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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.301 OF 2008
Bhajju @ Karan Singh ... Appellant
Versus
State of M.P. ... Respondent
J U D G M E N T
Swatanter Kumar, J.
1. The present appeal is directed against the judgment of
conviction and order of sentence dated 9th February, 1998 passed
by the Court of Sessions Judge, Tikamgarh and affirmed by the
High Court of Madhya Pradesh, Bench at Jabalpur, vide its
judgment dated 7th August, 2007.
2. The facts giving rise to the present appeal fall within a very
narrow compass and are being stated at the very outset. Bhajju @
Karan Singh, the appellant herein, was married to Medabai, the
deceased, and was living in Niwadi, District Tikamgarh, Madhya
Pradesh. Bhajju had doubts about the chastity of his wife and
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often used to accuse her of having illicit relations with one
Ramdas. According to the appellant, she also had a lose temper
and on one occasion, she had left their one month old child on a
platform and had gone to her parental house along with her son,
Harendra, aged about four years. It is stated that he had even
reported this incident at the Police Station, Niwadi, on 2nd
September, 1995. On the other hand, the prosecution has alleged
that besides accusing the deceased of having illicit relations, he
used to ill-treat her and even question the paternity of the
children born out of the wedlock. In fact, on the evening before
the incident in question, he had beaten his wife with slipper. On
12th September, 1995, at about 7.00 a.m., when she was cleaning
the kitchen, Bhajju poured kerosene oil on her and set her ablaze
with the help of a match stick. She raised hue and cry. Ayub
(PW3) and Pratap (PW2) from the neighbourhood reached the spot.
They took her to the hospital in the taxi where she was examined
by Dr. Suresh Sharma (PW9), vide report Exhibit 14. Dehati
Nalishi, Exhibit P16 was recorded on the basis of which FIR
Exhibit P14 was recorded and a case was registered under Section
307 of the Indian Penal Code, 1860 (IPC). She was admitted to
the hospital and was found to be having 60 per cent burn injuries
and her blouse was smelling of kerosene oil at that time. Her
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dying declaration was recorded by the Executive Magistrate-cum-
Tehsildar at about 9.10 a.m. vide Exhibit P4. She succumbed to
the burn injuries and died on 17th October, 1995. A case under
Section 302 IPC was registered against the appellant-accused.
After registration of the case, the Investigating Officer prepared the
inquest report. Post mortem was performed and the cause of
death was opined to be extensive burn injuries. During the
investigation, statements of other witnesses including Pratap,
Ayub and Lakhanpal (PW-1) were recorded and the site plan was
prepared. Certain items were recovered from the site like broken
bangles, match box, half burnt match sticks, clothes of the
deceased, kerosene oil container, etc. Based on the ocular and
documentary evidence, the Investigating Officer filed the charge-
sheet before the court of competent jurisdiction. The appellant-
accused was committed to the Court of Sessions where he was
tried. The appellant put up the defence that because of her illicit
relationship with Ramdas, their neighbor, and her arrogant
attitude, the deceased was a difficult person to live with. However,
on 12.9.1995, she accidentally caught fire and got burnt while she
was preparing the food. As a result, she died and the accused was
innocent. Disbelieving the defence of the accused and forming an
opinion that the prosecution has been able to prove its case
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beyond reasonable doubt, the learned Sessions Judge convicted
the accused for the offence under Section 302 IPC and awarded
him rigorous imprisonment for life vide his judgment dated 9th
February, 1998. This was challenged before the High Court. The
High Court affirmed the judgment of conviction and order of
sentence passed by the learned trial court and dismissed the
appeal of the appellant/accused, giving rise to the present appeal.
