal hairs present, pecling of skin present all ower burned areas, Rerosin smell coming fram body. Saree also has burn areas and blouse also partially burnt. Patient is consensus and oriented. Primary treatment started and referred to Namidia Hospial Bhopal for further treatment and acedful. Opinion : Dry burn about 80% caused by dry heat caused within 3 hours." 14. The Pre MLC is Ex, P. 4, 1S. Dr Agarwal (PW6) also conducted MLC, Ex. P6 of the appellant an 27-3-2007 (After 10 days ef incident} and opined as under : Superficial burn mark under healing undermine shin regenerated only light discoloration present over site on dorsal surface of left hand, caused by dry heat. 16. This witness had also given the medical certificate regarding fitness to give dying declaration. Fitess certificate on dying declaration, Ex. PS was given at A to A prior te recording of statement and at B te B after recording of statement, Ex. PS. This WHESS was cross-examined, if. In cross-examination, he stated that he donot recollect that at § Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) the time of examination of the injured, whether other villagers were present or not? He was also not in a postfion fo say about the conveyance by which the injured was brought. The injured was brought to the hospital prior to [G:25 P.M. on 12-3-2007. The injured was brought by her husband. The hands and legs of the injured were bum. The skin was peeling of. Ne had not recorded the Mood pressure as if was not possible to record as the hands were burnt. He denied that the injured was not in a pasition ta speak, He denied that fhe myured was brought at 12:00 and not 10:30. Initially he had examined the injured and thereafter, instructed the support staff about treatment. He further stated that he had referred the patient to Bhopal, but her relatives took her after considerably long time. He denied that affer having sustained 80% burns, a person would nat be in a position to speak. He was present night from the beginning of her statement. is. Dr Vunla Prajapat: (PW. 5) had conducted the post-mortem and found burn injuries on both cheeks, chin, chest, both breasts, both shoulders, right hand, anterior aspect of right forearm, all around left arm and forearm, over dorsum of right hand, anterior surface of right thigh, right knee and right leg, over anterio medial surface of loft thigh, Jefi knee and upper halfof left leg. AH injuries were of secand and third degree. AH the burn marks were of greenish yellow in colour, The post-mortem report is Ex. Ps 19. This witness was cross-examined. In cross-cxannnation, She 8 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) stated that the dead body was brought by constable Laxman Singh. As this witness had not treated the deceased, therelore, was not mi a position to say as to whether She could have spoken or not' 20. Thus, from the evidence af Dr. Suresh Agarwal (P.W.6) and Dr. Vira Prajapati (P.W.5), His clear that the deceased had died due to burn injuries. 2i. Now the next question for consideration is as to whether the death of the deceased Haribai was homicidal, accidental or suicidal in nattire, 22. Smt. Bhagwati bai (PW) has turned hostile. In cross- examination, She admitted that She had heard that Naribai was burnt. She admitted that the appeHant and Naribal were residing together in a one room accommodation. She admitted that the appellant used to beat Haribai under the influence of aleohol. She was further cross- examined by defence and She denied that the appellant never used to beat her ar was keeping her properly. 23. Smit. Panchobai (P.W.2) turned hostile. 24. Rajaram (P.W.3) has stated that Kamal Patel had called him by informing that wife of Babbu is to be taken to hospital, therefore, he should come along with Tractor and Tralley. In crass-examination, he stated that Naribal was not moving and was also not speaking. He had started from village at 11:30 and reached hospital at about 12:60, and She was admitted at 12:30, 25. Karmal Singh Raghtuwanshi (PWidhis the owner of tractor and ? Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) trolley. Kallu had come and informed that his Bhabhi has sustained burn injuries, therefore, She is to be taken to hospital and asked for tractor and accordingly Harfbai was taken to Siron} Hospital. This withess was crass-cxamuted. He stated that Haribai had sustamed extensive burns and was net speaking, 26. Sw Qureshi (PW.7} has stated that affer obtaining fitness certificate from Dr. Agarwal, he had recorded the staferment and obtamed her thumb impression. This witness was cross-examined, In cross-examination, he stated that requisition was received in the police station at 23:30 and immediately thereafter, he went to hospital. He reached hospital within 3 minutes from the police station. His true that the injured was in a bernt condition but dented that She was unconsemus. He also denied that She was not in a position to speak. He denied that the appellant was also present in the hospital. Ne on his own stated that he might be outside the hospital. He denied that the injured had informed that She got burnt while preparing Chappati. He denied that he was not informed about quarrel with the appellant. Ne denied that he had recorded the statement on his own. 27. Rishi (PWS) is Naib Tahsildar and had recorded the dyime declaration of the deceased. Before recording statement, She had obtamed the fitness certificate. The injured had disclosed her name as Naribai. She stated that initially, her husband (appellant) under the influence of alcohol assaulted her by Befan, thereafter by danda and Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) then he set her on fire. She also stated that it was 10-11:00, She also stated that She and appellant were alone in the house. She further stated that after setting her on fire, he started sculfing and thereafter Shanti poured water. Thereafter, they took her to hospital. Her brother-in-law is a good person and also resides with them. He had pone out after having his meals. They were allegmg that the myured isa prostitute and the appellant used te beat her from the date of marrige. Marriage took place about 8-9 years back and has 1 daughter. Simec, the injured was not literate person, therefore, her thumb impression was taken. The dying declaration is Ex. P.7. This WHNeSs Was cross-cxamined, 28. In cross-examination, this witness stated that She had received requisition from Police Station Sironj]. Her office is about | km away from Hamidia Hospital. She went to hospital affer receiving the requisition for recording dying declaration. She denied that the injured was not ina position te speak. HMaribai had 80-85% burns. 29. WKallu Ahtrwar (PW. 9) is the brother-in-law of the deceased and has stated that the deceased had got burnt while preparing food and was shifted to hospital in a tractar and trolley. Thereafter, She was shifted ta Hamnudia hospital where her treatment cuntmued for 2- 3 days and then She died. She got burnt accidentally while preparing food and ne body had burnt her In crass-examination he admitted that he, his wife, his mother, appellant and the deceased reside m the same house. At the time of ineident, he and the appellant were sitting q Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) outside the house. 30. Gayabai (PW. 10) has stated that She had come to know that Haribai has suffered born mjuries but She was never beaten by the appellant, 31. Dr Dhanesh Tripathi (PW. 11) has stated that he had examined Haribai on 13-3-2007 at 445 BM. and She was well onented and was inva fit state to give statement. The report is Ex. PRS. tis net out of plsee to mention here that Rishi (PWS) had recorded the dying declaration of the myured/deceased, Ex. P and Dr. Dhanesh Tripathi had given fitness certificate and the sani fitness certificate given on the dying declaration, Ex.P.7, has been marked as Ex. P.8) 32. Nagendra Kumar Pateria (P.W.12) is the investigating officer. SAG. Qureshi (PW U7) had conducted enquiry on the requisition recetved from hospital and thereafter, he had registered the FIR, Ex, PO under Section 307 of IPC. The injured Naribai died during treatment and merge miormation was recerved and accordingly, merg ulimation, Ex, P10 was registered. The spot map was prepared on 13-3-2007, Ex. Pl. He had seized one plastic container of 3 Hter with fh. OF Kerosene O11 one barnt blouse with smell of kerosene ail, ene match, one black colored thread stamed with kerosene ail, safety pin, locket, broken piece of sky colour bangles, burnt preces af hairs with smell of kerosene ofl, one 1&0 mi bettle with 40 mi of country tiade fiquor, one white coloured plastic bag vide serure momo Ex. BLS. The seured articles were served on the spot itself The ig Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) appellant produced one sky coloured shirt vide seizure memo Ex, P13. The appellant was arrested vide arrest memo Ex. Bid. The appellant had burn marks on his hand and accordingly, he was sent to Sirony Hospital. The statements of the witnesses were recorded. The seed articles were sent to F.S.L, Sagar by memo Ex. PIS and the FSL report is Ex. P16. This witness was cross-examined. 