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“49. As per the first version, it was leaking of petrol pipe of the motorcycle, which was the cause of fire and sustaining of burn injuries by both the accused and the deceased, and in this regard, the testimony of PW-30 is very material. PW-30 Dr. Thakur Thussu has stated that as per MLC Ex. PW-30/A of accused Jagbir and Ex.PW-30/B of deceased Santosh, the alleged history given was of thermal burns when the accused was trying to ignite the  matchstick for smoking and accidentally a fire erupted and probably due to nearby leaking of petrol tank, they got engulfed in fire, but at that very time, Dr. K.K. Sharma, who had examined them and who had left the hospital (and his present whereabouts could not be ascertained and because of the same reason, request was sent to Medical Superintendent, Safdarjung Hospital, to depute any doctor or doctor or doctors conversant with the handwriting and signature of Dr. K.K. Sharma and who can depose about the contents of the MLC. PW-30 Dr. Thakur Thussu, Sr. Resident, Deptt. Of Burns and Plastic Surgery, Safdarjung Hospital, was called), in the MLC itself, the history was disbelieved by the doctor, who has specifically mentioned that both the husband and wife were unable to tell the cause of kerosene oil emanating from their body and on examination, smell of kerosene was emanating from the body, and special note in this regard was appended by Dr. K.K. Sharma that the patient is not giving a proper history.”

38. We can proceed on the basis that even absence of the certificate by a Doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

39. Turning to the facts of this case, the following features are most important:

A. The patient was brought to the hospital on 24.01.2008 at about 09.30 P.M. where MLC was recorded. The MLC specifically records that the patient was conscious, oriented, follows verbal command and able to speak. This material undoubtedly would show that as on 24.01.2008 at 09.30 P.M., the patient was fully conscious and oriented. In fact, the statement, which is made by her/deceased, is sought to be made use of by the appellant himself as a dying declaration. If that is so, it would be illogical to not proceed on the basis that the patient was capable of making a dying declaration. Deceased also made a statement at 01.30 P.M. on 25.01.2008 which is the next day. Again, it was relied upon by the appellant himself. This means that the appellant is also proceeding on the basis that on 25.01.2008, the deceased was in a condition to make the statement.

56. The question then arises about the fact of the previous statements which have been attributed to the deceased contained in the MLC dated 24.01.2005 and in the statement of the deceased recorded on 25.01.2008. The view taken by the courts is that the deceased and the appellant were admitted in the same hospital, the presence of the appellant would have come in the way of the deceased speaking of the truth.

57. We are of the view that the courts below were not in error in disregarding the statement attributed to the deceased in the MLC dated 24.01.2008 and the statement taken on the next day, i.e., on 25.01.2008. The incident, admittedly, took place towards in the evening of 24.01.2008. The appellant and the deceased were taken by the Police in the PCR vehicle to the hospital. It is the proximity of the appellant, which apparently stood in the way of the deceased, disclosing the truth of the matter. The appellant and the deceased continued to be in the same hospital on 25.01.2008 also. In this regard, in the dying declaration, relied upon by the prosecution, the deceased has stated that as the appellant had extended threat to her, she could not give a statement on the very same day. Apparently, this means that she has proceeded on the basis that the declaration made on 27.01.2008 is the first dying declaration which she is making. She has, in other words, not treated the statement made on 24.01.2008 at the time when she was admitted, as a declaration. So also, the statement made on 25.01.2008, she was operating under the threat extended by her husband.

60. Let us also examine the content of the actual case of the defence as is sought to be established through the statement in the MLC dated 24.01.2008 and the statement on 25.01.2008. The case set up in the MLC is that deceased suffered burns when the appellant tried to ignite a matchstick for smoking and the fire erupted due to petrol leaking from the tank of the motorcycle. As already noted, there is no smell of petrol. However, what is to be noted is the presence of kerosene. In fact, in the very statement, which is ascribed to the deceased on 24.01.2008, it is recorded that the deceased was unable to explain the cause of kerosene smell from her body. This, apparently, shows that the deceased was hoping that she would survive, and if she explained the cause of the smell of the kerosene, necessarily implicating the appellant, the chance of her married life surviving would come to an end. As already noted, there is a note of Dr. K. K. Sharma that the patient was not giving proper history. There is also the aspect of the threat explained. Whether it is her desire or the threat, both prevented the disclosure of the truth. In the statement of 25.01.2008, it is stated that the deceased deposed that she resides with the appellant and mother. Earlier, there had been some problem between the appellant and the deceased. She was since last one year living with the appellant happily. There is no such quarrel between them. Mother had gone on 24.01.2008 for matrimonial home of Rakesh, younger sister, at Rohtak. Appellant came back in the evening. They had dinner and were preparing to go for sleep. She locked the gate while the appellant was smoking biri near the motorcycle. All of a sudden, the motorcycle caught fire. Appellant was trying to extinguish the fire and his clothes also caught fire. Both of them screamed. Neighbours saved both of them. No one had done this intentionally. The above case is founded on a premise which eliminates the possibility of kerosene. We have, however, noted that there is overwhelming evidence that the fire was caused by the use of kerosene. In the statement, there is no reference to the appellant being drunk. Everything was normal till the accidental fire erupted upon the motorcycle catching fire. Deceased states that the appellant was trying to extinguish the fire and his clothes also caught fire. The deceased, however, does not state that she went to extinguish the fire and thereby sustained the burn injuries. In other words, the statement on 25.01.2008 does not contain any reason as to how the deceased caught fire. There was no statement that she suffered the extensive (65 per cent) burn injuries when she tried to put out the fire. Secondly, the version involves the motorcycle catching fire. There are photographs of the motorcycle. It is only the part of the seat of the motorcycle which was burnt. In this regard, it is apposite to notice that PW14-Police Photographer has deposed about reaching the spot on 24.01.2008 at 09.00 P.M. and taking the photographs, inter alia, of the motorcycle. Statement of 25.01.2008 does not appear to indicate the cause of the burn injuries suffered by the deceased, for the reasons stated above. This version also is incompatible with the presence of the kerosene can which is proved by the evidence of PW29-Investigating Officer, PW-14- photographer and the photograph. The statements made on 24.01.2008 and 25.01.2008 will not explain the cause of smell of kerosene emanating from the body, both of the deceased and from the appellant, as also the clothes smelling of kerosene. PW30 apparently spoke about the clothes smelling (MLC recorded by Dr. K.K. Sharma). That the appellant was unable to tell the cause of kerosene smell from his body. It is found that kerosene smell was present in the body of the patient.