REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2472 OF 2009
Shudhakar … Appellant
Versus
State of M.P. … Respondent
J U D G M E N T
Swatanter Kumar, J.
1. An important question of criminal jurisprudence as to in a case of
multiple variable dying declarations, which of the dying declaration would
be taken into consideration by the Court, what principles shall guide the
judicial discretion of the Court or whether such contradictory dying
declarations would unexceptionally result in prejudice to the case of the
prosecution, arises in the present case.
2. The facts as brought out in the case of the prosecution are that the
accused Shudhakar was married to the deceased Ratanmala and they used to
live at Ganesh Chowk Seoni, Tehsil and District Seoni, Madhya Pradesh.
They were living in the house of one Krishna Devi Tiwari. The accused was
suspicious about the character of his wife Ratanmala. On the date of
occurrence, i.e., 25th July, 1995, there was argument between the husband
and the wife in consequence to which the accused assaulted Ratanmala.
Thereafter, he poured kerosene oil on her and put her ablaze by lighting a
match stick due to which there was smoke in the house. The people living
nearby gathered around the house upon seeing the smoke and finding
Ratanmala in burning condition, took her to the hospital wherein she was
admitted by PW8, Dr. M.N. Tiwari and was occupying bed No.10 of the
surgical ward of the district hospital. Except the upper portion, her
entire body had been burnt. Her body was smelling of kerosene. The
injuries were fresh. According to the medical evidence, they were caused
within five hours and the burn injuries were fatal for life. As per the
statement of PW4, Dr. H.V. Jain, one Dr. Smt. A. Verma, lady doctor,
gynaecologist had accompanied him for the post mortem of the dead body of
the deceased which was brought by Constable Bhoje Lal from Seoni.
Statement of PW4 clearly shows that upon post mortem examination, Rigor
Mortis was found on the entire dead body. Both the eyes were closed,
superficial burns were present on the entire body. The skin had separated
at a number of places. The body was burnt between 97 per cent to 100 per
cent. There were burn injuries on the skull and occipital region. The
cause of death was shock and hipobolamar which was caused due to severe
burn injuries and due to fluid loss.
3. It is the case of the prosecution that Ratanmala had told the people
gathered there that the accused had burnt her by pouring kerosene oil on
her. When she reached the hospital, the doctor had informed the police.
The doctors also informed the Naib Tehsildar, DW1, who came to the hospital
and recorded the first dying declaration (Exhibit D/2) of the deceased
Ratanmala at 4.35 p.m. on 25th July, 1995. In her first dying declaration,
she did not implicate her husband and stated that she received the burn
injuries from a stove while cooking food. Before her death, two more dying
declarations were recorded in the hospital. One (the second) declaration
(Exhibit P-12) was recorded by Rajiv Srivastava, Tehsildar (PW9) at 6.30
p.m. on the same date. In relation thereto, Dr. Jain had endorsed the
certificate of fitness of the deceased to make the statement. The third
dying declaration (Exhibit P-6) was recorded by Sub-Inspector D.C. Doheria,
(PW7) in presence of two independent witnesses, Bharat Kumar and Abdul
Rehman. In these two subsequent dying declarations recorded by PW9 and
PW7, respectively, the deceased had specifically implicated the accused by
clearly stating that he had put kerosene oil on her and set her on fire.
The reason for not implicating her husband in her first dying declaration
was that there was every likelihood that his husband would lose the job.
4. Unfortunately, she succumbed to the burn injuries and died in the
hospital itself. Inquest proceedings were carried out. The Investigating
Officer prepared the site plan and the body of the deceased was subject to
post mortem which was performed by PW4, Dr. H.V. Jain. The Investigating
Officer recovered matches as well as burnt match, broken mangalsutra and
burnt saree from the place of occurrence. Among certain other articles
recovered from the site, one can was also recovered in which about one
litre of kerosene oil was still remaining.
5. Now, we may discuss some of the prosecution witnesses. PW1, Krishna
Bai Tiwari is the landlady in whose house the accused and the deceased used
to live. According to her, quarrels used to take place between the husband
and the wife and even cooked food used to be left behind in their house.