33, tn cross-examination, he stated that the articles seized vide seizure memo Ex. P12 are easily available in the market. He admitted that the appellant had burn injuries therefore, he was sent for medical examination, Ne stated that the appellant and his brother sf ¥ fe e sides separately and not jomdly, 34. Tt is submitted by the Counsel for the appellant, that since, Kalki Ahinwar (PW. 9) has stated that the deocased had got burnt accidentally and as he was not declared hostile, therefore, his evidence is binding on the prosecution. 35. Considered the submissions made by the Counsel for the appellant. 36. Since, Kallu Alirwar (PW) was not declared hostile, therefore, whether this Court is bound by his evidence or can appreciate his evidence in the ght of the surrounding circumstances? The Supreme Court in the case of Dayal Singh Vs. State of Utfaranchal reported in (2012) 8 SCC 263 has held as under : 30. With the passage of time, the how also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely mm the Ii Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) hands of the parties. Crime is a public wrong, in breach and viedation of public rights and duties, which affects the community as a whole and is harmful to the society im general. 31. Reiterating the above principle, this Court in NAARC v. Siete of Gujarat held as under: (SCC pp. 777-78, para 6} "6... "38. ... The concept of fair trial entails familiar society and it is the commumity that acts through the State and prosecuting agencies, Interest of society is nat to be treated completely with disdain and as persona non grata, The courts have always been considered to have an averriding duty to maintain public confidence in the administration of pustice---often referred fo as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a contiuous process, not confined to determination of the particular case, protecting is ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge niust cease to be a spectater and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, te find out the truth, and administer justice with faimess and unpartiality both to the parties and to the community it serves. The courts administering criminal justice cannot tarn a blind eye fo vexatious or oppressive conduct that has accurred im relation to proceedings, oven fa far trial is sull possible, except at the risk of undermining the fhir name and standing of the Judges as impartial and independent adjudicators." (Zahira Habibullah case, SCC p. 395, para 3ay° 32. In State of Karnataka vo K. Yerappa Reddy this Court oceasioned to consider the similar guestion of defective investigation as ta whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720) "79 Wut can the above finding (that the station house diary is mk genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? it can be a guulmg prinemle that as investigation ms not the solitary {3 Lat Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) area for judicial scrutiny in a criminal trial, the conclusion ofthe court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the invesiigation is egal ar even suspicious the rest of the evidence must be scrutinised independently of the nmpact of i. Otherwise the crimmial trial will plummet to the level of the tvestigating officers ruling the roost. The court must have predominance and pre-eminence in ernminal trials over the action taken by the investigating afficers. Criminal qustice should nat be made & casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is truc the court is free to act on it albert the investigating officer's suspicious role in the case." 33. In Ram Balt v. State af COP the judement in Karrel Singh vy. State of AYP was reiterated and this Court had observed that: (Ram Bali case, SCC p. 604, para 12) "f2.... Inease of defective investigation the court has to be circumspect [whl e] evalaating the evidence. But it would not be rmyeht in acquitting an accused person solely on account of the defect; ta do so would tantamount to playing into the hands of the investigation officer uf the investigation is designedly defective." 34. Where our criminal justice system provides safeguards of far trial and innocent ull proven guilty to an accused, there it also contemplates that a erimimal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and arder be mamtained. The courts do not merely discharge the fomotion te ensure that no innocent man is pimished, but also that a gouty man does not escape. Both are public dates of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to nusdirect the trial on the basis ef a perfunctory or designedly defective investigation, there the Court is to be deeply cautivus and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this objeet of a "arr trial", the Court should leave no stone unturned to do justice and protect the interest of the society as well, 37. Thus, it is clear that the Court can make overall assessment to reach to a conclusion and is not bound by the evidence by i ia Babbu Alinwar de Babulal Abirwar Vs. State af MUP. (Cr A. No. 283 of 2009) prosecution, 38. Ifthe evrience of Kallu Ahirwar (PW. 9) as considered in the ieht of evidence of Nagendra Kumar Pateria (PAW. 12}, then i is clear that one plastic container of 5 liter with | it. OF Kerasene Oil, ane burnt blouse with smell of kerosene oi], enc match, one black colored thread stained with kerosene ol], safety pin, locket, broken piece of sky colour bangles, burnt pieces of hairs with smell of kerosene of], one 180 ml bottle: with 40 mi of country made liquor, one White colour plastic bag were setzed vide seizure memo Ex, P12, Further more as per FLS-L. report, Ex. P16, remains of kerosene ofl were found in plastic container, sem burnt blouse, black thread, safety pin, locket, semi burnt hans, synthetic bag. match box, and semi burnt shirt of appellant. Thus, it is clear that all the articles which were found on the spot were having kerosene of] on them. Thus, the evadenee of KRallu Abirwar (P.W.9) that the deceasext got burnt accidentally while preparing food in Chufha is not reliable, because im that situation, kerosene oil would mot have been found in all the articles, including the shirt of the appellant. 30 Further, it was the dying declaration of the injured/deceased that the appellant was under the influence of aloohol, One battle of 1SOmil sive with 40 ml of country made liquer in it was also found fram the spat. Thus, the recovery of country made liquor from the spot, further corroborates the dying declarations of the deceased, 40. Thus, this Court is of the considered opinion, that the dyme ta or Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) declaration of the deceased, Ex. P? and the fhet that the appellant was residing along with the deceased and he was present an the spot at the time of incident are the important circumstances on which the prosecution has placed reliance. 41. The contention of the Counsel for the appellant. that since the injured had sustained extensive burns, therefore, she was not a in fit state of mind is concerned, the same is misconceived and is Hable to be rejected. 