Govind Singh vs State Of M.P. on 28 April, 2022

[Cites 38, Cited by 31]

Madhya Pradesh High Court

Govind Singh vs State Of M.P. on 28 April, 2022

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 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. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required."

20.2. In Dalip Singh, the alleged dying declaration turned out to be doubtful for it contained such facts which could not have been in the knowledge of the deceased and hence, this Court found it unsafe to rely on the same while observing as under: (SCC p. 335, para 9) "9. ... The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declaration."

20.3. In Thurukanni Pompiah, this Court held that while a truthful and reliable dying declaration may form the sole basis of conviction, even without corroboration but the Court must be satisfied about its truthfulness and reliability; and if the Court finds that the declaration is not wholly 19 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) 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 it unsafe to convict the accused on the basis of the declaration alone without further corroboration. This Court observed, inter alia, as under: (AIR p. 941, para 9) "9. Under clause (1) of Section 32 of the Evidence Act, 1872, a statement made by a person who is dead, as to the cause of 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 into question, and such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration."

20.4. In Uka Ram, this Court again emphasised on the requirement that 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. ... Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence."

20.4.1. In the said case of Uka 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 circumstances, 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 20 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) admissibility and reliability could be usefully summed up as under:

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it 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 it 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 mind of the 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 in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor 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 not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage 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.

* * * * 25.2. Another emphasis laid on behalf of the appellants is on the fact that the victim Sher Singh had suffered 100% burns and he was already in critical condition and further to that, his condition was regularly deteriorating. It is, therefore, contended that in such a critical and deteriorating condition, he could not have made proper, coherent and intelligible statement. The submissions do not make out a case for interference. As laid down in Vijay Pal case and reiterated in Bhagwan case, the extent of burn injuries --

going beyond 92% and even to 100% -- would not, by itself, lead to a conclusion that victim of such burn injuries may not be in a position to make the statement. Irrespective of the extent and gravity of burn injuries, when the doctor 21 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) had certified him to be in fit state of mind to make the statement; and the person recording the statement was also satisfied about his fitness for making such statement; and when there does not appear any inherent or apparent defect, in our view, the dying declaration cannot be discarded. 25.3. Contra to what has been argued on behalf of the appellants, we are of the view that the juristic theory regarding acceptability of statement made by a person who is at the point of death has its fundamentals in the recognition that at the terminal point of life, every motive to falsehood is removed or silenced. To a fire victim like that of present case, the gravity of injuries is an obvious indicator towards the diminishing hope of life in the victim; and on the accepted principles, acceleration of diminishing of hope of life could only obliterate the likelihood of falsehood or improper motive. Of course, it may not lead to the principle that gravity of injury would itself lead to trustworthiness of the dying declaration. As noticed, there could still be some inherent defect for which a statement, even if recorded as dying declaration, cannot be relied upon without corroboration. Suffice would be to observe to present purpose that merely for 100% burn injuries, it cannot be said that the victim was incapable to make a statement which could be acted upon as dying declaration. 25.4. The suggestions have also been made that the victim was in 100% burnt condition and therefore, the alleged statements Exts. PW-8/A and PW-16/B are manipulated and manufactured. We find nothing of substance in such suggestions for there had not been shown any reason for which PW 8 Dr Sushma and PW 16 SI Rajesh Kumar would manufacture any such document. Interestingly, certain suggestions were made to PW 19 Inspector Om Prakash in his cross-examination about his previous exchange of hot words or altercation with the accused persons. However, there was no such suggestion to PW 16 or to PW 8. For the same reason, the doubts sought to be suggested about availability of thumb impression of the victim on the statement Ext. PW-16/B deserve to be rejected. In Dal Singh, this Court has pointed out that in the case of burns, the skin of a small part of the body like thumb may remain intact; and it is essentially a question of fact as to whether skin of thumb had also been burnt completely. In this regard, it is also noticeable that even when the victim was carrying 100% deep burns, as per the post-mortem report, peeling off of skin was noticed on dorsum of hands and therefore, taking of thumb impression on Ext. PW-16/B is not ruled out. The concurrent findings of the trial court and 22 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) the High Court in accepting the thumb impression on Ext. PW-16/B do not appear calling for any interference. It gets, perforce, reiterated that there appears no reason for PW 16 to go to the extent of manufacturing the document with a false thumb impression.

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.

40. As per Modi's Medical Jurisprudence, 1 st degree burn mark is also known as epidermal burn. First Degree burns consists of eythema or simple redness of the skin caused by the momentary application of flame or hot solids, or liquids much below boiling point. It can also be produced by mild irritants. The erythema marked with superficial inflammation usually disappear in few hours, but may last for several days, when the upper layer of the skin peels off but leaves no scars. They disappear after death due to the gravitation of blood to the dependent parts. Second degree burns comprise acute inflammation and blisters produced by prolonged application of a flame, liquids at boiling point or solids much above the boiling point of water. The third and fourth degree burns are also known as Dermo-Epidermal burns. The third degree burn refers to the destruction of the cuticle and part of the true skin which appears horny and dark, owing to it having been charred and shrivelled.