The accused frequently used to be under the influence of liquor. About 4-6
days prior to the date of occurrence, she had been called by the deceased
to request the accused to have food. According to this witness, on the
date of occurrence, the deceased had requested her to accompany her to the
bank for opening an account, which she had done and a bank account in the
name of the deceased was opened. Thereafter, she went upstairs but after
some time, the boys of the locality told her that smoke was coming out from
the room upstairs. When she went upstairs along with other people, she saw
the deceased in flames. They doused the flames in the mattress in an
attempt to save the deceased. On being asked, Ratanmala told her that she
had been burnt by the accused by pouring kerosene oil on her.
6. PW3, Gunwant, father of the deceased, is another witness who stated
that the deceased often told him that the accused, after drinking liquor,
used to beat her. The sister of the accused had come and informed him that
the deceased had received burn injuries and was admitted to the hospital.
7. PW5, Rajender Dubey, is a witness who was present near the house of
the accused at the time of the occurrence and after seeing the fire, he had
gone up to the house of the accused and saw that smell of kerosene was
coming from the room. The deceased’s body was burnt and she told him that
her husband had poured kerosene on her body and set her on fire. To
similar effect is the statement of PW6, Mohan Lal Yadav. This witness,
however, added that the accused was trying to extinguish the fire.
Further, as already noticed, PW7, D.C. Daharia, had recorded her statement
(Exhibit P-6). Even the accused was stated to be present at the time of
recording of the third dying declaration and she clarified that she had not
received burn injuries from the stove, as said by her earlier. We have
already noticed the evidence of the doctors.
8. It is evident that the defence had examined two witnesses, namely,
DW1, Sumer Singh, Naib Tehsildar and DW2, Dr. S.L. Multani. DW1 had
recorded the first dying declaration of the deceased. According to this
witness and as per Exhibit D2, the statement recorded by him, it is clear
that he did not take the certification of the doctor prior to the recording
of the statement to the effect that she was in a fit state of mind to make
the statement. Exhibit P12 was the second dying declaration that was
recorded and Kamat Prasad Sonadia, the witness was present at the time of
recording of this dying declaration. DW2, Dr. S.L. Multani who was
examined by the defence also stated that if a person tries to burn another
and the burnt person pushes, then it is possible to suffer such injuries as
had been suffered by the accused.
9. It is a settled principle of law that the prosecution has to prove
its case beyond any reasonable doubt while the defence has to prove its
case on the touchstone of preponderance and probabilities. Despite such a
concession, the accused has miserably failed to satisfy the court by
proving his stand which itself was vague, uncertain and, to some extent,
even contradictory.
10. Exhibit P12, the second declaration of the deceased can be usefully
referred to at this stage as under :
“Certified that Ratnabai W/o Sudhakar admitted in FSW is fully
conscious to give her statement.
Sd/-
25.7.95.
6.30 P.M.
What is your name :- Ratna Time 6.30
Husband’s name : Sudhakar
Age and place of : 21 Years Ganesh
Residence : Chowk.
What happened : My husband Sudhakar burnt me.
Shy burnt : Today I had gone along with mother to get
passbook prepared. After returning
back, my husband quarreled with me and
gave filthy abuses and said that you are
a bad character and that you have
illicit relationship. After that my
husband pour kerosene oil over me and
set me on fire. Earlier I had given
wrong statement on tutoring of my
husband.
Sd/-
25.7.95
Time 6.30 P.M.
Certified that Pt was conscious to giver her statement.
Sd/- 25.7.95
Time 6.45”
11. To similar effect is the third dying declaration, however, in some
more detail, which was recorded in presence of witnesses by the
Investigating Officer. After the prosecution evidence was concluded, the
statement of the accused under Section 313 of the Code of Criminal
Procedure, 1973 (CrPC) was recorded wherein the accused admitted the fact
that the deceased was his wife and she died because of burn injuries. Rest
of the incriminating circumstances and evidence put to him were disputed
and denied by the accused. However, in answer to question number 13, as to
whether he would like to say something in his defence, he stated that his
wife Ratanmala died in a fire incident and he had made efforts to save her
and in that process he also suffered some injuries. The accused denied
that he had put her on fire and deposed that he was innocent.
12. The learned Trial Court found that the prosecution had been able to
prove its case beyond reasonable doubt and, thus, held the accused guilty
of an offence under Section 302 IPC and punished him to undergo
imprisonment for life and to pay a fine of Rs.5,000/-, in default thereof
to undergo one year’s rigorous imprisonment.