42. The Supreme Court in the case of Purshottam Chepra vy. State (NCT ef Delhi), reported in (2620) LE SCC 489 has held as under : Adimission and aceeptability of dying declaration: The principles 18. The principles relating to admission and acceptability of the statement made by a victim representing the cause of death, usually referred to as a dying declaration, are well settled and a few doubts as regards pre-requisites for aceeptability of a dying declaration were also put at rest by the Constitution Bench of this Court in Laxman v. State of Maharashtra. TRE. In the sand case af Laxman, canviction of the appellant was based on dying declaration of the deceased which was recorded by the Judicial Magistrate. The Session Judge and the High Court found such dying declaration to be trathfal, voluntary and trustworthy, and recorded conviction on that basis. In appeal to this Court, it was urged with reference to the decision in Paparamdaka Resanuna wo State of AP that the dying declaration could mt have been accepted by the Court to form the sole basis af conviction simes certification of the dectar was not to the effect that the patient was im a fit state of mind to make the statement. On the other hand, if was contended an behalf of the State, with reference to the decision in Kol? Chunilal Savi v. State of Gujarat, that the material on record indicated that the deceased was fully conscious and was capable of making a statornent; and hus dying declaration aa teewn Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) cannot be ignored merely because the dector had not made the endorsement about his fit state of mind to make the statement. In view of these somewhat discordant notes, the matter came to be referred to the larger Bench. 18.2. The Constitution Bench in Lavwnan summed up the principles applicable as regards the acceptability of dying declaration in the following: (Lowman case, SCC pp. 713- id. para 3} "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is sllenced, and the man is induced by the mast powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species af evidence on avcount af the existence of many circumstances which may affect their truth. The situation im which a man is on the deathbed is so solenm and serene, is the reason in law to accept the veracity of his statement. Rois for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no pawer of cross-cxamination, the courts insist that the dying declaration should be of such a mature as to mspire full confidence of the court im Hs trathfidness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product af imagination. The court also must further decide that the deceased was in a Tit state of mind and had the epportimty to observe and identify the assailant. Narmally, therefore, the court m 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 eyewitnesses state that the deceased was ina fit and conscious state to make the declaration, the medical opinion will not prevail, nor can i be said that since there is no certification of the doctor as to the fiiness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral ar in writing and any adequate raethed of communication whether by words or by signs or otherwise will suffice provided the indication is postive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone hke a Magistrate or 3 {6 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to dic. There is no requirement af law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such -- recording. Consequently, what evidential valuc or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was ina fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration ean be acted upon provided the court ultimately holds the same to be voluntary and trothfal. A certification by the doctor is essentially a mule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise" 18.3. The Constitution Bench affmmed the view in Acoli Chunilal Savji while holding that Puperumbaka Rosamma, was not correctly decuied. The Court sakh (Laveen case, SCC p. TES, para §) "S, ... Teas indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was ne certification that the patient was in a fit state ef mind especially when the Magistrate categorically stated im his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was nt a fit state of mind whereafier he recorded the dying declaration. Therefore, the judgement af this Court in Puparambaka Rasamme v. State of ALP must be held to be not correctly decided and we affirm the law laid down by this Court in Koff Chwatlal Savi v. State of Gujarat." 19. In Dal Singh case, this Court has pointed out that the law does not provide as to whe could record dyme declaration ner is there a prescribed format or procedure for the same. All that is required is the person recording dying declaration must be satisfied that the maker is in a Hit state of mind and is capable of making such a statement. This Court also pointed out that as fo whether in a given burn iT id Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) case, the skin of thumb had been completely burnt or if some part of h will remain intact, would alsa be a question of fact. This Court said: (SCC p, 167, paras 20-22) "ot. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, ar procedure for the same. The person who records a dying declaration musi be satisfied that the maker is ina fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor i respect of such states of the deceased, is not essential in every case, Jf. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to eross- examination. Hawever, the court may not leok for corroboration of a dying declaration, unless the declaration suffers from any infirmity. s2. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns tm the body, the skin ofa small part of the body ie. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the rrdges and curves had remained intact." 19.1. In Bhagwan, this Court accepted the dying declaration made by a person having suffered 92% burn injury and whase continued consciousness was certified by the doctor, This Court referred to the decision in Fijay Pal vy. Sterte iNCT of Delhi}, where the statement made by the victim having suffered 100% burn injury was also aceepted, This Court said: (Bhagwan case, SCC pp. 106-107, paras 24-25) "(B} Can a person who has suffered 92% burn injuries be in a condition te give a dying declaration? 24, This question is also no longer res integra, In Fijay Pal v. State (NCT af Delhi}, we notice the following discussion: (SCC p. 739, paras 23-24) "23. Te is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could net have made any statement to her brother. In this regard, we may profitably refer to the decision in Afafabhai Nagarbhei Raval vo State of Cujara' wherein it has been held that a person Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) suffering 99% burn infuries could be deemed capable enough for the purpose of making a dying declaration, The Court m the said case opmed that unless there existed some inherent and apparent defect, the trial court should mot have substituted its opinion for that ef the decter. In the ght of the facts of the case, the dying declaration was found to be worthy of rehance. 24. in State of MP vy. Dal Sigh, a two-Judge Bench placed rehance on the dymg declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible." 25, Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise mispires the confidence of the Court and is free from tutoring, and can be found reliable." 20. In Gian Kaur, the dymeg declaration was disbelieved on the ground that though as per medical evidence the appearing on the dying declaration had clear ridges and curves. The benefit of doubt extended by the High Court was found fo be not unreasonable and hence, this Court declined to interfere while observing as under: (Gian Kaur case, SCC p, 943, para 5} "5. The High Court disbehiewed the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found the evidence of Dr Ajay Sahni-PW 1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically staied that there were 100& burns over her body and beth the thambs of Rita were burnt. In view of such incansistent evidence, the High Court was right in giving benefit of doubt to the respondents. [i cannot
be said in this case that the High Court has taken an unreasonable view"
20.1. In Gopalsingh, the Court. found that the dying declaration did not contain complete names and addresses of the persons charged with the offence and it was found that conviction could not be based on such dying declaration alone without corroboration. Essentially, for the iu Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) infirmity carried by such dying declaration, this Court found lesser justification for the High Court's interference with the order of acquittal while observing as under: (SCC p. 272, para 8} "8. Bat even oY we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was eertainky nat of that character as would warrant its acceptance without corroboration. [ft is settled law that a court is entitled to conviet on the sole basis of a dying declaration if itis such that in the circumstances of the case it can be regarded as truthfil, On the other hand if on account of an infirmity, mt cannot be held to be entirely rehabie, corroboration would be required."
