Narayan Dutt Joshi vs State Of Uttarakhand on 14 July, 2017

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Uttarakhand High Court

Narayan Dutt Joshi vs State Of Uttarakhand on 14 July, 2017

Bench: Rajiv Sharma, Sharad Kumar Sharma

                                            RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


            Criminal Appeal No.314 of 2012

Narayan Dutt Joshi                                    ....... Appellant.
                                  Versus

State of Uttarakhand                                   .....Respondent


Mr. Devesh Upreti, Advocate for the appellant.
Mr. D.K. Sharma, Senior Addl. Advocate General assisted by Mr. N.S. Kanyal,
Brief Holder for the State.


                                            Reserved on:11.07.2017
                                            Delivered on:14.07.2017

Coram : - Hon'ble Rajiv Sharma , J.

Hon'ble Sharad Kumar Sharma, J.

Per : Hon'ble Rajiv Sharma , J.

This criminal appeal is instituted against the judgment dated 29.08.2012 and order dated 30.08.2012 rendered by learned Sessions Judge, Pithoragarh in Sessions Trial No.17 of 2011 whereby accused/appellant was charged with and tried for the offences punishable under Sections 302, 323, 504 & 498A of IPC. He was convicted under Sections 302, 323, 504 & 498A of IPC. The trial court has sentenced the accused/appellant to undergo imprisonment for life with fine of Rs.10,000/- under Section 302 IPC and in case of default of payment of fine, to undergo imprisonment for a further period of six months. He was further sentenced to undergo two years rigorous imprisonment with fine of Rs.2,000/- under Section 498A IPC and in case of default of payment of fine, to undergo imprisonment for a further 2 period of two months. He was also sentenced to undergo two years rigorous imprisonment under Section 504 IPC and he was also sentenced to undergo one year rigorous imprisonment under Section 323 IPC. All the sentences were ordered to run concurrently.

2. The case of the prosecution, in a nutshell, is that PW-1 Dipti Joshi has lodged first information report on 28.06.2011 to effect that on 27.06.2011 at 11.30 p.m., they were in their house. Her father was quarrelling with her mother. He poured kerosene oil on her mother and put her on fire. She tried to save her mother but her father started beating her. Her mother received severe burn injuries. The neighbours reached at the spot and put off the fire. Her mother was admitted in the hospital. She died on 04.07.2011. She had made two dying declarations, one on 28.06.2011 and another on 30.06.2011. These dying declarations were taken by PW- 4 Naresh Durgapal. The post mortem was conducted by PW-5 Dr. Tribhuwan Prasad. The matter was investigated and Challan was put up before the Court after completing all the codal formalities.

3. The Prosecution, in order to prove its case examined as many as eight witnesses.

4. Thereafter, the statement of the accused/ appellant was recorded under Section 313 Cr.P.C. He has denied the case of the prosecution and claimed to be tried. According to him, he used to be in tension due to his daughter Dipti. His wife used to take side of his daughter. His wife was also responsible for his son going 3 astray. He left his study. He used to remain hungry. His wife has committed suicide. Accused/appellant was convicted and sentenced as noted hereinabove. Hence the present criminal appeal.

5. Learned Advocate appearing for the accused/ appellant, has vehemently argued that the prosecution has failed to prove its case against the accused/appellant.

6. Learned Senior Addl. Advocate General appearing for the State, has supported the impugned judgment dated 29.08.2012 & order dated 30.08.2012.

7. We have heard learned counsel for the parties and gone through the judgment and record carefully.

8. PW-1 Dipti is the daughter of the accused/appellant. She testified that on 27.06.2011 between 10-11 p.m. she was with her parents in the house. Her father was abusing her mother and her. He started beating them. She left for her room. After sometime, she heard cries of her mother. A jar of kerosene oil was in the hand of her father. It was smelling of kerosene oil. Her father poured kerosene oil on her mother and put her on fire. She tried to put off fire and cried, and then her brother also came there. Her father also started beating them. Ambulance was summoned. Her mother was taken to hospital. On 28.06.2011 police had taken case property i.e. one piece of mat, burnt Chiffon Saree, ashes, one yellow jar with agmark of Rahul brand. She also deposed that her mother died on 04.07.2011 in District Hospital. She 4 denied the suggestion that she had not seen her father putting her mother on fire. She tried to put off fire by throwing water. Her mother was in position to speak in hospital. She denied the suggestion that her father used to quarrel with her mother due to her behaviour.

9. PW-2 Jeewan Chandra Joshi, is the son of the accused/appellant. He has corroborated the statement of PW-1 Dipti. According to him, his sister cried and told him that his father has poured kerosene oil on her mother. He also reached at the first floor. His mother was burnt. He tried to save his mother. His mother told that she was put on fire by his father. She shouted for help. His sister and he tried to put off fire. His father started beating them. His father also threatened his sister that he would be treated like his mother. He has also admitted in his cross examination that police reached the spot. His mother told that she has put herself on fire. However, at that time his father was standing in front of him and his mother was scared and frightened. Thereafter, his mother has given statement that his father has put her on fire.

10. PW-3 Basant Ballabh Punetha deposed that he received an information on 28.06.2011 that accused/appellant put his wife on fire. He reached the accused's house. He came to know that accused's wife was admitted in hospital. Police also reached at the spot. Police had taken case properties i.e. a piece of mat, half burnt of Chiffon Saree, ashes, kerosene oil Jar in their custody. He signed the recovery memo.

11. PW-4 Naresh Durgapal deposed that he was posted as Tehsildar on 30.06.2011. He received information through an application which was given by S.I. Kundan Singh to S.D.M. Pithoragarh that Smt. Chandrakala, who was burnt on 28.06.2011, wanted to change her statement. He proved the application. S.D.M. Pithoragarh also directed him to record the statement of Smt. Chandrkala. He went to the Hospital. The dying declaration was recorded on 30.06.2011. He asked the doctor on emergency duty about the health of Smt. Chandrakala. He issued a certificate certifying that Patient was fully conscious and well oriented. He asked her name. She told that her name is Chandrakala Joshi. He asked her about her earlier statement. She apprised that she had also given earlier statement. She could not narrate true facts earlier since she was not conscious and scared and frightened due to presence of her husband. In the second dying declaration, she stated that she was fully conscious and her husband has poured kerosene oil and put her on fire. The statement was jotted as narrated by Chandrakala. The contents of dying declaration were read over and thereafter her right thumb impression was obtained. He was confronted with earlier statement which was recorded on 28.06.2011. It was recorded at the instance of S.D.M. Pithoragarh. He further deposed that Doctor has given certificate to this effect that Smt. Chandrakala was in position to give the statement.

12. PW-5 is Dr. Tribhuwan Prasad who conducted the post mortem examination. According to external examination, she had received 90% burn injuries.

According to him, the cause of death was shock due to ante-mortem burn injuries.

13. PW-6 Dr. B.S. Yadav was on emergency duty on 28.06.2011 when Chandrakala was brought in the Hospital. She was very serious. There was smell of kerosene oil in her body. Pulse rate was 96/mt. Blood Pressure was very low. It was the case of deep burn injuries. Patient was in position to give dying declaration. He has given certificate to this effect.

14. PW-7 S.I. Vijay has deposed in his examination in chief that he received information that a woman was admitted in burnt condition in the hospital. In his cross examination, he deposed that hands and feet of the deceased were burnt. Face was turned black.

15. PW-8 S.I. Kundan Singh has arrested the accused on 28.06.2011. He prepared recovery memo. Statement of deceased was recorded on 30.06.2011. On 28.06.2011 her dying declaration was recorded wherein it has been stated that she has burnt herself.