13. Upon the appeal preferred by the accused, the High Court affirmed the
judgment of conviction and order of sentence and dismissed the appeal,
giving rise to the present appeal.
14. The main argument advanced by the learned counsel appearing for the
appellant, while impugning the judgment under appeal, is that the deceased
had made various dying declarations. The first dying declaration had
completely absolved the accused. Recording of subsequent dying
declarations (Exhibit D2) could not be made the basis of conviction keeping
in view the facts and circumstances of the present case. Reliance was
placed upon the judgment of this Court in the case of Laxman v. State of
Maharashtra [(2002) 6 SCC 710] to contend that the first dying declaration
should be believed and accused be acquitted as it was not necessary that
there should be due certification by the doctor as a condition precedent to
recording of the dying declaration. It has also been argued that the
prosecution concealed from the Court and did not itself produce the first
dying declaration which has been proved by DW1. Thus, presumption under
Section 114 of the Indian Evidence Act, 1872 (for short the ‘the Evidence
Act’) should be drawn against the prosecution and benefit be given to the
accused. The first dying declaration should be preferred as it is the most
genuine statement made by the deceased and in the present case will entitle
the accused for an order of acquittal by this Court. Reliance has been
placed upon the judgment of this Court in the case of Muthu Kutty v. State
[(2005) 9 SCC 113] in that regard.
15. To the contrary, the argument on behalf of the State is that the
first dying declaration is based on falsehood and was made under the
influence of the family members of the accused. The second and third dying
declarations had been recorded after due certification by the doctor and
are duly corroborated by other prosecution evidence. The deceased herself
has provided the reason why she had made the first dying declaration which
was factually incorrect. While placing reliance upon the judgment of this
Court in the case of Lakhan v. State of M.P. [(2010) 8 SCC 514], it has
been contended that in the case of contradictory dying declarations, the
one which is proved and substantiated by other evidence should be believed.
Since Exhibit P12 is the true dying declaration of the deceased, the
accused has rightly been convicted under Section 302 IPC and the present
appeal is liable to be dismissed.
16. We may, now, refer to some of the judgments of this Court in regard
to the admissibility and evidentiary value of a dying declaration. In the
case of Bhajju @ Karan v. State of M.P. [(2012) 4 SCC 327], this Court
clearly stated that Section 32 of the Evidence Act was an exception to the
general rule against admissibility of hearsay evidence. Clause (1) of
Section 32 makes statement of the deceased admissible, which has been
generally described as dying declaration. The court, in no uncertain
terms, held that it cannot be laid down as an absolute rule of law that
dying declaration cannot form the sole basis of conviction unless it is
corroborated by other evidence. The dying declaration, if found reliable,
could form the basis of conviction. This principle has also earlier been
stated by this Court in the case of Surinder Kumar v. State of Haryana
(2011) 10 SCC 173 wherein the Court, while stating the above principle, on
facts and because of the fact that the dying declaration in the said case
was found to be shrouded by suspicious circumstances and no witness in
support thereof had been examined, acquitted the accused. However, the
Court observed that when a dying declaration is true and voluntary, there
is no impediment in basing the conviction on such a declaration, without
corroboration.
17. In the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14
SCC 444], the Court expressed a caution that a mechanical approach in
relying upon the dying declaration just because it is there, is extremely
dangerous. The court has to examine a dying declaration scrupulously with
a microscopic eye to find out whether the dying declaration is voluntary,
truthful, made in a conscious state of mind and without being influenced by
other persons and where these ingredients are satisfied, the Court
expressed the view that it cannot be said that on the sole basis of a dying
declaration, the order of conviction could not be passed.
18. In the case of Laxman (supra), the Court while dealing with the
argument that the dying declaration must be recorded by a Magistrate and
the certificate of fitness was an essential feature, made the following
observations. The court answered both these questions as follows:
“3. The juristic theory regarding acceptability of a dying
declaration is that such declaration is made in extremity, when
the party is at the point of death and when every hope of this
world is gone, when every motive to falsehood is silenced, and
the man is induced by the most powerful consideration to speak
only the truth. Notwithstanding the same, great caution must be
exercised in considering the weight to be given to this species
of evidence on account of the existence of many circumstances
which may affect their truth. The situation in which a man is on
the deathbed is so solemn and serene, is the reason in law to
accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with.