20.2. In Dalip Singh, the alleged dying declaration turned oat to be deabtful for i contained such facts which could not have been in the knowledge of the deccased and hence, this Court found it unsafe to rely on the same while observing as under: (SCC p. 335, para 9} "8... The dying declaration seems to be otherwise truthfal but for the fact that it could not be within the knowledge or vision ef Teja Singh that Jetha Singh was murdered by the appellants. His saying so m the dying declaration makes his statement a bit doubtful. It is, therefore. safe to leave out of consideration this dying declaration."
20.3. In Taueukana: Pompiah, this Court held that while a truthful and reliable dyimg declaration may form the sole basis of conviction, ever without cerroboration but the Court must be satisfied about its truthfulness and reliability; and if the Court finds that the declaration is not wholly reliable and a material portion of the deceased's version of the occurrence is untrue, the Court may, in the circumstances of a given case, may consider Ht unsafe to convict the accused on the basis of the declaration alone without further corroboration. This Court observed, inter aha, as under: (AIR p. 941, para 9} "@ Under clause (]) of Section 32 of the Evidence Act, I872, a statement made by a person who is dead, as to the cause af his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person's death comes info question, and such a statement 1s relevant whether the person who made it Was or was not, at the tine when it was made. under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death a0 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) comes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case, A truthful and reliable dymg declaration may form the sole basis of convictuen, even though if is not corroborated. But the Court must be satisfied that the declaration is truth. The reliability of the declaration should be subjected to a close scrutiny, considernig that it was made in the absence of the accused who had no opportumity fo test ifs veracity by cross- examination. Uf the Court finds that the declaration ts not wholly reliable and a material and integral portion of the deccased's version of the entire oecurrence Is untruc, the Court may, in all the circumstances of the case, consider Hf unsafe to convict the accused on the basis of the declaration alane without further corroboration."
20.4, In Gkea Ram, this Court again emphasised on fhe requirement fhat the Court should be satisfied about trustworthiness of the dying declaration, its voluntary nature and fitness of the mind of the deceased and it was held that:
(SCC p, 257, para 6) "6. ... Onee the court is satished that the dying declaration was true, voluntary and not influenced by any extraneous consideration, if can base its conviction without any father corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence."
20.4.5. In the said case of Oka Ram, however, the Court found that the deceased was a mental patient and there existed a doubt about mental condition of the deceased at the time of making the dying declaration. In the given ciretmatances, this Court found that to be a fit case to extend the benefit of doubt to the accused.
21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be uscftlly summed up as under:
21.1. A dyme declaration could be the sole basis af conviction even without corroboration, if H inspires confidence of the court.
21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that if was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of rind of the 2] Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) declarant or of like nature, it should not be acted upon without corroborative evidence.
21.4. When the eyewitnesses affirm that the deceased was not ina it and conscious state ta make the statement, the medical opinion cannot prevail.
21.5. The law does not provide as to who could record dying declaration ner there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.
21.6. Although presence of a Magistrate is nat absolutely necessary for recording of a dying declaration bul te ensure authenticity and credibility, itis expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persans present af the time of recording the dying declaration.
21.7. As regards a burns case, the pereentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration: and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
21.8. Wafier careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and alse finds i colerent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.
22. Applying the relevant principles to the facts of the present case, we have not an iota of doubt that the appellants have righthy been convicted on the basis of the statements of the vietm Sher Singh, as recorded by PW 8 Dr Sushma and PW 16 ST Rajesh Kumar,
43. Modi in his Medical Jurisprudence has classified the burn injuries in three types of burns ie., Epidermal Barns, Derme- Epidermal burns and Deep Burns. Epidermal Burns include First and Second Degree burns, whereas Dermo-Epidermal Burns include Third and Fourth Degree burns and Deep Burns include Filth and Sixth Degree Burns.
44. First Degree burn consists of erythema or simple redness of x2 pes) Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) skin caused by momentary application of flame or hot solids, or liquids much below boiling pot, whereas Second Degree burns comprise acute inflammation and blisters produced by prolonged application of a flame, liquids at boiling point or solids much above boiling point of water. Third Degree burn refers to destruction of cuticle and part of the true skin whereas in Fourth Degree burn, the whole skin is destroyed. Fifth Degree burn includes penetration of deep Tascia and implications of the muscles resulting in great scarring and deformity, whereas Sixth Degree Dura involve charring of whole lob inchiding the bones and ends in inflammation of subjacent tissues and organs.
<y
45. Similarly in order to estimate the amount of area affected by Second or third degree burns in percentage, the body is divided into different areas, each represented by nine percent. This methad of calculation is also known as Reale of Nine.
46. Thus, the area which has suffered burn injuries and the degrees of burn are the important aspects which determines as to whether the injured would be im a pasition to speak or not. Thus even if extent of burn may be 100%), but it would not be sufficient to hold that the patient would not have been in a condition to speak. Thus, it is held that not only the witnesses have stated that the deceased was in a fit state of mind and She had given dying declaration or statement, but the Doctors have alse certified that She was well oriented and was in fet stafe of mind, eS eet Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009)
47. %t is well established principle of law that there is no mandatory requirement of obtaining fitness certificate from the Doctor, and if the witness whe recorded the dying declaration was satished that the injured is im a fit state af mind, then the dyme declaration can be recorded, even without any fitness certificate. The Supreme Court in the case of Laxman v. State of Maharashtra, reported m (2002) 6 SCC 710 has held as under :
8. The Court also in the aforesaid case relied upon the decision of this Court in Hani Aaur v. Stare of Puniah wherein the Magistrate mm his evidence had stated that he had ascertained from the doctor whether she was in a fil condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration bat on the appheation would not render the dying declaration suspicious in any manner. Por the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paperambuka Rosamma v. State of A.P (at SCC p.