3. Not only the facts of this case but also the legal issues
involved herein fall in a narrow compass. It is for the reason that
the incident in question is not disputed. Pratab (PW-2), Ayub
(PW-3) and Lakhanpal (PW-1) , who were later declared hostile by
the prosecution and subjected to cross-examination had stated
that the deceased had got burnt accidentally while she was
cooking food. They have denied any involvement of the
appellant/accused as well as the fact that the deceased had told
them that the appellant/accused had burnt her by pouring
kerosene oil on her. Furthermore, Exhibit D1 is the affidavit
stated to have been sworn by the deceased on 30th September,
1995 while she died on 17th October, 1995. In this affidavit, which
is the backbone of the defence, a similar stand has been taken by
the deceased, Medabai. In this affidavit, it was stated that at the
time of swearing-in of the affidavit in the Medical College, she was
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more or less healthy in all respects. The appellant/accused in his
statement under Section 313 of the Criminal Procedure Code,
1973 (for short `Cr.P.C.') has given the usual reply that he knows
nothing and that he was not present at his residence at the time of
the occurrence.
4. Before we comment upon this defence and the evidentiary
value of Exhibit D1, it will be appropriate to examine the case of
the prosecution. The FIR, Ext P-17 itself was registered on the
basis of a statement made by the deceased referred as Dehati
Nalishi, Exhibit P-16, and a case was registered under Section 307
IPC. It is a matter of common prudence that a person who had
been burnt and was having 60 per cent burn injuries would not be
able to go to the hospital on her own and somebody must have
taken her to the hospital. According to the prosecution, PW3 and
PW2, had reached the spot and had taken the deceased to the
hospital. Thus, they were the first persons whom the deceased
met and as per the case of the prosecution, she had told them that
Bhajju had poured kerosene on her and set her ablaze. At the
hospital, she was examined by Dr. Suresh Sharma, PW9, who in
his statement had recorded that he has examined the deceased
and she had as many as 10 injuries on her body and that some
wounds on her body which were bleeding. According to the said
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doctor, these injuries could have been caused by a Kada or some
sharp object. The burn injuries were found to be 60 per cent. The
person was burnt with kerosene oil. Lower parts of her body were
burnt. Her left hand was burnt, right hand and arm were also
burnt. He further stated that the statement of the deceased was
recorded by the Tehsildar, on which she had put her thumb
impression and that the dying declaration also had been written
by the doctor declaring that she was in full senses to make the
statement. In his cross-examination, this witness clearly stated
that the blouse that Medabai was wearing was smelling of
kerosene oil. Thus, the doctor is a witness to the dying
declaration as well as to the condition and cause of death of the
deceased.
5. PW5, Vijay Kumar is the Tehsildar who recorded the dying
declaration of the deceased. When he appeared as a witness, he
admitted to having recorded the dying declaration of the deceased,
which bore his signatures at A to A of Exhibit P4 and recording
was in his hand-writing of what was stated by Medabai and that
he added or subtracted nothing from what she had stated.
Nothing material could be brought out during the lengthy cross-
examination of this witness. Thus, the dying declaration had been
recorded by the competent officer of the executive, duly attested
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by the doctor and the cross-examination of both these witnesses
did not bring out any legal or substantial infirmity in the dying
declaration of the deceased, which could render it inadmissible or
unreliable.
6. The post mortem of the body of the deceased was performed
by Dr. S.K. Khare, PW10, and his report is Exhibit P15 which
confirms the burn injuries and the death being due to these
injuries. There is evidence which clearly shows that she tried to
fight before she succumbed to the burn assault by the
appellant/accused. In that process, her bangles were broken
which were recovered vide Exhibit P6 from the site and she also
suffered injuries which, as already noticed, were bleeding when
she was examined by Dr. Suresh Sharma, PW9. Other recoveries
were also made from the site, which evidences that the occurrence
took place in the manner as stated by the deceased. It is a
common behaviour that if a person is pouring kerosene on herself
then the maximum kerosene will be poured on the head, face and
upper parts of the body and lesser amount will reach the lower
parts of the body and clothes. Contrary to this, the lower half of
the body of the deceased had received more burn injuries than her
upper part and, in fact, if one has to even remotely believe that
Exhibit D1 could be executed by her, then on the photograph
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annexed to it, not even a single burn injury on her face and upper
part of the body is visible. If this photograph is of a date prior to
the incident then there was no occasion for the appellant/accused
or the Oath Commissioner attesting the affidavit to affix this
photograph on this affidavit. This document, thus, appears to
have been created and is, thus, incapable of being relied upon by
the Court.