16. Learned counsel appearing on behalf of appellant/accused has vehemently argued that there are contradictory dying declarations placed on record on dated 28.06.2011 and dated 30.06.2011. According to him, as per dying declaration dated 28.06.2011 she burnt herself. However, in the dying declaration which was recorded on 30.06.2011, she stated that she was put on fire by her husband. Both the dying declarations were recorded by PW-4 Naresh Durgapal. PW-4 Naresh 7 Durgapal reached hospital on 30.06.2011 for recording her statement. She told him that earlier she had given a statement being under the threat of her husband but now she was narrating true facts that she was put her on fire by her husband. The statements of the deceased were recorded verbatim. Statements were read over to her. Right thumb impression was obtained. She has also disclosed that initially her statement was recorded on 28.06.2011 and she was scared and she was not fully conscious. In the second dying declaration, she was fully conscious.

17. Learned counsel appearing on behalf of appellant has argued that her right thumb impression could not be obtained because this was a case of 100% burn injuries. PW-4 Naresh Durgapal has obtained certificate to this effect that deceased was in position to record the statement. The incident dated 27.06.2011 has been witnessed by the daughter of appellant PW-1 Dipti. PW-1 Dipti has categorically deposed that on 27.06.2011 between 10-11 p.m. her father was quarrelling with her mother. She reached the spot. She saw her father pouring kerosene oil on her mother and putting her on fire. She cried and her brother also reached at the spot. Her mother was admitted in the hospital. The case property was taken into possession in her presence. Her mother died on 04.07.2011. PW-2 Jeewan Chandra Joshi has also deposed that his sister told him that his father poured kerosene oil on her mother and put her on fire. They tried to put off the fire. His father started beating them. He categorically deposed that earlier statement of her mother was given in the presence of his father since 8 he was standing in front of his mother. Thereafter, his mother stated in fact that his father poured kerosene oil on her and put her on fire. The case property was taken by the police in the presence of PW-3. He signed the recovery memo. PW-6 Dr. B.S. Yadav has deposed that victim was in a position to put thumb impression. He also denied the suggestion that she was not in a position to give statement. He denied the suggestion that due to low blood pressure, she could not speak. It is a case of homicide. It is not a case of suicide as projected by the appellant/accused. Accused/appellant poured kerosene oil on his wife and put her on fire on 27.06.2011. She died on 04.07.2011. The dying declaration made by deceased on 30.06.2011 is corroborated by PW-1 Dipti, PW-2 Jeewan Chandra Joshi, PW-4 Naresh Durgapal and medical evidence. Earlier statement made by the deceased on 28.06.2011 could not be termed as voluntary in nature since her husband was standing in front of her.

18. In the case of Om Parkash Vrs. State of Punjab, reported in AIR 1993 SC 138, their lordships of the Hon'ble Supreme Court have held that the dying declaration of deceased could not be rejected merely because of serious burn injuries on her person. It has been held as follows:

"7. The learned counsel appearing for the appellants submitted that it is always open to the Court to convict the accused on the basis of a dying declaration but before any such order of conviction is passed the Court must be satisfied that the dying declaration said to have been made by the victim before death is genuine and truthful. She pointed out that the so-called dying declaration which is said to have been 9 made by Rita before ASI Amrit Lal does not appear to be a genuine and natural statement. According to her, because of the burn injuries Rita must not be in a position to make any such declaration. In this connection, she drew our attention to the post mortem examination report of Rita and the findings of Doctor who held the post mortem examination. It was urged that the Doctor had found second and first degree septic burns on the person of Rita and as such by 6.25 when she is alleged to have made the dying declaration, in normal course of the event she must not be in aposition to make any such declaration. Dr. Devinderpal Singh (PW 4) has stated on oath that it was the statement of Rita which was recorded, According to him, she remained conscious till 11.00 p.m. on March 17, 1979. Dr. Haris Chander Vaid (PW 2), who examined the injuries of Rita before her statement was recorded, also has not mentioned in his report that she was unconscious, It may be mentioned that during the examination of aforesaid Dr. Harish Chander Vaid (PW 2) no question was put to him that because of the injuries on the person of Rita whether she will be in a position to make the dying declaration. It is true that there were serious burn injuries, on the person of Rita but still she survived till March 29, 1979 i.e. for about twelve days. in this background we are not inclined to hold that because of the burn injuries, Rita was not in a position to make any statement before ASI Amrit Lal."

19. In the case of Balbir Singh Vrs. State, reported in 1994 Cri.L.J. 1079, the Division Bench of the J & K High Court has held that even if there was 100% burns, the dying declaration recorded by I.O. in presence of doctor, was voluntary and in good state of mind. It was admissible though not recorded by a 10 Magistrate and no corroboration was required. It has been held as follows:

"13. It was argued by the learned Counsel for the accused that as the dying declaration of the deceased was neither recorded by a Magistrate nor by a Doctor, but by the Investigation Officer himself without explaining the non availability of the Magistrate and the Doctor, therefore, such a dying declaration could not inspire confidence on which conviction could be recorded. Such an argument advanced and based upon the proposition of law as laid down in AIR 1986 SC 250 : (1986 Cri LJ 155) does not hold good in the circumstances of the case in question; firstly, on the ground that such a declaration was recorded by the SHO in presence of a Doctor witness soon after the occurrence had taken place, and the same was recorded instantly for the reason that the Doctor had opined to the S.H.O. that the lady (deceased) was in a critical stage and there was no hope of her survival. Secondly, the condition of the patient at that time necessitated that the Investigating Officer should have recorded her statement immediately, which he did and, although, the patient had 100% burns on her body and even was not in a position to put her thumb impressions on her statement, which were burnt, but was in a good state of mind to make such a statement without any waivering or in such a notch potch manner, which could show that she was actually in a semi conscious condition and talking incoherently, and there was a possibility that in that manner, her imagination might have played with her in giving out the name of the accused as her assailant. It is the case of the prosecution and defence as well, that both the deceased and the accused were enjoying a happy marital life and, therefore, her imagination could not play with her to blurt out the name of her husband as her assailant. The statement of the deceased, which formed the basis for initiation of criminal investigation against the accused and being her last statement before her death, has withstood all the tests of the Evidence Act, to be declared as a dying declaration, for it was made by the 11 deceased before her death to the Investigating Officer relating the circumstances under which her death had taken place at the hands of the accused. Both the prosecution witnesses Investigating Officer Talib Hussain and Dr. Bashir Ahmed have been put to a lengthy cross examination and have succintly proved that such a statement was made by the deceased of her own free will, when she was in a good state of mind and was not influenced or tainted by anybody, for there was no relation of her present in the hospital at the time her statement was recorded. In AIR 1958 SC 22 : (1958 Cri LJ

106) it has been held "that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination, but, once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assilant of the deceased, there was no question of further corroboration. If, on the other hand, the Court after examining the dying declaration in all its aspects and testing its veracity has come to the conclusion that it is not reliable by itself and that is suffers from an infirmity, then without any corroboration, it cannot form the basis of a conviction". In above context of the law, it becomes very material to make mention of the circumstances, under which the dying declaration of the deceased has been recorded.