701, para 8) to the effect that ~ "in the absence of a medical certification that the iyured was ima fit state of mind at the time of making the declaratiom, it would be very much risky to accept the subjective satisfaction of a Magistrate whe opined that the injured was in a fit state of mind at the time of making a declaration"
has been tog broadly stated and is not the correct enunciation of law. [tis indeed a hypertechnical view that the certification of the docter was to the effect that the patient is conscious and there was no certification that the patient was moa fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had pat to the pahent and from the answers elicited was satisfied that the patient was ma fit state of mind whereafter ke recorded the dying declaration. Therefore, the judgment of this Court in Paparamiaku Rosamma v. State of AP must be held to be not correctly decided and we affirm the law laid down by this Court in Kali Chunilal Savji v. State of Gujarat.
48. The Supreme Court in the case of Gavindappa v. Stafe of ¥8 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) Karnataka, reported m (2010) 6 SCC 3533 has held as under :
24... What is essentially required is that the person wha recorded the dyimg declaration must be satisfied that the deceased was ina fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature ef the declaration can be established otherwise, 49, The Supreme Court in the case of Jagbir Singh v. State (NCT of Delhi}, reported in (2019) 8 SCC 779 has held as under :
39, We can proceed on the basis that even absence of the eertificate by a doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person whe records the dying declaration must ensure that ihe patient was in a fit condition, both mentally and physically, to give the declaration, SQ. However, im the present case, Dr. Suresh Agarwal (PW. 6) had medically cxantined the injured before recordimge of her police statement, Ex. PS and Dr Dhanesh Tripathi (PW. 11) had medically examined the mjured before recording of her dyimg declaration, Ex. P.7 and endorsement by Dr Dhanesh Tripathi is Ex. P'S and both the Doctors found that the injured was well eriented and was ina fit state ofmind, Thus, it is held that the injured/deceased was in a fit state of mind to give statement/dying declaration. Si. Further, the appellant was admittedly residing with the deceased. Therefore, the burden is on him to explain that how, his wite died a homicidal death.
52. Yhe Supreme Court in the case of State of Rajasthan vy.
Kashi Ram, reported in (2006) 12 SCC 254 has held as under :
23. It is net nec scessary to multiply with authoriics. The prmeiple is well s ! ettled. The provisions of Section 106 of 25 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) the Evidence Act itselH' are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. Ho he docs so he mist be held to have discharged his burden. Hf he fails te offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In 4 case resting on circumstantial ewidence uf the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself! provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused docs not throw any light upon facts which are specially within fis knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his farure to adduce any explanation, as an additional link which completes the chain. The principle has been suceinetly stated in Nata Mohd., Re.
tty
3. The Supreme Court in the case of Tuishiram Sahadu Suryawanshi vy. State of Maharashtra, reported in (2012) 10 SCC 373 has held as under :
232. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be interred from certain other proved fsets. When inferring the existence of a fact from other set of proved facts, the court exercises a process af reasoning and reaches a logical comolusion as the most probable position. The above position is strengthened in view of Section [id of the Evidence Act, E872. If empowers the court fo presume the existence of any fact which at thinks Hkely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, ete.
in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act san also be uttlised. We make if clear that this section is not mtended toa reheve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but u weld apply fo cases where the prosecution has succeeded 26 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, faled to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation m State of IRB. vy. Afir Mohammad Qmar. (SCC p. 393, para 38) "38. Viwian Base, J, had observed that Sechan 106 of the Evidence Act is designed to meet certain exceptional cases in which # would be impossible for the prosecution to establish certam facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Afmer the learned fudge has stated the legal principle thus: CATR p. 404, para 11} "f7. This lays down the general rule that in a criminal vase the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which Ro would be impossible, ar at any rate disproportionately difficult, for the prosecution to establish facts which are "gapecially" within the knowledge of the accused and which he could prove without difficulty or INCONVETHENCE.
The word "especially" stresses that. Ho means facts that are opre-eminently or exceptionally within his knenwwledge"
S4. In the present case, the prosecution case hinges around the statement of the injured Haribai, Ex. BA, which was recorded after obtaining Fitness certificate, as well as the dying declaration, Ex. PY recorded by Naib-Tahsildar.8
tS SJ. Qureshi ¢(PW.7) and Rishi Morya (PWS) who had recorded police statement and dying declaration of the deceased, Ex. PS and B.? have specifically stated that the myured was in fit state of mind and was speaking. The police statement, Ex. BP. 3 was recorded after obtaming fitness certificate from Dr. Suresh Agrawal (PW. 6) 37 nF & Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) and dying declaration, Ex. P.7 was reearded after obtaining fitness certificate from Dr Dhanesh Tripathi (PWuiL}. Further, from the dying declaration, Ex. P?, itis clear that the injured/deceased did not try to over implicate any other m-laws and on the contrary, She had stated that her younger-brother-in-law namely Kalli Alirwar is a good person.
Sé A dying declaration, if found reliable, can be a sole basis for recording CORVICLION.
37. The Supreme Court in the case of Ravikumar v. State of TN, reported in (2006) 9 SCC 240 has held as under :
§. Section 32 of the Evidence Act, IS72 is an exception to the general rule against hearsay. Sub- section (1) ef 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 cireumsiances of the transaction resulting mm 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 fecling 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 falschood 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 ether tutoring ar prompting or ai product of imagination. The court has also fo sec and ensure that the deceased was in a fit state ef mind and had the opportunity to observe and identify the assailant.
Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) Normally, therefore, the court in order to satisfy fself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Onee the court is satisfied that the declaration was truc and voluntary, it undoubtedly, can base its conviction on the dymg declaration without any further corroboration. If cannet be laid down as an absolute rule of law that the dying declaration cannot farm the sole basis of conviction unless iH 1s corroborated. The rule requiring corroboration ts merely the rule of prudence. These well-settled principles have been recognised and reiterated by this Court in Puriben v. State of Gujarai, Uka Ram v. State of Rajasthan, Laxman v. State of Maharashtra, PE Radhakrishna vy. State af Karnataka; State of Maharastra v. Sanjay; Muthu Aunty v. State.