7. Besides recording of Exhibit P4, two other statements of the
deceased were also recorded. Both of them were recorded by the
Police Officers on different occasions. Firstly, as already noted,
Exhibit P16 was the statement recorded immediately after the
occurrence on 12th September, 1995, on the basis of which FIR,
Ext. P-17, was registered and thereafter Exhibit P18, the
statement of the deceased under Section 161 of the Cr. P.C. was
recorded, that too, on 12th September, 1995. Exhibit P16 and P18
may, by themselves, not carry much evidentiary value but they
definitely have the same version as was recorded by PW11, the
Tehsildar in Exhibit P4, the dying declaration, which is not only
admissible in evidence but is reliable, coherent and in conformity
with the requirements of law.
8. The primary contention raised on behalf of the accused is
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that the dying declaration, Ex. P4 being the sole piece of evidence,
cannot be relied upon by the courts. There is no evidence
corroborating Ex.P4. As such, the concurrent judgments of
conviction are unsustainable.
9. Firstly, we must notice that this is not a case where the
dying declaration, Ex.P4, is the only evidence against the
appellant/accused or that whatever is stated in it, is not partially
or otherwise supported by other evidence given the fact that there
is no dispute to the occurrence in question, the statements of the
doctor, PW9 and the Investigating Officer, PW10 and the Exhibits
including the site plan, post-mortem report etc., which are
admissible pieces of substantive evidence, fully corroborate the
dying declaration. If the deceased had poured kerosene oil on
herself, then in the normal course; a) there could not be bleeding
wounds on her body, b) broken bangles could not have been
recovered from the site, in question and c) she could not have
suffered injuries on her hands and arms. All these factors show
struggle before death and this indication is further strengthened
by the fact that lower part of her body had suffered greater burn
injury, than the upper part. Had that been the case, then alone
the case of the defence could be considered by this Court, even as
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a remote probability. That certainly is not the situation in the
present case.
10. The law is very clear that if the dying declaration has been
recorded in accordance with law, is reliable and gives a cogent and
possible explanation of the occurrence of the events, then the
dying declaration can certainly be relied upon by the Court and
could form the sole piece of evidence resulting in the conviction of
the accused. This Court has clearly stated the principle that
Section 32 of the Indian Evidence Act, 1872 (for short `the Act') is
an exception to the general rule against the admissibility of
hearsay evidence. Clause (1) of Section 32 makes the statement of
the deceased admissible, which is generally described as a `dying
declaration'. The `dying declaration' essentially means the
statement made by a person as to the cause of his death or as to
the circumstances of the transaction resulting into his death. The
admissibility of the dying declaration is based on the principle
that the sense of impending death produces in a man's mind, the
same feeling as that the conscientious and virtuous man under
oath. The dying declaration is admissible upon the consideration
that the declaration was made in extremity, when the maker is at
the point of death and when every hope of this world is gone,
when every motive to file a false suit is silenced in the mind and
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the person deposing is induced by the most powerful
considerations to speak the truth. Once the Court is satisfied that
the declaration was true and voluntary, it undoubtedly can base
its conviction on the dying declaration, without requiring 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 by other evidence.
11. There is a clear distinction between the principles governing
the evaluation of a dying declaration under the English law and
the Indian law. Under the English law, credence and relevancy of
a dying declaration is only when the person making such a
statement is in hopeless condition and expecting an imminent
death. So under the English law, for its admissibility, the
declaration should have been made when in the actual danger of
death and that the declarant should have had a full apprehension
that his death would ensue. However, under the Indian law, the
dying declaration is relevant, whether the person who makes it
was or was not under expectation of death at the time of such
declaration. The dying declaration is admissible not only in the
case of homicide but also in civil suits. The admissibility of a
dying declaration rests upon the principle of nemo meritorious
praesumuntur mentiri (a man will not meet his maker with a lie in
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his mouth).