The said declaration was recorded by its scribe P.W. Talib Hussain, soon after he received a secret information about the occurrence, he went to the house of the accused, and found that the deceased was laying in a burnt condition and he managed her shifting to Poonch hospital on a cot and recorded her statement in presence of Dr. Bashir Ahmad and her brother-in-law P.W. Parkash Singh. P.W. Parkash Singh did not support the prosecution story in literal sense of his statement recorded Under Section 161 of the Cr. P.C., but could not deny the fact that the deceased was burnt and she came out from her house in a burning 12 condition while saying that she caught fire, for her stove had burst. He did not support the dying declaration to have been recorded in his presence, but admitted his signatures on the dying declaration, which, according to him, were recorded by the police on a blank paper. However, his statement is negatived by Dr. Bashir Ahmad who in unambiguous terms after being put to a lengthy cross-examination by the defence has stated and corroborated the fact that the dying declaration of the deceased Rajinder Kour was recorded in his presence by P.W. Talib Hussain, when he (the Doctor) verified the fact that the deceased who could make a statement was in a critical state of health and there was every likelihood of her non survival and the same prompted the Investigating Officer to record her statement immediately in presence of the Doctor, fully being of the view that she could die at any time. Dr. Bashir Ahmad was a Medical Officer and was, in no way, connected with the accused or the deceased. He being an expert with independent thinking about the matter, was not expected to speak a lie. He did not bear any ill will or enmity towards the accused or any soft corner for the deceased and, therefore, one could not say that he could attest a blank document, so as to involve the accused falsely in the case. He had been working as a Surgeon in Poonch Hospital. He was not bearing any ill will or grouse against the accused which could impel him to make a false statement against the accused. His position as an expert derives full confidence to believe him as an independent witness, who could say as to whether the deceased Rajinder Kour was in a fit condition to make a statement or not. He has testified that the deceased was in a good state of mind to make a statement, which she made before the Investigating Officer Talib Hussain. According to him, although the deceased had received 100% burns on her body, but she even then was conscious and in a fit state of mind to make a statement. He has stated that since the hands of the deceased were also burnt, therefore, she was not in a position to mark her thumb impressions on the statement. He narrated the 13 whole sequence as to how her statement was reduced to writing by the Investigating Officer. According to him, she made her statement slowly and was in a great pain and also cried while her statement was being recorded. The evidence of Investigating Officer and Doctor could not be impeached in any manner by the defence to show that the said declaration of the deceased was not free from any inducement or taintedness and, as such no conviction could be recorded on such evidence by the trial Judge. As the statement of the deceased was recorded immediately after the incident, therefore, there was no possibility for the S.H.O. to wait and call for the Magistrate to record her statement in a question answer form, for there was every likelihood that she could die any time. Therefore, the way and the circumstances in which her statement has been recorded shows that such a statement of the deceased was independently sufficient to form the sole basis for the conviction of the accused even if there would have been no corroboration to it. In this regard, one gets prompted to make mention of AIR 1958 SC 22 : (1958 Cri LJ 106) wherein it has been authoritatively held that 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. Each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made, it cannot be laid down as a general proposition that the dying declaration is a weaker kind of evidence than other piece of evidence; a dying declaration stands on a same note as other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principle governing the weighing of evidence."

15. The deceased when removed from the place of occurrence to the hospital was surrounded by her in-laws and no relatives on her parents side were present when the dying declaration was recorded. This is an admitted case of the parties that some discord arose between the husband 14 and wife about the solemnization of the marriage of their brother and sister respectively, as a result of which, they were sour to each other, and the same resulted into the non participation of the family members of the bridegroom, Balbir Singh in his marriage ceremony which on the eventful day took place at Gurdwara Nangali Sahib. In the circumstances when the occurrence took place at a time when the accused was present in his house, therefore, the evidence of dying declaration recorded by the Investigating Officer as far as practicable in the words of the maker of the declaration stands on a very higher footing than the dying declaration, which would have been made orally by the declarant and the same was likely to suffer from all infirmities of human memory and character. The present declaration has proved all the tests of Evidence Act, and the same has been recorded at the earliest opportunity by its scribe, who is Senior Officer in the police department in presence of the Doctor who testified to it in letter and spirit that such a statement was by the declarant which was free from any tutoring, inspiration or inducement. If such a statement could have been beyond her control, she could have easily indicted her inlaws people in the commission of the crime, even after she came crying to them and was ablaze in fire, but they did not take any leading part in putting out the fire from her person and ensured her despatch for medical assistance, unless the Investigating Officer reached on the spot and removed her to the hospital. Their cold shoulder towards her, shows that; either they were under the control of their son (accused) badly, who never wanted that the marriage of Gurjeet Kour and Darshaan Singh to take place or they were inimical towards the deceased, which created an impediment in their mind not to take a leading part in putting out the fire from her person and ensure her despatch to the hospital. But, the deceased made a natural sequence of the circumstances, as a result of which, she was put on fire by her husband, which resulted into her death for she sustained 100% burns from such fire set on her by her husband after 15 sprinkling kerosene oil on her body and was lit with a match stick. A. person at the verge of death is not supposed to make an untrue statement unless prompted or tutored by his friends or relatives. Infect; the shadow of immediate death is the best guarantee of the truth of the statement made by dying man the cause of circumstances leading to his death, which are absolutely fresh in his mind and is un-tainted or discoloured by any other consideration except speaking of truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. Thus, if the statement of a dying person passes the test of graver scrutiny applied by the Courts, it becomes the most reliable piece of evidence which does not require any corroboration. Suffice it to say, that it is now well established by a long course of decisions. If, on a careful scrutiny of such a declaration, the Court is satisfied that the dying declaration is true and free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration, even if there is no corroboration. The above mentioned view has been taken in AIR 1988 SC 558 (sic). In the instant case, the dying declaration has withstood all the tests laid down under the Evidence Act, and the trial court has very clearly on proper scrutiny of the evidence of the scribe of the dying declaration and its attesting witness Dr. Bashir Ahmad clearly after satisfying its conscience found that the dying declaration made by Rajinder Kour was true, and free from any effort which prompted her to make such a statement which was coherent and consistent and, therefore, there was no legal impediment in founding the conviction of the accused on such a dying declaration, even if it would be found that there is no corroboration.

17. The said dying declaration has assumed the importance of correctness on account of the other fact as well that soon after the dying declaration was recorded at 11.15 a.m. on the eventful day, the same alongwith the report of its scribe (Investigating Officer in the case) was 16 dispatched to the police station, Poonch, when FIR was registered at 11.40 a.m. We have never seen a case, in which such a promptness has been shown by a police officer, who has forwarded the dying declaratin of a deceased moments after it was recorded, to the Police Station, for it forming the part of FIR on which the investigating Agency swung into action and it (declaration) ultimately formed the basis for recording the conviction of the accused, after the said declaration went through all the requisite tests of evidence Act, to which the veracity of witnesses was put at the time their statements were recorded. The statements i.e. the statement of Doctor Bashir Ahmad and the scribe of the declaration Talib Hussain withstood all the cross-examination, to which they were put by the defence and after their evidence was scrutinized on the touch stone of Evidence Act, they were found to have correctly and independently proved the dying declaration, which was made before them by the deceased soon after the occurrence took place when her mind was free from any inspiration or promptness from any corner and the statement made by her was coherent and consistent in the natural sequence of the circumstances, under which such a statement was by her.

20. Even, the close relatives of the accused, brothers, bhabies and mother have been susceptible to narrate that the deceased had sustained burns on her body in their house and they sprinkled water on her body to extinguish the fire upon her body and, ultimately, covered her with a blanket which extinguished the fire. Although, they have turned hostile, but they could not resist the fact to say that the deceased sustained injuries out of burns which, according to them, had taken place due to a stove burst. No such damaged stove was either seized by the police or produced before them by the prosecution witnesses to testify that actually the fire upon the body of the deceased had taken place due to a stove lit by the deceased, either for preparing the meals, tea or was going to boil some milk for the child. No plausible story has been put forth by the 17 defence to show as to what for the stove was lit by the lady which burst due to her mishandling and she caught fire on her body from a burning stove. The certificate of death issued by the Doctor was impeached by the appellant's counsel on the ground that no autopsy of the deceased had taken place and, therefore, the certificate issued by him that she died out of burn injuries is not certificate. The said Doctor has categorically stated that he was vividly in know of the circumstances of the case from the time the lady was admitted in the hospital till her death and found it unnecessary to cause autopsy upon her body, for the cause of death was quite apparent from her body that she died due to 100% burn injuries and no post mortem was required.