58. The Supreme Court in the case of Lalta Ghesh Vs. State of W.B. reported in (2019) 18 SCC 344 has held as under :
18. The courts cannot expect a victim like the deceased herem fo state in exact wards as to what happened during the course of the crime, inasmuch as if would be very dificult for such a victim, who has suffered multiple grievous injuries, to state all the details af the tneident meticulously and that too in a parrot-like manmer. The trial court assumed that the investigating officer in collusion with the doctor wilfully fabncated the dying declaration. It is needless to state that the investigating officer and the doctor are independent public servants and are not related either ta the acetsed or the deceased, It is not open for the trial cont ta cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication,
19. It cannot be laid down as an absolute rule of law that a dyme 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 net an attempt by the deceased to cover the truth ar to falsely implicate the accused, can be safely relicd upon by the courts and can form the basis ef conviction. More se, 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 ay Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) cmnts to doubt the truthfulness of such dying declaration.
S39, The Supreme Court in the case of Kalawati Ws. State of Maharashtra, reported in (2069) 4 SCC 37 has held as under :
f4. "/2, Though a dymeg declaration is entitled {to great weight, it is worthwhile to note that the accused has no power of cross-cxamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is ihe reason the court also insists that the dying declaration should be of such a nature as to mspire fill 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 tuloring, 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 identify the assailant, Once the court is satisfied that the declaration was true and voluntary, undoubtedly, 1f 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 ts corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several jodements the primeciples governing dying declaration, which could be summed up as under as indicated in Paniben vy. State of Gujarat: (SCC pp. 480-81, paras [8-19)
(f) There is nether rule of law nor of prudence that dying declaration canneat be acted upon without corroboration. (See Anan Raja v. State of ALP) (ff) Ifthe court is satisfied that the dying declaration is true and voluntary i can base conviction on it, without corroboration. (See Srere of CLF vy. Ram Sagar Yadav and Ramawati Dew v. State af Bihar} (if) The court has to scrutinise the dying declaration carefallvy and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunuy to observe and identify the assailants and was in a fit state ta make the declaration. (See AL Ramachandra Reddy vo Public Prasecutor)
(iv) Where a dying declaration is suspicious, if should not be acted upon without corroborative evidence.
(See Rasheed Beg v. State of MP} {v} Where the deceased was unconscious and could ee TF Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) never make any dyme declaration, the evidence with regard to itis ta be rejected. (See Aake Srigh v. Sate of Ath} Gv) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manerarh v. State of LP} (wii) Merely because a dye declaration does not contain the details as to the occurrence, it is not ta be rejected, (See State af Maharaxhtra vy. Krishneneerty Laxmipotl Naidu.) (wil) Equally, merely because it is a brief statement, i is not to be discarded, On the contrary, the shortness of the statement itself guarantees trath. (See Surejdea Ont v. State af Bihar)
(ix) Normally, the ecurt in order to satisfy whether the deceased was in a ft mental condition fo meke the dying declaration looks up te 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 Nenfanw Ram v, State af AWLP) ix} Where the prosecation version differs from the version as given im the dying declaration, the said declaration cannot be acted upon. (See Srate af OF vy. Madan Mohan.) {xy} Where there are more than one staternents m 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, if has to be aceepted. (See Mohanlal Gangaram Gehani v. State of Maharashira.y"--
see also Wohan Lal vy. State of Haryana, at SCC pp, PS3-53, para 10.
60). Purther the police statement recorded under Soction 161 of CrbC. is also be admissible under Section 32 of IPC. The Supreme Court in the case of Pradeep Bisol @ Ranjit Bisol Vs. State of Orissa reported in (2019) TY SCC $00 has held that the statement recorded under Section 16f of CrP.C. is admissible under Sectian 32 of Evidence Act.
Al Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009)
61. Thus, this Court is of the considered opinion, that the police statement, Ex. PS and the dying declaration, Ex. PL? are rehable documents. The deceased was ina iit state of mind. Her dying declarations, Ex. PS and PY are corroborated by the presence of kerosene of! in the incriminating articles as well.as the fact that the appellant was residing with the deceased and he has failed te explain as to how She suffered burn injuries, and the explanation given by Kallu Ahirwar (PW. 9) regarding accidental burn while preparing meals is not found plausible due ta presence of Kerosene OH] on the entire body of the injured and her cloths as well as broken pieces of bangles. Thus, the dying declarations, Ex. PS and P.7 are held to be reliable and can be a sole basis for conviction.
62. itis neat contended by the Counsel for the Appellant that since, the deceased Hartbat has stated in her dying declaration, Ex. P35 and P.?, that after setting her on fire. the appellant had also tied to extinguish her fire, therefore, the offence would be one under Section. 304 Part Pof IPC and not under Section 302 of IPC.
63, Considered the submissions made by the Counsel for the appellant.
64. The inured Haribai in her dying declarations, Ex. PS and 7 has stated that after She was set on fire, the appellant started quarreling (3eY ST } and extinguished. The fire was also extinguished by Shanti by pouring water. Now the only question for consideration is that after having set his wife on fire affer pouring a2 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) kerosene off her, whether the act of appellant in raking an effort to extinguish the fire would make his act punishable under Section 304 Part Poof IPC ar nat.
63. Yhe Supreme Court im the case of Suraj Jagannath Jadhav v. State of Maharashtra, reported in (2020) 2 SCC 693 has held as under :
8. Heard the learned counsel appearing on behalf of the respective parties at length. As observed hereinabeve, in the present appeal, the sole que stion which is pased for consideration of this Court is, w ether, i the facts and circumstances af the case, the case weuld fH under Exception 4 to Section 300 IPC or Section 300 Fourthly and, therefare, whether Section 302 IPC shall be attracted or the cuse may fall under Section 304 Part TPC?
8.4. It is the case on behalf of the appelant-original accused that as at the time when the meident took place, the accused was drunk and under the influence of hquor and he had no mtention to cause death of the deceased wite and that even subsequently the accused tried to seve the deceased and poured water on her and, therefore, the case would fall under Exception 4 to Section 300 IPC and, therefore the cuviction is to be altered from Section 302 TPC to Section 304 Part IL IPC, having rehed upon the decision of this Court in Kaly Raat. However, iis reqaired to be noted that, in the present case, the appcllant-accused poured kerosene on the deceased when she was trying to run out of the house to save herself and was trying to open the latch of the door of the house, the ac sensed threw the matchstick on her person and set t her' ablaze. Nothing is on record that the the ¢ conversation ) which took place 'betw een the deceased and the accused, so stated im the dying declaration given by the deecased, uf can safely be said that the accused Was in very onich conscious condition when the incident took place. He was very much in the senses and was conscious about what he was doing. Therefore, the accused was fully conscious of the fact that if kerosene is poured and maichstick is itand put on the body, a person might die due to burns. Therefore, the case would fall under Section 300 Fourthly, and Exception 4 ta Section 300 TPC shall not be applicable, 33 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) 8.2. An identical question came to be consiiered by this Court in Santas, In the said decision, this Court also had the occasion to consider the incbriation due to consumption afaicohol and when it may be said to be a mitigating {hctor.