Exposure of nerve endings gives rise to much pain. Whereas in Fourth degree burn, the whole skin is destroyed. The fifth and sixth degree burns are also known as Deep burns. Fifth degree burn 23 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) includes penetration of the deep fascia and implications of the muscles, and results in great scarring and deformity whereas sixth degree burn involves charring of the whole limb including the bones and ends in inflammation of the subjacent tissues and organs, if death is not the immediate result. Thus, it is clear that it is not the extent of superficial burn which effects the state of mind of the patient, but it is the degree of burn which effects the state of mind of the patient.

Thus, merely because the patient had suffered 100% burns would not mean that he/she was reduced to ashes. Therefore, it cannot be held that merely because a person has sustained 100% burn injuries, therefore, he cannot make a Dying Declaration.

No attempt was made to get the Dying Declaration recorded by an Executive Magistrate.

41. It is submitted by the Counsel for the Appellant that since, the prosecution did not try to get the dying declaration of the injured recorded by an Executive Magistrate, therefore, the Dying Declaration recorded by Dr. Ankur (P.W.4) is not reliable.

42. Considered the submissions made by the Counsel for the Appellant.

43. Doctor is the best person to tell about the mental fitness of the patient. Further more, when the Doctor is of a view that the physical condition of the patient is deteriorating drastically, then it is always expected of him, that instead of wasting any time by waiting for an Executive Magistrate to record the Dying Declaration, he should 24 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) record the Dying Declaration on his own. The Supreme Court in the case of Abdul Majid Abdul Rahman v. State of Gujarat, reported in (1976) 4 SCC 351 has held as under :

12. The High Court found, and we think rightly, that this reasoning was wholly puerile. There was absolutely no basis for doubting the integrity and veracity of Dr Shah. We have examined the statement of Dr Shah. We are in entire agreement with the High Court, that Dr Shah's statement discloses "a picture of straightforwardness and forthrightness". There is absolutely nothing in that statement which could raise a suspicion that the deponent was biased in favour of the prosecution or ill-disposed towards the accused. The doctor was the best person to opine about the fitness of the deceased to make the statement, he did. The doctor found that life was ebbing fast in the patient. There was no time to call the police or a magistrate. In such a situation, the doctor was justified --

indeed, he was dutybound -- to record the dying declaration of the deceased. He was a disinterested, respectable witness. The trial Judge was therefore wholly unjustified in rejecting the evidence of the Medical Officer.

44. A similar view has been expressed by Supreme Court in the case of Ramesh (Supra).

45. Further, in the case of Laxman Vs. State of Maharashtra, reported in (2002) 6 SCC 710, the Supreme Court has held as under :

5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka 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 injured was in a fit state of mind at the time of making 25 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"

has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat.

46. It is not the requirement of law that unless and until, the Dying Declaration is recorded by an Executive Magistrate, any other written Dying Declaration would not be admissible. On the contrary, Doctor is an independent witness having no grudge to grind against the Appellant.

47. Further, apart from Oral Dying Declarations made to Jagdish (P.W.1) and Leela (P.W.2), the injured herself had disclosed to the Doctor about the incident, therefore in the IN HOUSE NOTES, Ex. P. 6, which were taken down at the time of admission of the patient in the hospital, it has been specifically mentioned that the injured had informed that She has been burnt by the Appellant.

48. So far as the defence taken by the Appellant that the injured had informed Dr. Deepak Khatri (D.W.4) that as the stove had burst therefore, She got burnt is concerned, Dr. Deepak Khatri (D.W.4) has specifically admitted in his cross-examination, that he had not talked 26 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) to the injured Bharti. Further, in the Examination-in-chief, this witness has stated that the family members of the injured had also informed that She has got burnt on account of bursting of stove.

Further, no damaged stove was seized from the place of occurrence.

Thus, it is clear that in medical slip, Ex. D.5, the History of the case was not mentioned on the basis of information given by the injured Bharti.

49. Thus, this Court is of the considered opinion, that the Oral Dying Declarations given by the injured Bharti to Jagdish (P.W.1) and Leela (P.W.2) are trustworthy and reliable. The Written Dying Declaration Ex. P.6 recorded by Dr. Ankur is also reliable. Further more, all the dying declarations find full corroboration from the bed head ticket of the injured, Ex. P.6 from which it is clear that even at the time of admission in the Hospital, the deceased had informed the Doctors that She has been burnt by the Appellant.