12. The law is well-settled that a dying declaration is admissible
in evidence and the admissibility is founded on the principle of
necessity. A dying declaration, if found reliable, can form the
basis of a conviction. A Court of facts is not excluded from acting
upon an uncorroborated dying declaration for finding conviction.
The dying declaration, as a piece of evidence, stands on the same
footing as any other piece of evidence. It has to be judged and
appreciated in light of the surrounding circumstances and its
weight determined by reference to the principle governing the
weighing of evidence. If in a given case a particular dying
declaration suffers from any infirmity, either of its own or as
disclosed by the other evidence adduced in the case or the
circumstances coming to its notice, the Court may, as a rule of
prudence, look for corroboration and if the infirmities are such as
would render a dying declaration so infirm that it pricks the
conscience of the Court, the same may be refused to be accepted
as forming basis of the conviction.
13. Another consideration that may weigh with the Court, of
course with reference to the facts of a given case, is whether the
dying declaration has been able to bring a confidence thereupon
or not, is it trust-worthy or is merely an attempt to cover up the
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latches of investigation. It must allure the satisfaction of the
Court that reliance ought to be placed thereon rather than
distrust.
14. In regard to the above stated principles, we may refer to the
judgments of this Court in the cases of Ravikumar @ Kutti Ravi v.
State of Tamil Nadu (2006) 9 SCC 240, Vikas and Others v. State of
Maharashtra (2008) 2 SCC 516, Kishan Lal v. State of Rajasthan
(2000) 1 SCC 310, Laxmi (Smt.) v. Om Prakash & Ors. (2001) 6
SCC 118, Panchdeo Singh v. State of Bihar (2002) 1 SCC 577.
15. In the case of Jaishree Anant Khandekar v. State of
Maharashtra (2009) 11 SCC 647, discussing the contours of the
American Law in relation to the `dying declaration' and its
applicability to the Indian law, this Court held as under: -
"24. Apart from an implicit faith in the intrinsic
truthfulness of human character at the dying moments
of one's life, admissibility of dying declaration is also
based on the doctrine of necessity. In many cases victim
is the only eyewitness to a crime on him/her and in such
situations exclusion of the dying declaration, on hearsay
principle, would tend to defeat the ends of justice.
25. American law on dying declaration also proceeds on
the twin postulates of certainty of death leading to an
intrinsic faith in truthfulness of human character and
the necessity principle. On certainty of death, the same
strict test of English law has been applied in American
jurisprudence. The test has been variously expressed as
"no hope of recovery", "a settled expectation of death".
The core concept is that the expectation of death must
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be absolute and not susceptible to doubts and there
should be no chance of operation of worldly motives."
16. It will also be of some help to refer to the judgment of this
Court in the case of Muthu Kutty and Another v. State by Inspector
of Police, T.N., (2005) 9 SCC 113 where the Court, in paragraph
15, 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 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
[(1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC
1817] (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
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true and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav
and Ramawati Devi v. State of Bihar.)
(iii) The Court has to 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
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.)
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(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.)"
17. Learned counsel for the parties have relied upon the
judgments in the case of Ravikumar @ Kutti Ravi (supra), Kishan
Lal (supra); Laxmi (Smt.) (supra),; Panchdeo Singh (supra). These
judgments do not set any other principle than what we have
already spelt above. The first attempt of the court has to be, to
rely upon the dying declaration, whether corroborated or not,
unless it suffers from certain infirmities, is not voluntary and has
been produced to overcome the latches in the investigation of the
case. There has to be a very serious doubt or infirmity in the
dying declaration for the courts to not rely upon the same. Of
course, if it falls in that class of cases, we have no doubt in our
minds that the dying declaration cannot form the sole basis of
conviction. However, that is not the case here.
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18. Then, it was also vehemently argued that the two main
witnesses PW2 and PW3 as well as the brother of the deceased
PW4, had turned hostile and, therefore, the case of the
prosecution has no legs to stand, much less that they have proved
their case beyond any reasonable doubt. This submission looks to
be attractive at the first glance but when examined in depth, is
without any merit. Firstly, there is no witness to the dying
declaration who has turned hostile. None of the witnesses, i.e.