Since the accused has no power of cross-examination, the courts
insist that the dying declaration should be of such a nature as
to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to
see that the statement of the deceased was not as a result of
either tutoring or prompting or a product of imagination. The
court also must further decide that the deceased was in a fit
state of mind and had the opportunity to observe and identify
the assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental condition to
make the dying declaration looks up to the medical opinion. But
where the eyewitnesses state that the deceased was in a fit and
conscious state to make the declaration, the medical opinion
will not prevail, nor can it be said that since there is no
certification of the doctor as to the fitness of the mind of the
declarant, the dying declaration is not acceptable. A dying
declaration can be oral or in writing and any adequate method of
communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. In
most cases, however, such statements are made orally before
death ensues and is reduced to writing by someone like a
Magistrate or a doctor or a police officer. When it is recorded,
no oath is necessary nor is the presence of a Magistrate
absolutely necessary, although to assure authenticity it is
usual to call a Magistrate, if available for recording the
statement of a man about to die. There is no requirement of law
that a dying declaration must necessarily be made to a
Magistrate and when such statement is recorded by a Magistrate
there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be attached
to such statement necessarily depends on the facts and
circumstances of each particular case. What is essentially
required is that the person who records a dying declaration must
be satisfied that the deceased was in a fit state of mind. Where
it is proved by the testimony of the Magistrate that the
declarant was fit to make the statement even without examination
by the doctor the declaration can be acted upon provided the
court ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of caution and
therefore the voluntary and truthful nature of the declaration
can be established otherwise.”
19. In Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr.
[(2012) 4 SCC 722], the court inter alia discussed the law related to dying
declaration with some elaboration: -
“23. Now, we come to the second submission raised on behalf of
the appellant that the material witness has not been examined
and the reliance cannot be placed upon the sole testimony of the
police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not
the number of witnesses that matters but it is the substance. It
is also not necessary to examine a large number of witnesses if
the prosecution can bring home the guilt of the accused even
with a limited number of witnesses. In Lallu Manjhi v. State
of Jharkhand (2003) 2 SCC 401, this Court had classified the
oral testimony of the witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious
and see if the statement of such witness is corroborated, either
by the other witnesses or by other documentary or expert
evidence.
25. Equally well settled is the proposition of law that where
there is a sole witness to the incident, his evidence has to be
accepted with caution and after testing it on the touchstone of
evidence tendered by other witnesses or evidence otherwise
recorded. The evidence of a sole witness should be cogent,
reliable and must essentially fit into the chain of events that
have been stated by the prosecution. When the prosecution relies
upon the testimony of a sole eyewitness, then such evidence has
to be wholly reliable and trustworthy. Presence of such witness
at the occurrence should not be doubtful. If the evidence of the
sole witness is in conflict with the other witnesses, it may not
be safe to make such a statement as a foundation of the
conviction of the accused. These are the few principles which
the Court has stated consistently and with certainty.
26. Reference in this regard can be made to Joseph v. State of
Kerala (2003) 1 SCC 465 and Tika Ram v. State of M.P. (2007) 15
SCC 760. Even in Jhapsa Kabari v. State of Bihar (2001) 10 SCC
94, this Court took the view that if the presence of a witness
is doubtful, it becomes a case of conviction based on the
testimony of a solitary witness. There is, however, no bar in
basing the conviction on the testimony of a solitary witness so
long as the said witness is reliable and trustworthy.
27. In Jhapsa Kabari (supra), this Court noted the fact that
simply because one of the witnesses (a fourteen-year-old boy)
did not name the wife of the deceased in the fardbeyan, it would
not in any way affect the testimony of the eyewitness i.e. the
wife of the deceased, who had given a graphic account of the
attack on her husband and her brother-in-law by the accused
persons. Where the statement of an eyewitness is found to be
reliable, trustworthy and consistent with the course of events,
the conviction can be based on her sole testimony. There is no
bar in basing the conviction of an accused on the testimony of a
solitary witness as long as the said witness is reliable and
trustworthy.