In the said decision, this Court also considered the submissian made on behalf of the accused that as he attempted to extinguish the fire by pouring water on the deceased and himself getting burn infuries in that process and, therefore, the case would fall under Exception 4 to Section 300 IPC. In the similar facts and circumstances of the case, this Court in Seatesh has observed in paras 11 fo TS as under: (SCC pp. 645-46) "72, The question falling for consideration is whether the act of the accused pouring water would mitigates the offence of murder. Where the tention to kill is present, the act amounts to murder, where such an intention ig absent, the act amounts to culpable hamicide not amounting te nmrurder. To determine whether the affender had the intention or not, each case mrust be decided on iis facts and circumstances, From the facts and circumstances of the mstant case, if is evident that: (7) there was a homicide, namely, the death of Saraswatibai: (7) the deceased was set ablaze by the appellant and this act was not accidental or unintentional, and (/) the post-mortem certificate revealed that the deceased died due to shock and septicaemia caused by 60% barn injuries. When the accused poured kerosene on the deceased from the korasene lamp and also threw the hahted matchstick intended fo cause the death of the deceased. As seen from the evidence af PW 5, panch witness, in the house of the appellant, kerosene Lanyp was prepared in an empty liquor bottle. Whether kerosene was poured from the kerosene lamp or from the can is of no consequence, When there is clear evidence as to the act of the accused to set the deceased on fire, absence of premeditation will not reduce the offence of murder io culpable homicide not amounting to murder. Likewise, pouring of water will not mutigate the eravity of the offence.
f2. After attending fo nature's call, the deceased returned to the house a littl late. The acveused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fire. The act of pouring kerosene, though on the spur of the aa Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) moment, fhe same was followed by lighting a thereby setting her ablaze. Both the acts are mtimately connected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder.
i3, Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causmg impiry so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pourme of kerosene and setting her on fire by throwing a highted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death, /4, Insofar as the conduct af the accused im attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram cave, it was contended that such conduct of the accused would bring down the offence from mrarder to culpable homicide not amaunting to murder. In Ag/y Nam ease, the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her amaments so that he could purchase more Hquer, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed te concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to Hight the matchstick, the accused set her ablaze. But when he realised that the fire was Haring up, he threw water on her person im a desperate bid to save her In such facts and circumstances, this Court held that the accused would not have intended to inflict the myuries which she sustained on account of the act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part IPC.
/3, The decision in Xaly Raw case cannot be applied in the instant case. The element of inebriation ought to bs taken into consideration as if considerably alters the power of thinking. In the instant case, the accused was in his complete senses, knowime fully well the consequences of his act. The subsequent act of pouring water by the accused on the deceased also appears fo be an attempt te cloak iis guilt sinee he did it only when the deceased screamed for help. Therefore, it Lad aa Babbu Alnrwar G6 Babulal Ahinws r Vs. State af MUP GCr A. No, 283 of 2069) cannot be considered as a mifigating factor, An act undertaken by a person in full awareness, knewwing its consequences cannot be treated on a par with an act committed by a person in a highly inebriated condition where his faculty of reason becomes blarred." 8.3. In Bhagwan, while considering the defence of the accused, at the time of pering the kerosene and lighting a matchstick, he was under the imfluence of Hquer and mioxication and, therefore, the intoxication can be said to be a mitigating circumstance and, therefore, the case would fall under Exception 4 to Section 300 IPC, this Court negatived the said defence by observing in paras 12 and 13 as tunter: (SCC p. 276) "72. Intoxication, as such, is not a defence to a criminal charge. At times, it can be considered to be a mitigating circumstance if the accused is net a habitual drinker, otherwise, Ht has to be cansidered as an ageravaling circumstance, The question, as to whether drunkenness is a defence while determining sentence, cane up for consideration before this Court in Badly v. State of Rajasthan, wherein this Court held (SCC p. f29, para 12} that the defence of drunkenness can be availed af only when intoxication produces such a condition as the accused loses the requisite imfention for the offence and onus of proof about reason of intoxication, duc to which the accused had become incapable of having particular knowledge im forming the particular mitention, is on the accused. Examining section 85 TPC, this Court held that the evidence of drunkenness which renders the accused incapable of forming the specific intent essential ta canstitute the crime should be taken info account with the other facts proved in order to determine whether or not he had the intention, The Court held that merely establishing that his mind was affected by drink so that he more readily gave way to same violent passion, docs not rebut the presumption that ao oman intends the natural consequences of his acts. This Court, in that case, rejected the plea af drunkenness after noticing that the crime committed was a brutal and diabolic act. f3. We find it difficult to aceept the contention of the counsel that since the appcllant-accused was under the tmfluence of liquor, the offence will fall under Section 304 Part Lor Seetion 304 Part 1. A-1 was presumed to know the consequences of his action, of having lit the matchstick and set fire on the saree of the deceased, after A-2 sprinkled kerosene on her body. In our view, a6 Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) the accused was correctly charge-sheeted under Section 302 IPC and we find no reason to imerfere with the conviction and sentence awarded by the trial court and affirmed by the High Court."
9. Therefore, the decision of this Court in Xela Ram upon which reliance has been placed by the learned counsel appearing on behalf ef the appellant-accused shall not be of any assistance to the accused, more particularly, in absence inebriated condition and/or he was so drunk that he lost all the senses.
iQ, Applying the law laid down by this Court in Bhegwaer and Santosh to the facts of the oase an hand and the manner in which the accused poured kerosene on the deceased and, thereafter, when she was trying fo run away from the room to save her, the accused came from behind and threw a matchstick and set her ablaze, we are of the apuiion that the death of the deceased was a culpable homicide amounting to murder and Section 300 Fourthly shall be applicable and not Exception 4 to Section 300 IPC, as submitted on behalf of the accused. We are in complete agreement with the view taken by the learned trial court as well as the High Court convicting the accused for the offence punishable under Section 302 IPC.