21. The post mortem examination on the dead is not absolutely necessary to prove the murder, for, even in the absence of the dead body, murder may be proved by some other cogent and credible evidence, in the case on hand, it has been admitted by the Doctor that the deceased had sustained 100% burns, which resulted into her death, because she had sustained toxemiria due to bruns, which led to her cardio respiratory failure. The duration of burns at the time of admission was six hours. It shows that the Doctor who is an expert in the matter, on his medical wisdom found that it was not necessary to conduct the post mortem upon the dead body of the deceased when conclusively he had found that she had received 100% burns, which resulted into her death. He was specific in narrating the fact that it was due to such burns that she was not even able to affix her thumb impressions on the dying declaration, for her finger tips were also burnt. In all fours, the medical evidence is satisfactory and conclusive proof that the death of the decleased has taken place due to cardio respiratory failure, which led to her death.

24. In this case, if all other circumstaces would not have been proved, but, even, then, the mere circumstance of the dying declaration proved by cogent and substantial evidence was in itself sufficient to show that the accused and the accused alone was the person who sprinkled 18 kerosene oil upon the body of the deceased on 7-10-1987 and put her ablaze, as a result of which, she died in the hospital on 13-10-1987. In all circumstances of the case, as discussed above, the accused is proved to have committed the murder of the deceased, and has, therefore, rightly been convicted by the learned trial court for an offence under Section 302 RPC which offence he has forgotten to mention in recording the order of conviction against the accused."

20. In the case of Hans Raj and others Vrs. State of Rajasthan, reported in 1995 Cri. L.J. 1004, the Division Bench of the Rajasthan High Court has held that the fact that deceased had 100% burn injuries of second degree and third degree, is not sufficient to presume that deceased was not physically and mentally fit to give statement. It has been held as follows:

"25. In view of the aforesaid facts and circumstances it can never be presumed that simply because the deceased had hundred percent burns injuries of second degree and third degree therefore, it must be presumed that deceased was not physically and mentally fit to give statement. Our aforesaid view is fortified from a decision of the Apex Court in Suresh v. State of ML P. 1981 Cri LJ 775 : AIR 1987 SC

860. In that case, deceased had got hundred percent burns of second degree. Their Lordships believed the statement of doctor, who recorded the dying declaration of the deceased. The statement of the doctor was believed in the aforesaid case by their Lordships that the deceased after receiving hundred percent burn injuries was in a fit state of health to make a declaration. The dying declaration was believed in that case although doctor had stated that when she was recording the dying declaration, the deceased had started going into coma. In that case, the dying declaration was recorded by the doctor hereself but in the instant case, the dying declaration has been recorded by the learned Judl. Magistrate PW 8 Shri Lalit Mohan, who has no interest in success or failure of the 19 prosecution. The preponderance of the cases leads towards an irresistible conclusion that the dying declarations recorded by the learned Magistrates are ordinarily taken to be impartial and above suspicion unless some compelling reasons are brought to the notice of the Court. In the present case, nothing has been brought to our notice that the dying declaration Ex. D/3 recorded by the learned Magistrate PW 8 Shri Lalit Mohan suffers from any infirmity. Thus we are of the opinion that the learned Sessions Judge has not committed any error in appreciating the dying declaration Ex. D/3 and recording a finding of guilt against the accused- appellants on the basis of Ex. D/3 and a contention contrary to it raised before us is untenable."

21. In the case of Rambai vrs. State of Chhatisgarh, reported in (2002) 8 SCC 83, their lordships of the Hon'ble Supreme Court have held that physical state of injuries on the declarant was not by themselves determinative of mental fitness of the declarant to make the statement. In this case victim had suffered 85% burn injuries. The doctor himself has given declaration that deceased was in fit mental condition to make dying declaration. It has been held as follows:

"6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi (Smt.) vs. Om Prakash and ors., (2001 (6) SCC

118), it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental 20 condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission to the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 19 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement.

Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe 21 to rely upon DW.2. In such a situation we are unable to take a contra view from the one taken by the courts below."

22. Their lordships of the Hon'ble Supreme Court in the case of P.V.Radhakrishna Vrs. State of Karnataka, reported in AIR 2003 SC 2859, have held that dying declaration can be the sole basis for conviction. In this case, the deceased sustained 80-85% burn injuries. It was held that the absence of certification as to the state of mind of declarant, was not fatal when police official recorded statement of deceased in presence of the doctor. Their lordships have further held that the percentage of burns suffered by the deceased is not alone the determinative factor. It has been held as follows:

"15. There is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility.

17. The residuary question whether the percentage of burns suffered is determinative factor to affect the credibility of the dying declaration and the improbability of its recording. There is no hard and fast rule of universal application in this regard. Much would depend upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. As noted in Rambai's case (supra) physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement."

23. The Division Bench of the Karnataka High Court in the case of Sri Kumar alias B.A. Jayakumar 22 Vrs. State of Karnataka, reported in 2003 Cri. L.J. 252, has held that though condition of deceased was precarious because of 100% burns, she was mentally fit and in clear state of mind to make correct and cogent statement. In the circumstances, dying declaration so recorded was acceptable. It has been held as follows:

"3. The appellant's learned Advocate started by pointing out to us that this was a case in which Laxmi was found with her clothes blazing and by the time the fire was extinguished that she had sustained virtually 100% burns. The learned Counsel submitted that there are indications from the evidence of P.W. 10, from the evidence of the doctor, from the evidence of the sister Rathna and her mother Muniyamma that even her face had been burnt and what is emphasised is the fact with this degree and level of burns that even when Laxmi was brought to the hospital her condition was precarious. There are entries to this effect in the case papers and the learned Counsel submits that it would have been totally and completely impossible for Laxmi to have either spoken to the doctor or given any case history and that as has now been routine that since she was taken to the hospital by the Head Constable that he must have told the doctor that she was burnt by the husband and that this is what has been taken down. Furthermore, from the fact that Laxmi did not even survive in the hospital for a few hours. What is further pointed out to us is that she was virtually hanging between life and death during that period of time and that with every hour that passed she was virtually sinking. The dying declaration is supposed to have been recorded sometime around 9 PM and the learned Counsel submits that this was hardly 3 to 4 hours before Laxmi died; that the doctors have admitted that she was given sedatives and tranquilizers and that consequently, it is totally and completely impossible for the Court to accept the prosecution version that she was in a fit condition mentally and physically to make a valid dying declaration. Our attention was 23 drawn to the fact that even though the doctor has endorsed the dying declaration to the effect that it was recorded before him that the dying declaration does not contain the most important endorsement namely the certificate from the doctor that the patient was in a fit condition to understand questions and give rational and cogent answers. It is true that a perusal of this dying declaration does indicate to us that it does not contain the certificate from the doctor in this form. The Supreme Court has further clarified the legal position in more than one judgment laying down that in a given case if there is sufficient evidence before the Court to indicate that the dying declaration is a valid and genuine document and that it reflects the true, correct and complete statement made by the deceased that the mere omission to obtain the fitness certificate from the doctor is not a fatal infirmity. In the present case however, there are two aspects which the learned Addl. S.P.P. has very vehemently laid emphasis on. Firstly, he points out that the doctor who is P.W. 1 has in no uncertain terms stated that Head Constable Srinivas sought his permission to record the dying declaration and that he accorded the permission because Laxmi was in a fit condition to make a statement. He has been seriously grilled by the defence and he has withstood the cross-examination in the course of which he has in terms stated that he was present right through the recording of the statement and that her mental condition was perfectly stable and furthermore that she was in a fit condition to understood the questions put to her and to give the answers and that she in fact did so. We then have the evidence of Head Constable Srinivas who is the scribe of the dying declaration and he has given evidence in identical terms. He points out that he had put the questions to Laxmi, that she answered the questions without any difficulty and that the dying declaration recorded by him represents Laxmi's statement. What we need to point out in this case is that the fitness certificate which was perhaps technically lacking on the original dying declaration has been more than completely established and 24 strangely enough, the majority of these answers have been elicited in the course of cross- examination. We have no hesitation whatsoever in holding that even though Laxmi's condition was precarious because of the 100% burns that she was still in a mentally fit and clear state of mind around 10 to 10.15 PM on that night to make a correct and cogent statement. Under these circumstances, in our considered view, Ex.P-2 which has been seriously attacked by the defence will have to be accepted.