28. In the present case, the sole eyewitness is stated to be a
police officer i.e. PW 1. The entire case hinges upon the
trustworthiness, reliability or otherwise of the testimony of
this witness. The contention raised on behalf of the appellant
is that the police officer, being the sole eyewitness, would be
an interested witness, and in that situation, the possibility of
a police officer falsely implicating innocent persons cannot be
ruled out.
29. Therefore, the first question that arises for consideration
is whether a police officer can be a sole witness. If so, then
with particular reference to the facts of the present case,
where he alone had witnessed the occurrence as per the case of
the prosecution.
30. It cannot be stated as a rule that a police officer can or
cannot be a sole eyewitness in a criminal case. It will always
depend upon the facts of a given case. If the testimony of such
a witness is reliable, trustworthy, cogent and duly corroborated
by other witnesses or admissible evidence, then the statement of
such witness cannot be discarded only on the ground that he is a
police officer and may have some interest in success of the
case. It is only when his interest in the success of the case is
motivated by overzealousness to an extent of his involving
innocent people; in that event, no credibility can be attached
to the statement of such witness.
31. This Court in Girja Prasad (2007) 7 SCC 625 while
particularly referring to the evidence of a police officer said
that it is not the law that police witnesses should not be
relied upon and their evidence cannot be accepted unless it is
corroborated in material particulars by other independent
evidence. The presumption applies as much in favour of a police
officer as any other person. There is also no rule of law which
lays down that no conviction can be [pic]recorded on the
testimony of a police officer even if such evidence is otherwise
reliable and trustworthy. The rule of prudence may require more
careful scrutiny of their evidence. If such a presumption is
raised against the police officers without exception, it will be
an attitude which could neither do credit to the magistracy nor
good to the public, it can only bring down the prestige of the
police administration.”
20. The ‘dying declaration’ is the last statement made by a person at a
stage when he in serious apprehension of his death and expects no chances
of his survival. At such time, it is expected that a person will speak the
truth and only the truth. Normally in such situations the courts attach
the intrinsic value of truthfulness to such statement. Once such statement
has been made voluntarily, it is reliable and is not an attempt by the
deceased to cover up the truth or falsely implicate a person, then the
courts can safely rely on such dying declaration and it can form the basis
of conviction. More so, where the version given by the deceased as dying
declaration is supported and corroborated by other prosecution evidence,
there is no reason for the courts to doubt the truthfulness of such dying
declaration.
21. Having referred to the law relating to dying declaration, now we may
examine the issue that in cases involving multiple dying declarations made
by the deceased, which of the various dying declarations should be believed
by the Court and what are the principles governing such determination.
This becomes important where the multiple dying declarations made by the
deceased are either contradictory or are at variance with each other to a
large extent. The test of common prudence would be to first examine which
of the dying declarations is corroborated by other prosecution evidence.
Further, the attendant circumstances, the condition of the deceased at the
relevant time, the medical evidence, the voluntariness and genuineness of
the statement made by the deceased, physical and mental fitness of the
deceased and possibility of the deceased being tutored are some of the
factors which would guide the exercise of judicial discretion by the Court
in such matters. In the case of Lakhan (supra), this Court provided
clarity, not only to the law of dying declaration, but also to the question
as to which of the dying declarations has to be preferably relied upon by
the Court in deciding the question of guilt of the accused under the
offence with which he is charged. The facts of that case were quite
similar, if not identical to the facts of the present case. In that case
also, the deceased was burnt by pouring kerosene oil and was brought to the
hospital by the accused therein and his family members. The deceased had
made two different dying declarations, which were mutually at variance.
The Court held as under :
“9. The doctrine of dying declaration is enshrined in the legal
maxim nemo moriturus praesumitur mentire, which means “a man
will not meet his Maker with a lie in his mouth”. The doctrine
of dying declaration is enshrined in Section 32 of the Evidence
Act, 1872 (hereinafter called as “the Evidence Act”) as an
exception to the general rule contained in Section 60 of the
Evidence Act, which provides that oral evidence in all cases
must be direct i.e. it must be the evidence of a witness, who
says he saw it. The dying declaration is, in fact, the statement
of a person, who cannot be called as witness and, therefore,
cannot be cross-examined. Such statements themselves are
relevant facts in certain cases.