Whether Dehati Nalishi, Ex. P.4 lodged by the injured/deceased can be treated as Dying Declaration.

50. The Dehati Nalishi, Ex. P.4 lodged by the injured/deceased herself, fulfills all the requirements of Section 32 of Evidence Act, and accordingly, it can be treated as Dying Declaration. The Supreme Court in the case of Munnu Raja v. State of M.P., reported in (1976) 3 SCC 104 has held as under :

5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, 27 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ext. P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Evidence Act.

The maker of the statement is dead and the statement relates to the cause of his death.

51. The Supreme Court in the case of Dharam Pal v. State of U.P., reported in (2008) 17 SCC 337 has held as under :

16. The learned counsel for the appellants further argued before us that the alleged dying declaration which was given the shape of an FIR could not be made the basis of conviction when the original document signed by the deceased was not brought on record. The learned counsel for the appellants tried to prove before us that the deceased was not in a position to speak and which becomes apparent from the testimony of his father. However, it would not be correct to say so. The evidence of PW 7, Dr. R.P. Goel shows that the condition of the deceased was good and that he was in a position to speak. It would not be appropriate for us to read between the lines by giving unnecessary meanings to the testimony of Raghu. It cannot be left out of sight that Raghu also said that the deceased dictated the FIR to the police. In any view of the matter, the report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under Section 32 of the Evidence Act as a dying declaration. It is true that the original document signed by the deceased was not brought on record, but in our view, the FIR has rightly been admitted as a dying declaration. There appears no reason for the police to falsely implicate any one of the accused inasmuch as, initially, the report dictated by the deceased was taken down as a non-cognizable report under Section 323 IPC. If the police were to implicate the accused, they would not have taken down the report as a non-cognizable report in the very first place itself.

Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011)

17. That apart, the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, we may refer to some of the general propositions relating to a dying declaration. Section 32(1) of the Evidence Act deals with dying declaration and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question.

18. The principle on which a dying declaration is admissible in evidence is indicated in the maxim "nemo moriturus praesumitur mentire", which means that a man will not meet his maker with a lie in his mouth. Thus, it is clear that a dying declaration may be relating to:

(a) as to the cause of death of the deceased;

(b) as to "any of the circumstances of the transaction"

which resulted in the death of the deceased.

19. It is also clear that it is not necessary that the declarant should be under expectation of death at the time of making the statement.

52. Therefore, the Dehati Nalishi lodged by the deceased herself can always be treated as a Dying Declaration, provided it fulfills all the ingredients of Section 32 of Evidence Act. Thus, if the Dehati Nalishi, Ex. P.4 lodged by the deceased is tested, then this Court is of the considered opinion, that it fulfills all the ingredients of Section 32 of Evidence Act, therefore, being Dying Declaration is admissible in law.

Defence of the Appellant

53. According to the Appellant he also got burnt while trying to save his wife. The defence which has been taken by the Appellant is 29 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) that he got burnt while he was pushing the injured. This defence taken by the Appellant is far away from the reality. In case if a person accidentally gets burn, then an attempt would be made to extinguish the fire by putting water or blanket or bed sheet etc on the burning person and the fire cannot be extinguished by pushing the burning person. Therefore, the defence of the Appellant that he had tried to save his wife by pushing her and in that process he also sustained burn injuries is baseless and cannot be accepted. On the contrary, as the Appellant has also sustained burn injuries on his hands, thus it is clear that he must have suffered burn injuries while making an attempt to set the deceased on fire.

Whether the Appellant had poured Kerosene Oil on the deceased.

54. he injured had sustained 95-100% burn injuries. The diagram showing the condition of the injured also indicates that the entire body of the deceased had sustained burn injuries. This can happen only if some inflammable substance is used for burning a person. A person can get doused with Kerosene Oil, only when the same is poured on her. Further, a container having Kerosene Oil was seized from the spot. Thus, it is clear that the Dying Declaration that the Appellant had set the deceased on fire after pouring Kerosene Oil on her finds corroboration from the Medical as well as circumstantial evidence.

55. Under these circumstances, this Court is of the considered opinion, that the Oral Dying Declarations made to Jagdish (P.W.1) 30 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) and Leela (P.W.2), the incident narrated by the deceased herself to the Doctor at the time of admission in the hospital which is mentioned in her Bed Head Ticket, Ex.P.5, her written Dying Declaration, Ex. P.6 and Dehati Nalishi, Ex. P.4 are reliable and trustworthy.

Whether Dying Declarations can be the sole basis for conviction.

56. It is well established principle of law that if dying declaration is found to be reliable and trustworthy, then the same can be sole basis for conviction.