4. It was pointed out to us that Ex. P-2 is a long statement virtually covering two full pages and that it is too much to believe that Laxmi who was very close to her end at that point of time could have been in a position to recount all this history when questions were put to her. It is true that the doctor was confronted with the position that she had been administered pain killers and sedatives but the doctor has still maintained that despite these medications that the patient was still in a fit condition. Speaking for ourselves all that we need to observe is that the doctor whose credibility we have no reason to doubt has given evidence and his evidence has withstood crossexamination and secondly that the Courts have come across numerous instances where as a result of the treatment meted out in the hospital particularly after pain killers and sedatives are administered that for some period of time the condition of the patient stabilises even if there is a sudden collapse thereafter. It appears from the case papers that Laxmi did survive till 5AM the next morning but the number of hours or the time factor is not the parameter in so tar as the Court is always guided by the evidence of the medical persons namely the doctor."

24. In the case of State of Karnataka vrs. Shariff, reported in AIR 2003 SC 1074, their lordships of the Hon'ble Supreme Court have held that dying declaration recorded by the police personnel cannot be discarded on that ground alone. There is no requirement of law that dying declaration must necessarily be made to 25 a Magistrate. Their lordships have further held that dying declaration when not recorded in question-answer form, cannot be discarded on that ground alone. The statement recorded in narrative form is more natural and gives version of incident, as it has been perceived by victim. In this case also, the doctor has recorded in the Accident Register of hospital that patient was conscious, her orientation was good and that she answered well to questions. The dying declaration cannot be discarded merely on the basis of her injury report and post mortem examination, holding that having regard to nature of injuries sustained by deceased, she could not have been in a position to make statement. It has been held as follows:

"8. The most important evidence in this case is the series of statements given by deceased Muneera Begum to different persons on several occasions. PW 2 Syed Akbar has stated that his nephew PW 3 Rasheed came to his house at about 6.00 a.m. on July 24, 1986 and informed him that his father had burnt his mother. He then immediately rushed to the house of his sister and inquired what had happened and then she said that her husband had tied her hands and legs, covered her mouth and after pouring kerosene had set her on fire. PW 6 Abdul Razak resides in the premises of the mosque in the same village. He has stated that when he was returning from the mosque at 6.00 a.m. after finishing the prayers, he saw a crowd near the house of the accused. He went there and found Muneera Begum in burnt condition and when he inquired as to how it had happened, she told that her husband had tied her hands and legs, poured kerosene and brunt her. She could not raise any alarm as the accused covered her mouth with a cloth. PW 7 Baknu is another brother of the deceased and was working in Hosur stone quarry. According to his statement he received information about the incident at about 8 O'clock and thereafter he 26 reached Victoria Hospital the same night. The deceased informed him that her husband had tied her hands and legs, poured kerosene and had set her on fire. No doubt PW 2 Syed Akbar and PW 7 Baknu are real brothers of the deceased, but PW 6 Abdul Razak is not related to her in any manner. He is the Imam in the mosque. There is no reason why he would give a false statement in order to implicate the accused. PWs 2 and 7 would not fabricate a story and falsely implicate the accused Shariff as he was also related to them as their brother- in-law. In our opinion the testimony of these three witnesses is quite reliable and it shows that the deceased Muneera Begum made a statement that her husband had tied her hands and legs and after pouring kerosene had set her on fire in the morning of July 24, 1986.

9. As mentioned earlier the deceased Muneera Begum was taken to Victoria Hospital, Bangalore for treatment. PW 12 Dr. K.M. Nagabhushan was posted as Assistant Surgeon in the aforesaid hospital and was working as Casualty Medical Officer on July 24, 1986. He has stated that Muneera Begum was brought to the hospital at about 9.30 a.m. with burn injuries by her brother Syed Akbar. She gave her own statement with regard to the incident and stated that she sustained burn injuries when her husband poured kerosene on her body and set her on fire in his house at about 4.00 a.m. He has further stated that on examination he found her to be conscious and was answering the questions properly and her orientation was good. After examining her he made the necessary entries in the Accident Register and the relevant extract of the same have been proved by the witness as Exh. P12 and the same reads as under:-

"Patient says that she sustained burn injuries when her husband Shariff thrown kerosene oil over her body in her house and put fire to it on 24.7.86 at 4.00 a.m. There was a quarrel between her and her husband for the last two days. On examination patient is conscious. Pulse 86/minute.

CVS/RS NAD Answers well to the question and ` orientation was good.

Brought by Akbar (brother) Kerosene smell over the body of the patient."

15. In our opinion the view taken by the learned Sessions Judge that it would be unsafe to rely upon the testimony of PW 3 regarding the actual factum of incident is not correct. A boy aged 8/9 years would be near his mother and would be sleeping in the same house where she was sleeping. There was no occasion for him to go to the house of Jaina Bi and to sleep with her. If PW 3 was not present in the house and was in the house of her grand-mother in the night in question, he could not have conveyed the information about the incident to PW 1 and PW 2 nor they would have come to know about the incident forthwith. If PW 3 was present in the house he was bound to witness the incident, namely picking up quarrel by the accused with his wife and setting her on fire. There was absolutely no reason why PW 3 would give a false statement against his own father that he had tied the hands and legs of his mother and had burnt her. We are of the opinion that the testimony of PW3 is fairly reliable on the factum of the incident and the same cannot be discarded only on account of a stray sentence in his cross- examination where he has stated that when his mother caught fire he was in his grand-mother's house. The High Court did not examine the testimony of this witness carefully and we find ourselves unable to agree with the view taken by it.