10. This Court has considered time and again the
relevance/probative value of dying declarations recorded under
different situations and also in cases where more than one dying
declaration has been recorded. The law is that if the court is
satisfied that the dying declaration is true and made
voluntarily by the deceased, conviction can be based solely on
it, without any further corroboration. It is neither a rule of
law nor of prudence that a dying declaration cannot be relied
upon without corroboration. When a dying declaration is
suspicious, it should not be relied upon without having
corroborative evidence. 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 must be in a fit state of mind to make the declaration
and must identify the assailants. Merely because a dying
declaration does not contain the details of the occurrence, it
cannot be rejected and in case there is merely a brief
statement, it is more reliable for the reason that the shortness
of the statement is itself a guarantee of its veracity. If the
dying declaration suffers from some infirmity, it cannot alone
form the basis of conviction. Where the prosecution version
differs from the version given in the dying declaration, the
said declaration cannot be acted upon. (Vide Khushal Rao v.
State of Bombay1, Rasheed Beg v. State of M.P., K. Ramachandra
Reddy v. Public Prosecutor, State of Maharashtra v. Krishnamurti
Laxmipati Naidu, Uka Ram v. State of Rajasthan, Babulal v. State
of M.P., Muthu Kutty v. State, State of Rajasthan v. Wakteng and
Sharda v. State of Rajasthan.)
XXX XXX XXX
23. The second dying declaration was recorded by Shri Damodar
Prasad Mahure, Assistant Sub-Inspector of Police (PW 19). He was
directed by the Superintendent of Police on telephone to record
the statement of the deceased, who had been admitted in the
hospital. In that statement, she had stated as under:
“On Sunday, in the morning, at about 5.30 a.m., my husband
Lakhan poured the kerosene oil from a container on my head
as a result of which kerosene oil spread over my entire
body and that he (Lakhan) put my sari afire with the help
of a chimney, due to which I got burnt.”
She had also deposed that she had written a letter to her
parents requesting them to fetch her from the matrimonial home
as her husband and in-laws were harassing her. The said dying
declaration was recorded after getting a certificate from the
doctor stating that she was in a fit physical and mental
condition to give the statement.
24. As per the injury report and the medical evidence it remains
fully proved that the deceased had the injuries on the upper
part of her body. The doctor, who had examined her at the time
of admission in hospital, deposed that she had burn injuries on
her head, face, chest, neck, back, abdomen, left arm, hand,
right arm, part of buttocks and some part of both the thighs.
The deceased was 65% burnt. At the time of admission, the smell
of kerosene was coming from her body.
XXX XXX XXX
26. Undoubtedly, the first dying declaration had been recorded
by the Executive Magistrate, Smt Madhu Nahar (DW 1), immediately
after admission of the deceased Savita in the hospital and the
doctor had certified that she was in a fit condition of health
to make the declaration. However, as she had been brought to the
hospital by her father-in-law and mother-in-law and the medical
report does not support her first dying declaration, the trial
court and the High Court have rightly discarded the same.
XXX XXX XXX
30. Thus, in view of the above, we reach the following
inescapable conclusions on the questions of fact:
(c) The second dying declaration was recorded by a police
officer on the instruction of the Superintendent of Police
after getting a certificate of fitness from the doctor,
which is corroborated by the medical evidence and is free
from any suspicious circumstances. More so, it stands
corroborated by the oral declaration made by the deceased
to her parents, Phool Singh (PW 1), father and Sushila (PW
3), mother.
22. In the case of Nallam Veera Stayanandam and Others v. Public
Prosecutor, High Court of A.P. [(2004) 10 SCC 769], this Court, while
declining to except the findings of the Trial Court, held that the Trial
Court had erred because in the case of multiple dying declarations, each
dying declaration has to be considered independently on its own merit so as
to appreciate its evidentiary value and one cannot be rejected because of
the contents of the other. In cases where there is more than one dying
declaration, it is the duty of the court to consider each one of them in
its correct perspective and satisfy itself which one of them reflects the
true state of affairs. Similarly, in the case Sher Singh & Anr. v. State
of Punjab [(2008) 4 SCC 265], the Court held that absence of doctor’s
certification is not fatal if the person recording the dying declaration
is satisfied that the deceased was in a fit state of mind and the
requirement of doctor’s certificate is essentially a rule of caution. The
Court, while dealing with the case involving two dying declarations
observed that the first dying declaration could not be relied upon as it
was not free and voluntary and second statement was more probable and
natural and mere contradiction with the first will not be fatal to the case
of the prosecution. The Court held as under :
“16. Acceptability of a dying declaration is greater because the
declaration is made in extremity. When the party is at the verge
of death, one rarely finds any motive to tell falsehood and it
is for this reason that the requirements of oath and cross-
examination are dispensed with in case of a dying declaration.