PW2 to PW4, were witnesses to or were even remotely involved in
the recording of the three different dying declarations, i.e. Ex.P4,
P16 and P18. Reliance by the learned counsel appearing for the
appellant/accused upon the judgment of this Court in the case of
Munnu Raja and Another v. The State of Madhya Pradesh (1976) 3
SCC 104 to contend that a dying declaration cannot be
corroborated by the testimony of hostile witnesses is hardly of any
help. As already noticed, none of the witnesses or the authorities
involved in the recording of the dying declaration had turned
hostile. On the contrary, they have fully supported the case of the
prosecution and have, beyond reasonable doubt, proved that the
dying declaration is reliable, truthful and was voluntarily made by
the deceased. We may also notice that this very judgment relied
upon by the accused itself clearly says that the dying declaration
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can be acted upon without corroboration and can be made the
basis of conviction. Paragraph 6 of the said judgment reads as
under:-
"6......It is well settled that though a dying declaration
must be approached with caution for the reason that
the maker of the statement cannot be subject to cross-
examination, there is neither a rule of law nor a rule of
prudence which has hardened into a rule of law that a
dying declaration cannot be acted upon unless it is
corroborated (see Khushal Rao v. State of Bombay). The
High Court, it is true, has held that the evidence of the
two eyewitnesses corroborated the dying declarations
but it did not come to the conclusion that the dying
declarations suffered from any infirmity by reason of
which it was necessary to look out for corroboration."
19. Now, we shall discuss the effect of hostile witnesses as well
as the worth of the defence put forward on behalf of the
appellant/accused. Normally, when a witness deposes contrary to
the stand of the prosecution and his own statement recorded
under Section 161 of the Cr.P.C., the prosecutor, with the
permission of the Court, can pray to the Court for declaring that
witness hostile and for granting leave to cross-examine the said
witness. If such a permission is granted by the Court then the
witness is subjected to cross-examination by the prosecutor as
well as an opportunity is provided to the defence to cross-examine
such witnesses, if he so desires. In other words, there is a limited
examination-in-chief, cross-examination by the prosecutor and
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cross-examination by the counsel for the accused. It is admissible
to use the examination-in-chief as well as the cross-examination
of the said witness in so far as it supports the case of the
prosecution. It is settled law that the evidence of hostile witnesses
can also be relied upon by the prosecution to the extent to which
it supports the prosecution version of the incident. The evidence
of such witnesses cannot be treated as washed off the records, it
remains admissible in trial and there is no legal bar to base the
conviction of the accused upon such testimony, if corroborated by
other reliable evidence. Section 154 of the Act enables the Court,
in its discretion, to permit the person, who calls a witness, to put
any question to him which might be put in cross-examination by
the adverse party. The view that the evidence of the witness who
has been called and cross-examined by the party with the leave of
the court, cannot be believed or disbelieved in part and has to be
excluded altogether, is not the correct exposition of law. The
Courts may rely upon so much of the testimony which supports
the case of the prosecution and is corroborated by other evidence.
It is also now a settled cannon of criminal jurisprudence that the
part which has been allowed to be cross-examined can also be
relied upon by the prosecution. These principles have been
encompassed in the judgments of this Court in the cases :
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a. Koli Lakhmanbhai Chanabhai v. State of Gujarat
(1999) 8 SCC 624
b. Prithi v. State of Haryana
(2010) 8 SCC 536
c. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)
(2010) 6 SCC 1
d. Ramkrushna v. State of Maharashtra
(2007) 13 SCC 525
20. PW2 and PW3 were the persons who had met the deceased
first after she was put on fire. They were not the eye-witnesses to
the occurrence. It is an admitted case that they were the first
persons to meet the deceased after she suffered the burn injuries
and had taken her to the hospital. This was their consistent
version when stated before the police and even before the court.