66. Thus, merely because the appellant had tricd to extinguish the fire after setting her on fire, this Court is of the considered opinion, that the subsequent act of the appellant would not be indicative of fact that he never intended to RHE his wife. The gruesome act of pouring kerosene oll and setting his wie on fire wotld clearly indicate intention and knowledge on the part of the appellant to kul his wife. 67, Itus next contended by the Counsel for the appellant, that since, the appellant was under the influence of aleohal, therefore, he was not ma position to understand the gravity of his get.
68. Considered the submissions made by the Counsel for the appellant.
aq Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) oo. Seetion 85 of Penal Code reads as under ¢ 8&5. Act of a person Incapable of judement by reasen of intoxication caused against his will----Nothing is an offence which ix donc by a person who, at the time of doing it, is, by reason af intoxication, incapable of knawing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him withoat his knowledge or agaist his will, ~
70. In order to take benefit of Section 8S of Penal Code, the appellant must prove that thing which intoxicated him was administered to him witheat his knowledge or against his will Getting intoxicated due te voluntary consumption of hquor would not bring the provision of Section 85 of Penal Code into play.
fl. The Supreme Court in the case of Bablu Vs. State of Rajasthan reported in (2006) 13 SCC 116 has held as under :
fi. Section 8S IPC deals with act af a person incapable of judgment by reason of intoxication caused agamst his will, As the heading of the provision itscl! shows, mtoxicatian must have been against his will and/or the thing with which he was intoxicated was administered to him without his knowledge. There is no specific plea taken in the present case about intoxicant having administered without the appellant's knowledge. The expression "without bis knowledge" simply means an ignorance of the fact that what is being administered to him is or contains or is med with an intoxicant, 72, Section 86 of Penal Code reads as under :
$6. Offence requiring a particular Intent or knowledge committed by one wha is Intoxicated ----In cases where an act done is not an offence unless done with a particular knowledge or intent, 8 person who docs the act in a state of imiftoxication shall be Hable to be dealt with as if he had the same knowledge as he would have had Wf he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will?
As Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) wl ied
3. Yhe Supreme Court in the case of Shanakar Vs. Jaiswara VWs.
Stafe of WB. reported in (207) 9 SCC 360 has held as under :
22. This Court in Basdev v. State of Pepsi while construing Section 86 IPC observed: (AIR pp. 489-90, paras 4-6) "dA. Tt is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason ef this omission. {ff in voluntary drankenness knowledge is to be presumed im the same manner a there was no drunkenness, what about those cases where mens rea is required, Are we at liberty to place intent on the same footing, and if se, why has the section omitted intent in is latter part? This is not the first Gme that the question comes up for consideration. It has been discussed at length im many decisions and the result may be briefly sumimarised as follows:
5. So far as knowledge is concerned, we must attribate io the intoxicated man the same knowledge as if he was quite sober. But so far as intent or mtention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of mtoxication, Was the man beside his mind altogether for the time being?
If se it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts # could be found that he knew what he was about, we can apply the rule that a tan is presumed to intend the natural consequences of his act or acts.
G. OF course, we have to distinguish between motive, intention and knowledge. Motive is samething which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other amd mean the same thing more or less and intention can be presumed from knowledge. The demarcating Ime between knowledge and mtention is ne doubt thin but iis not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount af confusion."
23. The learned amicus curiae, however, relied upon the AN Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) judgement in| Mandru Gadaba, In re im suppert af his submissions. [It is not necessary to consider the jadement to the effect of the observations masmuch as the charge against the aceused therein was under Section 304 and not under Section 302, 24, On consideration of various authorities including the decision rendered by the House of Lords in Director of Public Prosecutions vo Beard the law is neatly summarised in Russel on Crime in the following words:
"There is a distinction, however, between the defence of insanity mm the trac sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes imeapable of forming a specific intention. If actual insanity in fact superwenes as the result of alcohohe excess, it fiirnishes as complete answer fo a criminal charge as insanity mduced by any other cause. But in cases falling shert of imsanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential te constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent. bet evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way ta some violent passion docs not rebat the presumption that a oman intends the natural consequences of his act."
24. In Bablu v. State of Rajasthan this Court held: (SCC p. 129, para 12} "12, The defence of drunkenness can be availed af only when infoxication produces such a condition as the accused joses the requisite mtention for the offence. The onus of proof about reason of intoxication dec to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. Basically, three propositions as regards the scope and ambit of Section 85 [PC are as follows:
(i) the insanity whether produced by drunkenness or otherwise is a defence to the crime charged:
(i) evidence of drunkenness which renders the accused incapable of formime the specific imtent essential to constitute the crime should be taken into account with the other facts proved in order to 4g Babbu Alnrwar G Babulal Alurwar Vs. State af MUP (Cr A. No. 283 of 2009) determine whether or not he had this intent: and the evidence of drunkenness falling short of a proved incapacity in the accused to form the mtent necessary to comstitute the crime and merely establishing that his mind is affected by drink se that he more readily gave to some viclent passion, does net rebut the presumption that a oman intends the natural consequences of his acts.
(emphasis supplied) 74a. Thus, im the ight of the jadgment passed by the Supreme Court in the case of Suraj Jagannath Jadhav (Supra) if cannot be held that merely because the appellant had also tried to extingutsh the fire, therefore, he had ne mention to hall his wife. Yhus, the act of the appellant would he a clear case of murder being punishable under Section 302 of IPC and would net amount to culpable homicide not amounting to murder.
73, Accordingly, the conviction of the appellant for offence under Section 302 of IPC is hereby affirmed.
76. So far as the question of sentence is concerned, the minimum sentence is Life Imprisonment. Therefore, the sentence awarded by the Trial Court docsnot call for any interference.
77. Ex-consequenti, the judgement and sentence date 28-2-2009 passed by Additional Sessions Judge. Siranj, Distt. Vidisha in §.T. No. 179 of 2007 is hereby Affirmed.
78. The appellant is in jail, He shall undergo the remaining jail sentence, 79, Let a copy of the padement be provided immediately to the appellant, free of cost.
Al Babbu Ahinwar Vs. State of MUP. (CYA. No. 283 of 2009)
80. The record of the Trial Court be send back immediately with a copy ofthis pidgment for necessary miormation and compliance, Si. The appeal fails and is hereby Dismissed.
(G.S. Abhuwalia) (Deepak Kumar Agarwal} Judge Judge