16. The other important piece of evidence against the accused is that of dying declarations and the most important one is that which was made by her to PW 12 Dr. KM Nagbhushan, Assistant Surgeon in the Victoria Hospital, Bangalore. He was the first doctor to examine her when she reached there at 9.30 a.m. The witness has clearly stated that the deceased gave her own statement with regard to the history and stated that she sustained burn injuries when her husband poured kerosene and set her on fire on the same day at 4.00 a.m. He recorded all these facts in the Accident Register and relevant extract of the 28 same has been brought on record and has been proved by him as Ex. P.12. There is absolutely no reason to discard the testimony of PW 12, who is a responsible government servant. The other two dying declarations were recorded by PW 11 BK Krishnappa ASI Victoria Police Station on July 24, 1986 and by PW 14 Kumar Swamy, PSI Anekal Police Station on July 26, 1986. These are fairly long dying declarations where she gave the background of the incident and also stated the fact that the accused picked up a quarrel in the morning of July 24, 1986 and thereafter after pouring kerosene set her on fire. These two dying declarations were recorded in the presence of PW 5 Dr. Rangarajan who was Assistant Surgeon in the Victoria Hospital at the relevant time. He made an endorsement that the dying declaration was recorded in his presence and thereafter he put his signature on the same. He has made a categorical statement that at the time when the statement of the deceased was being recorded on both the occasions, she was conscious and was in a fit condition to make a statement. In our opinion the aforesaid three dying declarations are wholly trustworthy and there is absolutely no reason at all to discard the same. Though PW 2 Syed Akbar and PW 6 Abdul Razak, who reached the spot in the village immediately after the occurrence, have also stated in their statements that the deceased told them that it was the accused who had set fire to her and their testimony in our opinion is trustworthy, but even if we do not take into consideration the aforesaid oral dying declaration of the deceased, the three dying declarations referred to above, are quite sufficient to fasten the liability upon the accused.

21. It is true that PW 11 and PW 14 were Police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana AIR 1997 SC 234 on receiving message from the hospital that a person with gun shot injuries 29 had been admitted a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja & Anr. v. State of Madhya Pradesh 1976 (2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way of First Information Report, which was recorded in writing, was held to be admissible in evidence.

24. We are a little surprised that the High Court took the view that having regard to the nature of injuries sustained by the deceased she could not have been in a position to make a statement. PW 12 Dr. KM Nagabhushan clearly recorded in the Accident Register that the patient was conscious, her orientation was good and that she answered well to the questions. He also noted that her pulse was 86/minute, CVS/RS was NAD. PW 5 Dr. Rangarajan before whom the statements of the victim were recorded by PW 11 and PW 14 on 24th and 26th July, 1986 respectively deposed that she was able to speak. He clearly stated that it is not true that the victim was not in a condition to make statement or that she was unconscious. In view of this clear statement of the Doctor that the victim was in a position to make a statement, the High Court, in our opinion erred in discarding the dying declarations merely on the basis of her injury report and post-mortem examination report. PW 4 Dr. KH Manjunath who had performed the post- mortem examination, had merely stated that he was not in a position to say if the victim was in a position to talk after sustaining the injuries and till she died. The last ground given by the High Court is regarding the language spoken by the deceased. PW 5 Dr. Rangarajan has stated in para 2 and 3 of his statement that the victim was answering in Kannada language in which language her statement was recorded by PW 11 and PW 14. We are therefore of the opinion that the view taken by the High Court is wholly 30 perverse and also contrary to settled principles of law and therefore cannot be sustained.

25. In the result the appeal succeeds and is hereby allowed and the impugned judgment and order of the High Court is set aside and that of the learned Sessions Judge is restored. The accusedrespondent shall surrender and undergo the sentence imposed by the learned Sessions Judge. The Chief Judicial Magistrate concerned shall take immediate steps to take the accused-respondent in custody. Shri Ajay Kumar Jain, learned Advocate, who appeared Amicus Curiae has rendered valuable assistance in deciding this case and we are beholden to him."

25. Their lordships of the Hon'ble Supreme Court in the case of Vidhya Devi and another vrs. State of Haryana, reported in (2004) 9 SCC 476, have held that when statement is made to a police officer and the doctor is present in person and the deceased is in a fit state of mind to make the statement, the statement was signed by the deceased, the challenge to dying declaration was not sustainable. It has been held as follows:

"5. We have carefully considered the submissions of the learned counsel appearing on either side. In our view, the acquittal of the other accused, except the appellants, on the ground of absence of any direct and substantial evidence against them cannot be relied upon as basis for a claim to project the case for acquittal of the appellants against whom and as to the role played by them there were ample materials as noticed, analysed and ultimately found the appellants guilty. The strained relationship between parties and also the harassment of the deceased for not bringing further dowry and not complying with the demands made on the deceased stood sufficiently substantiated on the basis of the indisputable material in the shape of complaint before the Police therefor as well as the compromise which came to be signed also by Puran Mal, Bimla (the in- laws of 31 the deceased) Krishna, Vidhya Devi as well as by Om Prakash, Jagdamba, Raghbir Singh, Pawan Kumar, Bhupinder Kumar and attested by the Police Officer also. So far as the challenge made to the dying declaration recorded, though no doubt by the Police Officer concerned, the evidence of PW- 3, Dr. Krishan Kumar, who not only opined that the deceased was in a fit state of mind to make the statement but present when the statement was recorded and that the said statement was signed by the deceased Satyawati in token of its correctness adds credibility to the same and consequently involvement of the accused-appellants and the respective role played by them in having the deceased killed, remains firmly established by concrete and sufficient material and the findings in this regard concurrently arrived at by both the courts below are not shown to suffer from any infirmity whatsoever to call for our interference."

26. Their lordships of the Hon'ble Supreme Court in the case of Nallam Veera Stayanandam and ors. vrs. Public Prosecutor, High court of A.P., reported in (2004) 10 SCC 769, have held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. The Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. It has been held as follows:

"6. It is for the above purpose, learned counsel for the appellants has strongly relied on the dying declaration Ex. P-28 which according to him, is free from all blemish and is not surrounded by any suspicious circumstances. We are of the opinion that if the contents of Ex. P-28 can be accepted as being true then all other evidence led by the prosecution would not help the prosecution to establish a case under section 304B IPC because of the fact that even a 32 married woman harassed by demand for dowry may meet with an accident and suffer a death which is unrelated to such harassment. Therefore, it is for the defence in this case to satisfy the court that irrespective of the prosecution case in regard to the dowry demand and harassment, the death of the deceased has not occurred because of that and the same resulted from a cause totally alien to such dowry demand or harassment. It is for this purpose the appellants strongly place reliance on the contents of Ex. P-28, therefore, we will have to now scrutinise the circumstances in which Ex. P-28 came into existence and the truthfulness of the contents of the said document. It is the prosecution case itself that on the fateful day at about 3'O clock, the deceased suffered severe burn injuries and she was brought to the Government hospital at Kothapeta. As per the evidence of PW-10 the doctor when she was admitted to the hospital, he sent an intimation to the Police as per Ex. P- 21 and also made an endorsement in Ex. P-22, the accident register. In both these documents, he had noted that the deceased suffered accidental burn injuries due to stove burst. It is not the case of the prosecution that this entry was made by the doctor at the instance of any one of the appellants. At least no suggestion in this regard has been put to the doctor when he was in the witness box. As a matter of fact, there is considerable doubt whether any of the appellants was present at the time when the deceased was brought to the hospital and was first seen by the doctor PW-10. On the contrary, according to the doctor, a large number of relatives other than the appellants were present at that point of time when the deceased was brought to the hospital, therefore, it is reasonable to infer that the information recorded by the doctor in Ex. P-21 and 22 is an information given to the doctor either by the victim herself or by one of the relatives present there, who definitely were not the appellants. From the evidence of this doctor, we notice that anticipating the possible death he sent a message to the Munsif Magistrate to record a dying declaration and the said Magistrate PW-

13 came to the hospital immediately and after making sure that all the relatives and others were sent out of the ward and after putting appropriate questions to know the capacity of the victim to make a statement and after obtaining necessary medical advice in this regard, he recorded the dying declarations which is in question and answer format. It is in this statement the deceased unequivocally stated that she suffered the injuries accidentally while preparing tea. There has been no suggestion whatsoever put to this witness when he was in the box to elicit anything which would indicate that this statement of the deceased was either made under influence from any source or was the statement of a person who was not in a proper mental condition to make the statement. From the questions put by the Munsif Magistrate, and from the answers given by the victim to the said questions as recorded by the Munsif Magistrate we are satisfied that there is no reason for us to come to any conclusion other than that this statement is made voluntarily and must be reflecting the true state of facts. The trial court while considering this dying declaration seems to have been carried away by doubting the correctness and genuineness of this document because of other evidence led by the prosecution thus, in our opinion, erroneously rejected this dying declaration which is clear from the following finding of the trial court in regard to Ex. P-28 :

"Her statement made to the Magistrate which is at Ex.P-28 has been demonstrated to be an incorrect statement of fact and it appears that in the presence of the 3rd appellant, she made the statement that from the burning stove her sari caught fire while she was preparing tea."