Since the accused has no power of cross-examination, the court
would insist that the dying declaration should be of such a
nature as to inspire full confidence of the court in its
truthfulness and correctness. The court should ensure that the
statement was not as a result of tutoring or prompting or a
product of imagination. It is for the court to ascertain from
the evidence placed on record that the deceased was in a fit
state of mind and had ample opportunity to observe and identify
the culprit. Normally, the court places reliance on the medical
evidence for reaching the conclusion whether the person making a
dying declaration was in a fit state of mind, but where the
person recording the statement states that the deceased was in a
fit and conscious state, the medical opinion will not prevail,
nor can it be said that since there is no certification of the
doctor as to the fitness of mind of the declarant, the dying
declaration is not acceptable. What is essential is that the
person recording the dying declaration must be satisfied that
the deceased was in a fit state of mind. Where it is proved by
the testimony of the Magistrate that the declarant was fit to
make the statement without there being the doctor's opinion to
that effect, it can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A certificate by
the doctor is essentially a rule of caution and, therefore, the
voluntary and truthful nature of a statement can be established
otherwise.
17. In the present case, the first dying declaration was
recorded on 18-7-1994 by ASI Hakim Singh (DW 1). The victim did
not name any of the accused persons and said that it was a case
of an accident. However, in the statement before the court,
Hakim Singh (DW 1) specifically deposed that he noted that the
declarant was under pressure and at the time of recording of the
dying declaration, her mother-in-law was present with her. In
the subsequent dying declaration recorded by the Executive
Magistrate Rajiv Prashar (PW 7) on 20-7-1994, she stated that
she was taken to the hospital by the accused only on the
condition that she would make a wrong statement. This was
reiterated by her in her oral dying declaration and also in the
written dying declaration recorded by SI Arvind Puri (PW 8) on
22-7-1994. The first dying declaration exonerating the accused
persons made immediately after she was admitted in the hospital
was under threat and duress that she would be admitted in the
hospital only if she would give a statement in favour of the
accused persons in order to save her in-laws and husband. The
first dying declaration does not appear to be coming from a
person with free mind without there being any threat. The second
dying declaration was more probable and looks natural to us.
Although it does not contain the certificate of the doctor that
she was in a fit state of mind to give the dying declaration but
the Magistrate who recorded the statement had certified that she
was in a conscious state of mind and in a position to make the
statement to him. Mere fact that it was contrary to the first
declaration would not make it untrue. The oral dying declaration
made to the uncle is consistent with the second dying
declaration implicating the accused persons stating about their
involvement in the commission of crime. The third dying
declaration recorded by the SI on the direction of his superior
officer is consistent with the second dying declaration and the
oral dying declaration made to her uncle though with some minor
inconsistencies. The third dying declaration was recorded after
the doctor certified that she was in a fit state of mind to give
the statement.”
23. Examining the evidence in the present case in light of the above-
stated principles, we have no hesitation in holding that the first dying
declaration was not voluntary and made by free will of the deceased. This
we say so for variety of reasons :
1) When the deceased was brought to the hospital, she was accompanied by
the accused and other relations. While her statement Exhibit D-2
was recorded by DW1, Naib Tehsildar, the accused and his relations
were present by the side of the deceased.
2) DW1, though mentions in his statement that the deceased was fully
conscious, chose not to obtain any fitness certificate from the
doctor on duty. In spite of it being a rule of caution, in the
peculiar facts of the present case where the deceased had suffered
97 per cent burn injuries, DW1 should have obtained the fitness
certificate from the doctor.
3) The statement of the deceased was totally tilted in favour of her
husband and the version put forward was that she had caught fire
from the stove while cooking. This appears to be factually
incorrect inasmuch as if she had caught fire from the stove, the
question of the mattress and other items catching fire, which were
duly seized and recovered by the Investigating Officer, would not
have arisen.