Contrary to their statement made to the Investigating Agency, in
the Court, they made a statement that the deceased had told them
that she had caught fire by chimney and her burn injuries were
accidental. This was totally contrary to their version given to the
police where they had stated that she had told them that Bhajju
had poured kerosene on her and put her on fire. To the extent
that their earlier version is consistent with the story of the
prosecution, it can safely be relied upon by the prosecution and
court. The later part of their statement, in cross-examination
done either by the accused or by the prosecution, would not be of
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any advantage to the case of the prosecution. However, the
accused may refer thereto. But the court will always have to take
a very cautious decision while referring to the statements of such
witnesses who turn hostile or go back from their earlier
statements recorded, particularly, under Section 164 of the
Cr.P.C. What value should be attached and how much reliance
can be placed on such statement is a matter to be examined by
the Courts with reference to the facts of a given case.
21. PW4, brother of the deceased, is another witness who has
made an attempt to help the accused. He stated that Medabai
had died and Bhajju was his brother-in-law and she got burnt
while cooking food and that Medabai had told him that Bhajju
used to keep her nicely. Firstly, we must notice that all these
witnesses who had turned hostile or attempted to support the
accused are the neighbours or close relations of the deceased and
also that of the appellant/accused. Their somersault appears to
be founded on the consideration of saving a relation from receiving
punishment at the hands of justice. They appear to have lied
before this Court, more out of sympathy for the
appellant/accused. The very opening part of the statement of
PW4, where he says "Medabai mari ja chuki hai" and "Medabai ko
khana pakate samay aag lagi thi" is sufficient indicator of his
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sympathy and the fact that his sister has already died and that he
would not like to lose his brother-in-law and secondly, that it is
also not clear from his statement as to who told him that Medabai
had caught fire while cooking.
22. These are matters of serious consequences and render the
statement of all these three witnesses unreliable and
undependable. Thus, these statements we would refer and rely
(examination-in-chief) only to the extent they support the case of
the prosecution and are duly corroborated, not only by other
witnesses but even by the dying declaration and the medical
evidence.
23. Coming to the credibility of the defence witnesses, we have
already noticed that Ex.D1 is a document created by the defence
just to escape the punishment under law. If that is what the
deceased wanted to say, she had a number of opportunities to say
so, freely and voluntarily. However, in presence of the Tehsildar
and twice in presence of the Police, she made the same statement
implicating her husband Bhajju of pouring kerosene oil on her
and putting her on fire. Where was the necessity of typing an
affidavit and getting the same thumb-marked by the deceased
when she was suffering 60% burn injuries. If the version given in
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this affidavit was true, we see no reason why the deceased should
have stated before the police and the Tehsildar what she did. The
two defence witnesses, namely Prabhat Kumar Sharma, DW1 and
Laxmi Prasad Yadav, DW2, were examined by the defence to prove
its innocence. DW1, the Notary Public, does not state as to where,
when and at whose instance the affidavit was typed. This witness
has completely failed to explain as to why the photograph of the
deceased was fixed on the affidavit. If it was the requirement of
law, then why the photograph of a date prior to the date on which
the affidavit was sworn and attested, was affixed on the affidavit.
This witness also admitted in his cross-examination that he knew
that the affidavit was being sworn for belying a statement made
earlier, but he made no enquiries from the deceased or from any
other proper quarters to find out what was the previous statement
of the deceased. It will not be safe for the Court to rely on the
statement of this witness. DW2, is the person who had typed the
affidavit, Ex.D1. He knew Medabai. According to this witness, the
contents were typed on the basis of what Medabai had stated.
There are contradictions between the statements of DW1 and
DW2. We do not think that these witnesses are reliable and their
statements are trustworthy. We would expect a Notary Public to
maintain better professional standards rather than act at the
24
behest of a particular party.
24. For these reasons, we find no ground to interfere in the
concurrent judgments of conviction and order of sentence. The
appeal is without merit and is dismissed accordingly.
..................................,J.
[A.K. Patnaik]
..................................,J.
[Swatanter Kumar]
New Delhi;
March 15, 2012