We find absolutely no basis for the two reasons given by the trial court for coming to the conclusion that the deceased's statement under Ex. P-28 is an incorrect statement. The court came to the conclusion that this statement must have been made in the presence of the 3rd 34 appellant, a fact quite contrary to the evidence of PWs.10 and 13. On the contrary, the Munsif Magistrate specifically states that he asked everyone present and who were unconnected with the recording of the statement, to leave the room This has not been challenged in the cross- examination. Therefore, in our opinion, this part of the foundation on which the trial court rejected Ex. P-24 is non- existent. It is also seen from the above extracted part of the judgment of the trial court that it held that it "has been demonstrated to be an incorrect statement of fact". For this also, we find no basis. If the trial court was making the second dying declaration as the basis to reject the first dying declaration as incorrect then also in our opinion, the trial court has erred because in the case of multiple dying declarations each dying declaration will have to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs."

27. Their lordships of the Hon'ble Supreme Court in the case of Muthu Kutty and another vrs. State by Inspector of Police, T.N., reported in (2005) 9 SCC 113, have held that the Court should be satisfied that deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or product of imagination and dying declaration can be the sole basis of conviction. It has been held as follows:

"13. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases 35 in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which" could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made 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 silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of "Justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock, [1789] 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain :

"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the 36 fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?"

(See King John, Act 5, Sect. 4) The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth."

14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye- witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, 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, 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 37 declaration, which could be summed up as under as indicated in Smt. Panjben v. State of Gujarat, AIR(1992) SC 1817:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, [1976] 2 SCR 764).

(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 Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR (1985) SC 416 and Ramavati Devi v. State of Bihar, AIR (1983) SC 164).

(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 and Anr. v. The Public Prosecutor, AIR (1976) SC 1994].

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. v. State of Madhya Pradesh, [1974] 4 SCC

264).

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P., AIR (1982) SC 1021].

(vi) A dying declaration with suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors v. State of U.P., [1981] 2 SCC654).

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617].

(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 Oza 38 and Ors v. State of Bihar, AIR (1979) SC 1505].

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR (1988) SC 912].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Medan Mohan and Ors., AIR (1989) SC 1519].

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839]."

28. The Division Bench of the Karnataka High Court in the case of State of Karnataka vrs. Smt. Akkamahadevi, reported in 2005 Cri. L.J. 703, has held that sedative drugs administered to deceased take some time to have effect of sedation, therefore, it cannot be said that deceased was under sedation when her dying declaration was taken, particularly, when doctor and investigating officer stated that deceased was conscious when she made the statement. It has been held as follows:

"20. In the present case, as observed, the accused has absolutely no explanation with regard to the facts that have been proved by the prosecution. Therefore, not only the dying declaration which had been made before the 39 Police Officer as per Ex.P.11 is reliable but the dying declaration made by the deceased before P.W. 1, and the circumstances, which have been proved by the prosecution showing that the accused had come out of the house followed by the deceased, who was on fire and the entry (Ex.P.9) in the medico legal register wherein it has been clearly recorded that the injured named the accused as the person who set on fire, all would complete the chain of events to show that it is only the accused, who could have set Saraswathi on fire."

29. Their lordships of the Hon'ble Supreme Court in the case of Krishan vrs. State of Haryana, reported in (2013) 3 SCC 280, have held that when the doctor stated that both the hands were burnt including fingers and thumbs, as per post mortem report there were superficial to deep burns all over body, except lower parts and no question was put to doctor as to whether extent of burns was such that deceased's thumb impression could not be taken, it was held feasible to take thumb impression of the deceased. It has been held as follows:

"17. A bare reading of the above paragraphs shows that the Court opined that 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. The Bench further clarified that where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled 40 procedures and practices, then, it may be necessary for the court to look for corroboration of the same.

20. In this regard, reference can also be made to a recent judgment of this Court in the case ofBhajju @ Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327.

24. The learned counsel appearing for the appellant heavily relied upon the answer of the doctor in his cross-examination, where he stated that "it is correct that both hands of Rani were burnt, including fingers and thumb." The deceased is stated to have suffered 75% burns. This answer of the witness in face of his statement in examination-in-chief does not bring any advantage, inasmuch as no specific question was put to the doctor that the extent of burns was such that her thumb impression could not have been taken. No such question was put to this witness. Not even a suggestion was made to the doctor and the Investigating Officer to the effect that it was not possible to take the thumb impression of the deceased in the state of health that she was in. Dr. R.K. Wadhwa, PW14, who performed the autopsy on the dead body of Rani clearly noticed that there were superficial to deep burns all over the body except her lower parts of both thighs, both legs and feet. In other words, it is not only possible but quite feasible that her thumb impression could rightly be taken by the SDJM."

30. Their lordships of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vrs. Dal Singh and others, reported in (2013) 14 SCC 159, have held that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. Their lordships have further held that question of thumb impression depends upon facts, as regards whether skin of thumb that was placed upon dying declaration was also burnt. It is a question of fact whether the skin of the thumb had in fact been 41 completely burnt, and if not, whether ridges and curves had remained intact. It has been held as follows:

"27. In the dying declaration recorded by P.K. Chaturvedi (PW.12), it is stated that the mother- in-law of Kusumbai had set her on fire by throwing kerosene oil on her, and that her father-in-law had also set her on fire. Her husband Chandrabhan, had closed the door. While she screamed in pain, her uncle Hakam Singh had brought her out by opening the door. While lodging the FIR, it was recorded by R.S. Parmar (PW.14), that her father-in-law Dal Singh had said, 'burn this bitch'. Her father-in- law had then lifted the kuppi of kerosene oil, and had poured the same on her, after which he had told his wife to set her ablaze. Thereafter, her mother-in-law had lit a matchstick and set her on fire. She had started to scream because of pain. Her husband Hallu had then closed the door of the room. After hearing the hue and cry raised by her, a person from the village had informed her family who lived closeby. Her father Nirpat Singh, uncle Hakam Singh and several other persons had come there, and her uncle Hakam Singh, had opened the door and had brought her out. There is thus, some discrepancy in both the dying declarations.

28. Dr. S.K. Jain (PW.8) deposed on 7.4.2003, stating that he had been the medical officer in the district hospital Damoh on 29.11.2002. Kusumbai had been brought for medical examination from the police station in an injured state and he had examined her. According to him, she had on her person, 100% superficial burn injuries, and the smell of kerosene oil had also been present in the body of the victim. She was unconscious at the time, and her pulse and blood pressure had been difficult to detect. She was able to breathe, but with great difficulty. She had died after some time. In his cross-examination, he has deposed that at the time of examination at the initial stage, Kusumbai had been unconscious, and had been unable to speak. He has further opined that if a person suffers 100% burn injuries, then he may not be able to speak.

29. Burn injuries are normally classified into three degrees. The first is characterised by the reddening and blistering of the skin alone; the second is characterised by the charring and destruction of the full thickness of the skin; and the third is characterized by the charring of tissues beneath skin, e.g. of the fat, muscles and bone. If a burn is of a distinctive shape, a corresponding hot object may be identified as having been applied to the skin, and thus the abrasions will have distinctive patterns.