4) Furthermore, within a short while, after her first statement, she
changed her view. Exhibit P12, the second dying declaration, was
recorded at 6.30 p.m. on the same day after due certification by the
doctor that she was conscious and in a fit condition to make the
statement. This statement was recorded by PW9, the Tehsildar. In
his statement, PW9 has categorically stated that he was directed by
the SDM to record the dying declaration. He had even prepared memo,
Exhibit P-13, and sent the same to the Police Station. He
specifically stated that the deceased was in a great pain and was
groaning. She was not even fully conscious. According to him, he
was not even informed of recording of the fact of the previous dying
declaration. He had carried with him the memo issued by the SDM for
recording the statement of the deceased. No such procedure was
adhered to by DW1. All these proceedings are conspicuous by their
very absence in the exhibited documents and the statement of the
said witnesses.
5) The third dying declaration which was recorded by PW7, Sub-Inspector,
was also recorded after due certification and in presence of the
independent witnesses Bharat Kumar and Abdul Rehman. Furthermore,
PW6 gave the complete facts right from the place of occurrence to
the recording of dying declaration of the deceased. He
categorically denied the suggestion that the deceased had stated to
him that she caught fire from the stove. Rather, he asserted that
the deceased had specifically told him that the accused had put her
on fire.
6) The second and third dying declarations of the deceased are quite in
conformity with each other and are duly supported by PW6, PW7, PW9
and the medical evidence produced on record. The accused, having
suffered 97 per cent burns, could not have been fully conscious and
painless, as stated by DW1. According to DW2, the doctor, the
accused could suffer the injuries that he suffered when the deceased
would have pushed him back when he was attempting to burn the
deceased.
7) Besides all this, the accused had admitted the deceased to be his
wife and they were living together and that she caught fire. It was
expected of him to explain to the Court as to how she had caught the
fire. Strangely, he did not state the story of his wife catching
fire from the stove in his statement under Section 313 CrPC, though
the trend of cross-examination of the prosecution witnesses on his
behalf clearly indicates that stand.
8) We have already discussed that the theory of the deceased catching
fire from the stove is neither probable nor possible in the facts of
the present case. The kind of burn injuries she suffered clearly
shows that she was deliberately put on fire, rather than being
injured as a result of accidental fire.
9) Besides the deceased had herself stated the reason behind her falsely
making the first declaration. According to her, her husband was
likely to lose his job if she implicated him. It is clear from the
record that the relations of the accused were present at the time of
making the first dying declaration and the deceased had stated
wrongly on the tutoring of her husband.
10) The recoveries from the place of occurrence clearly show a struggle
or fight between the deceased and the accused before she suffered
the burn injuries.
11) In addition to the above, another significant aspect of the present
case is that the deceased had also made a dying declaration, even
prior to the three written dying declarations, to PW1, the landlady
and PW6. She had categorically stated to these witnesses when death
was staring her in the eyes that she was burnt by her husband by
pouring kerosene oil on her. Both these witnesses successfully
stood the subtle cross-examination conducted by the counsel
appearing for the accused. We see no reason to disbelieve these
witnesses who were well known to both, the deceased as well as the
accused.
24. Thus, in our considered view, the second and third dying declarations
are authentic, voluntary and duly corroborated by other prosecution
witnesses including the medical evidence. These dying declarations, read
in conjunction with the statement of the prosecution witnesses, can safely
be made the basis for conviction of the accused.
25. The argument that the first dying declaration recorded by DW1 had not
been produced on record by the prosecution and, therefore, an adverse
inference should be drawn against the prosecution in terms of Section 114
of the Evidence Act ,is without any merit. This document has not only been
produced but has even been critically examined by the Trial Court as well
as the High Court. It is a settled principle of law of evidence that the
question of presumption in terms of Section 114 of the Evidence Act only
arises when an evidence is withheld from the Court and is not produced by
any of the parties to the lis.
26. As a result of the above discussion, we find no infirmity in the
appreciation of evidence and law in the concurrent judgments of the courts.
Hence, we dismiss this appeal.
………...….…………......................J.
(Swatanter Kumar)
………...….…………......................J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
July 24, 2012[pic]