57. The Supreme Court in the case of Jagbir Singh Vs. State (NCT of Delhi) reported in (2019) 8 SCC 779 has held as under :

31. A survey of the decisions would show that the principles can be culled out as follows:

31.1.(i) Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court; 31.2.(ii) If there is nothing suspicious about the declaration, no corroboration may be necessary;

31.3.(iii) No doubt, the court must be satisfied that there is no tutoring or prompting;

31.4.(iv) The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; 31.5.(v) Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;

31.6.(vi) However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable. 31.7.(vii) In such cases, where the inconsistencies go to some matter of detail or description but are incriminatory in nature as far as the accused is concerned, the court would look to the 31 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable; 31.8*.(viii) The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In one dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.

In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?

58. The Supreme Court in the case of Vikas Vs. State of Maharashtra reported in (2008) 2 SCC 516 has held as under :

31. The principle underlying admissibility of dying declaration is reflected in the well-known legal maxim:

nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. A dying man is face to face with his Maker without any motive for telling a lie.

32. "Truth" said Mathew Arnold, "sits upon the lips of a dying man".

33. Shakespeare, great writer of the sixteenth century, through one of his characters explained the basic philosophy thus:

"Have I not hideous death within my view, Retaining but a quantity of life, Which bleeds away, even as a form of wax, Resolveth from his figure, against the fire? What in 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 32 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) That I must die here and live hence by truth?"

(King John, Act V, Scene IV*)

34. The great poet also said at another place:

"Where words are scarce, They are seldom spent in vain; They breathe the truth, That breathe their words in pain."

(Richard II)

35. Clause (1) of Section 32 of the Act has been enacted by the legislature advisedly as a matter of necessity as an exception to the general rule that "hearsay evidence" is "no evidence" and the evidence which cannot be tested by cross-examination of a witness is not admissible in a court of law. But the purpose of cross-examination is to test the veracity of the statement made by a witness. The requirement of administering oath and cross- examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. A man on the deathbed will not tell lies. It has been said that when a person is facing imminent death, when even a shadow of continuing in this world is practically over, every motive of falsehood is vanished. The mind is changed (sic charged) by most powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is answerable to his Maker for his act. Moreover, if the dying declaration is excluded from admissibility of evidence, it may result in miscarriage of justice inasmuch as in a given case, the victim may be the only eyewitness of a serious crime. Exclusion of his statement will leave the court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice.

59. The Supreme Court in the case of Muthu Kutty Vs. State reported in (2005) 9 SCC 113 has held as under :

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its 33 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.

The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat: (SCC pp. 480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav4 and Ramawati Devi v. State of Bihar.)

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo 34 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) Ojha v. State of Bihar.)

(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 eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)

(xi) Where there are more than one 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.)

16. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.) There is no material to show that the dying declaration was result or 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.

60. Thus, this Court is of the considered opinion, that it was the Appellant who had burnt his wife by pouring Kerosene Oil on her.

61. The next contention of the Counsel for the Appellant is that since, the incident took place all of a sudden, therefore, the offence would be punishable under Section 304 of IPC and not under Section 35 Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011) 302 of IPC.

62. Heard the learned Counsel for the Appellant.

63. The Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held as under :

7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

64. Thus, in order to bring the act of an accused within the purview of Section 304 Part 1 or 2 IPC, the accused must prove that he had neither taken any undue advantage nor acted in the cruel or unusual manner.

65. Burning a person alive, is a gruesome act. No one can claim that he had not taken undue advantage of the situation or he did not act in a cruel or unusual manner. Therefore, by no stretch of imagination, the act of the Appellant can be said to be punishable under Section 304 of IPC.

Govind Singh Vs. State of M.P. (Cr.A. No. 485 of 2011)

66. No other argument is advanced by the Counsel for the Appellant.

67. In view of the above mentioned discussion, this Court is of the considered opinion, that the Appellant is guilty of offence punishable under Section 302 of IPC. Accordingly, his conviction by the Trial Court, under Section 302 of IPC is hereby upheld.

68. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment.

Therefore, the sentence awarded by the Trial Court doesnot call for any interference.

69. Ex-consequenti, the judgment and sentence dated ]15-4-2011 passed by Sessions Judge, Gwalior in S.T. No. 66/2010 is hereby Affirmed.

70. The Appellant is in jail. He shall undergo the remaining Jail Sentence.

71. Let a copy of this judgment be immediately provided to the Appellant, free of cost.

72. The record of the Trial Court be send back along with copy of this judgment, for necessary information and compliance.

73. The Appeal fails and is hereby Dismissed.




(G.S. Ahluwalia)                                     (Rajeev Kumar Shrivastava)
          Judge                                                          Judge
                       ARUN KUMAR MISHRA
                       2022.04.28 17:49:44 +05'30'

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Madhya Pradesh High Court