30. There may also be in a given case, a situation where a part of the body may bear upon it severe burns, but a small part of the body may have none. When burns occur on the scalp, they may cause greater difficulties. They can usually be distinguished from wounds inflicted before the body was burnt by their appearance, their position in areas highly susceptible to burning, and on fleshy areas by the findings recorded after internal examination. Shock suffered due to extensive burns is the usual cause of death, and delayed death may be a result of inflammation of the respiratory tract, caused by the inhalation of smoke. Severe damage to the extent of blistering of the tongue and the upper respiratory tract, can follow due to the inhalation of smoke. (See: Modi's Medical Jurisprudence and Toxicology by Lexis Nexis Butterworths Chapter 20).

31. FIR (Ex. P-17) - It was recorded by Kusum Bai - deceased, on 29.11.2002 at about 2.00 p.m. According to the FIR, the said incident had occurred at 10.00 a.m. and the distance between the police station and place of occurrence is about 10 Kms. The deceased in the FIR, has named all the three accused. The deceased has mentioned that her mother-in-law had not been giving her adequate meals, and continuously harassed her for not working. On that fateful day, her mother-in-law had slapped her 2-3 times and she had started to cry loudly. Thereafter, her father-in-law had asked the other accused, if this bitch should be burnt alive? He had then brought a can of kerosene oil and poured its contents over her. Her mother-in-law lit a matchstick and had thrown 43 its contents on her, setting her ablaze. She had then begun to scream owing to the pain. Her husband had locked the door. Her parents-in- law and husband had set her on fire with the intention of causing her death. She had burns all over her body.There is a thumb impression on the FIR which appears to be normal. It has ridges and curves.

32. Ex.P-14 is the dying declaration recorded by the Executive Magistrate, Jabera. The original reveals that the executive Magistrate had asked the SHO to call a doctor at 2.25 p.m., but there is an endorsement stating that there was no government doctor available at Nohta. What the deceased has said, is that her mother in law had set her on fire. Her father-in-law and husband had also been party to the same. She has also stated that they had never provided her adequate food. She, in anger, had told them not to harass her everyday and to simply kill her (set me ablaze). Her mother-in-law had poured kerosene oil on her and had then set her ablaze, (humari saas ne mitti ka tal dalkar jalaya). Her father-in-law set her on fire (Sasur ne aag lagayi). Her husband bolted the door.There is thumb impression of the deceased on the FIR also. We have carefully seen the thumb impression of the deceased on the said dying declaration. The same has ridges and curves.

33. It is evident from the record that defence neither put any question in cross-examination to either the Executive Magistrate, or to the doctor who had examined the deceased in the hospital, or to Dr. S.K. Jain (PW.8), who had conducted the autopsy on the body of the deceased with respect to whether the skin of the thumb was also burnt, or whether the same was intact. Nor was any such question put to R.S. Parmar (PW.14), who had recorded the FIR, which can also be treated as a dying declaration.

34. The respondents in their statements under Section 313 Cr.P.C. denied their presence at home at the time of incident, taking the plea that they had been working in their agricultural field. They had rushed to the place of occurrence only after learning about the 44 incident. They further took the defence that Kusumbai had committed suicide by burning herself, and that it was on being tutored by her parents that she had given a dying declaration against them. The trial court however, rejected the suggestion made by Mannu Singh (PW.5), to the effect that Kusumbai had caught fire while preparing food on the ground. Kerosene oil had been found on her body and in her burnt clothes and hair. Evidence has been led by the prosecution witnesses to the extent that she had died within a short span of 10 months of her marriage, and that she had been illtreated by her parents-in-law as she was not being given proper food etc. She had been harassed and tortured by her in-laws, as she was not good looking, could not cook well, and had been unable to do household work properly. She was considered to have a temperamental nature, and thus had also been slapped. This evidence has not been challenged by the defence.

35. The contradictions raised by the defence in the two dying declarations, as regards who had put the kerosene oil on her, and who had lit the fire have been carefully examined and explained by the trial court. Furthermore, in such a state of mind, one cannot expect that a person in such a physical condition, would be able to give the exact version of the incident. She had been suffering from great mental and physical agony. Upon proper appreciation of the evidence on record, the trial court had found the dying declarations to be entirely believable, and worth placing reliance upon, but the High Court on a rather flimsy ground, without appreciating material facts, has taken a contrary view. In our opinion, as the defence did not put any question either to the executive magistrate, or to the I.O., or to the doctors who had examined her or conducted the postmortem, with respect to whether any part of the thumb had skin on it or not, as in both the dying declarations, ridges and curves had been clearly found to exist, we do not see any reason to dis-believe the version of events provided by the executive magistrate and the I.O., who had recorded the dying declarations. No suggestion was made to either of them in this regard, nor was any explanation 45 furnished with respect to why these two independent persons who had recorded the dying declarations, would have deposed against the respondents accused. In the event that both of them had found the deceased to be in a fit physical and mental condition to make a statement, there exists no reason to disbelieve the same. In light of such a fact-situation, the concept of placing of a thumb impression, loses its significance altogether.

31. Their lordships of the Hon'ble Supreme Court in the case of Prempal vrs. State of Haryana, reported in AIR 2014 SC 3785, have held that in case where the deceased had suffered 95% burn injuries, yet her statement before Tehsildar was clear and cogent, was relied upon. It has been held as follows:

"17. The defence version is that Anita committed suicide as she was frustrated because she could not conceive a child. The appellantPrempal in his statement under Section 313 Cr.P.C. stated that on 24.10.2001 he had gone to Narnaund for purchase of domestic articles and returned home at 5.00 p.m. and only then he came to know that his sister-in-law Anita had set herself on fire and his father Jai Singh had taken her to Shanti Hospital for treatment and that deceased Anita used to remain depressed as she did not conceive the child and therefore she committed suicide. The appellant placed reliance upon the statement of his father Jai Singh recorded under Section 313Cr.P.C. and also the burn injuries sustained by Jai Singh. The fact that Jai Singh sustained burn injuries, does not lead to the conclusion that it was a suicide.

18. In burn injury cases, two possible hypothesis arise in the judicial mind - was it suicide or was it homicide. In cases where the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide has to be justifiably eliminated. In the present case, had it been a suicide, Anita who was at the point of death had no reason to 46 falsely implicate her brother-in-law Prempal. We do not find any substance in the defence version of suicide theory.

19. A perusal of various judgments of this Court, some of which we have referred to above, shows that if a dying declaration is found to be reliable, then there is no need for corroboration by any witness and conviction can be sustained on that basis alone.

20. In the present case evidence of Tehsildar, the Doctor and other witnesses is cogent and consistent that the deceased was conscious and in a fit state of mind to give dying declaration and courts rightly based the conviction upon the same. When the trial court as well as the High Court have appreciated the entire evidence in its right perspective, we see no reason to interfere and the appeal fails. In the result, the appeal is dismissed."

32. In view of the observation and discussion made hereinabove, there is no merit in the appeal and the same is hereby dismissed. Accused/appellant is in jail. He shall serve out the sentence, so awarded.

33. Let a copy of this judgment along with lower court record be transmitted to the court below for compliance of the judgment forthwith.





      (Sharad Kumar Sharma, J.)      (Rajiv Sharma, J.)
JKJ                        14.07.2017

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Uttarakhand High Court

Narayan Dutt Joshi vs State Of Uttarakhand on 14 July, 2017

Bench: Rajiv Sharma, Sharad Kumar Sharma