IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.
PURSHOTTAM CHOPRA & ANR.
STATE (GOVT. OF NCT DELHI)
Dinesh Maheshwari, J.
1.By way of these appeals, the appellants have called in question the judgment and order dated 23.05.2011 in Criminal Appeal No. 121 of 1999 and Criminal Appeal No. 139 of 1999 whereby, the High Court of Delhi has affirmed the judgment and order dated 30.01.1999 in Sessions Case No. 2 of 1998 by the Additional Sessions Judge, Delhi; and has upheld the conviction of the appellants for the offence punishable under Section 302 read with
Section 34 of Indian Penal Code (‘IPC’).
In a brief outline of the material aspects, it could be noticed that in the present case, the appellants are accused of causing death of one Sher Singh
by putting him on fire. There had been no
The relevant facts and background
3.Put in brief, the prosecution case had been that on 18.12.1997, at about
entry bearing No. 467 in Form I (Ex.
4.Simultaneously, SI Rajesh Kumar
1 These persons Purshottam and Suresh are the appellants herein.
2 The contents of this statement (Ex.
5.Thereafter, the SHO and Additional SHO of Police Station Vikas Puri reached the hospital. After recording the statement of injured, SI Rajesh Kumar left the hospital, only to arrive back at the site of incident and sent Ct. Vijay Parkash to register a complaint for the offence punishable under Section
307read with Section 34 IPC and hence, FIR No. 780 of 1997 came to be registered. During this time, SI Rajesh Kumar got the site photographed; prepared the site plan; seized one piece of burnt cloth (white colour), one half bottle of liquor, one white colour container, one burnt sweater, one match box which contained match sticks; prepared seizure memo of the articles; and
deposited the same with the Police Station at Vikas Puri.
6.On the basis of statement made by the injured Sher Singh, the appellants Purshottam and Suresh were arrested in the night intervening 18/19.12.1997 from their respective houses. In the morning hours of 19.12.1997, the information of Sher Singh’s death was received which resulted in the case being converted to one under Section 302 read with Section 34 IPC and the investigation of the case was taken over by Inspector Om Prakash, Additional SHO, Police Station Vikas Puri, who conducted inquest proceedings over the dead body of Sher Singh before sending it for post- mortem on 19.12.1997. Dr. Arvind
7.The investigating officer then prepared a scaled map; sent the articles seized to office of CFSL, Chandigarh and thereafter collected the report; and
Court of Sessions.
8.After committal, the case was tried as Sessions Case No. 2 of 1998 in the Court of Additional Sessions Judge, Delhi. In prosecution evidence, a total of 19 witnesses were examined namely,
to hospital from the place of incident in PCR van); and
9.Out of the aforesaid witnesses,
the incident, the medical officers, and the police personnel.
Purshottam Chopra from his mother.
suggestion that the deceased was a drunkard.
and seeing the smoke, he rushed to the spot; that other people from the
market had also reached there; that he saw a person burning on fire; that they
threw water from a nearby tap on the burning body of the victim who identified
himself as Sher Singh; and that someone from the market telephoned at
number 100 whereupon the police reached the spot.
address. This witness, inter alia, stated,-
“…..Some public persons had enquired from the victim as to who had put him on fire. He had told them that since he was dropped from the tempo, he had set himself on fire…..”
This witness further attributed knowledge about some of the facts to one
Daljit and alleged that Daljit had seen the victim carrying kerosene oil in
polythene towards the plot. The witness stated, inter alia, as under:
“…..Daljit had told me in the evening that he had seen the victim carrying the kerosene oil in a polythene towards that plot. (Objected to by Ld. Addl. P.P.) Police had recorded my statement and the statement of Rinku and Daljit in the same evening. Volunteered the police had also recorded statement of 10/12 persons. Daljit Singh and Rinku had not made these statement to the police in my presence.
After 2/3 days of the incident, the T.V. persons had come at plot no. 17 and had prepared a cassette. They had enquired about the incident from me and Daljit Singh. My interview was taken by City Cables. Interview of Daljit was taken by City Cables. Daljit Singh had
told city cables in his interview that he had seen the victim carrying kerosene oil in the polythene to that plot. (Objected to by Ld. Addl. P.P.)”
9.3.2.On being subjected to
reads as under:
“….The victim Sher Singh had not told the public persons in my
presence that he had put himself on fire as he was dropped from the tempo. About 100 or 120 persons had gathered at the place of incident within 5 minutes. Police had interrogated Tony and one other person from the same locality in my presence on the next day and had recorded their statements. Tony had stated to the police in his statement that victim was telling that he had put himself on fire as he was dropped from the tempo. (objected to) Tony had given the statement to police in my presence. ….”
9.4.In all, four medical officers were examined in this matter.
to take note of his testimony in the
mentioned on the opd slip. I mentioned the informant in Ex. PW- 9/A to be ‘police’ from the OPD card.”
recorded as under:
“…Burns injuries: (1) Cut down wound was present on the lower end of right upper arm. (2)
of violence of leg, signs of struggle were present on the body. Smell of kerosene was present in scalp hair.”
was obtained from him by the police in a routine manner.
him and then poured kerosene on him and set him on fire. She also stated that
on examination, the patient was found conscious and oriented, though his
general condition was critical, being that the entire surface area of his body
was found with 100% deep burns. The relevant contents of the statement
made by this witness
taken note of in requisite details as under:
“I do not know if the patient was removed earlier to the main casuality of Safdarjang hospital. Burns patient are brought directly to the casuality of burns ward. Victim Sher Sg. was not accompanied by any relative/attendant. Police had brought the patient in the casuality.
Death summary is prepared if the patient expires. Ex.
I do not remember if the patient was crying in agony when he was brought at the casuality. As soon as the patient arrives at the casuality, OPD slip is prepared by the Junior Resident. On the OPD card it is decided if the patient is to be admitted or to be sent back. MLC is prepared after the preparation of OPD card. OPD card was before me when I prepared the MLC Ex.
9.8.The testimonies of five police personnel related with this matter also need to be taken note of.
alongwith the original proforma of PCR, photocopy whereof was taken on
record as Exhibit
envelope. In his
not called any public person at the time of sealing the case property….”
gathered; that they lifted the burnt person in the PCR Van and removed him to Safdarjung Hospital; that the name of victim came to be known as Sher Singh; that no public person accompanied them from the spot in PCR Van; and that the patient was crying in pain on the way, he did not have any talk with them. In his initial
about 7.50 p.m. the same day, he was informed that the patient was fit for
giving statement whereupon he recorded the statement Ex.
and obtained the left thumb impression of Sher Singh. It was also stated by
this witness that after recording the statement of Sher Singh, he went back to
the spot to carry out investigation and handed over rukka to Ct. Vijay Parkash
for registration of FIR. Thereafter, the site plan was drawn, the site was
photographed and certain articles were seized and sealed. He further stated
that he had effected arrest of the two accused persons named by Sher Singh
in the night intervening 18/19.12.1997; and that after receiving information that
Sher Singh had passed away in the morning of 19.12.1997, the investigation
was handed over to the Inspector Om Parkash, Additional SHO.
in the commission of the said offence. He also deposed as under: “…On reaching at the spot, I did not make any investigation regarding the information recorded in DD No. 21A that one person had set himself on fire. I did not investigate this fact till the investigation remained with me.
…I had made enquires from the public persons present there during my stay for about 20 or 25 minutes at the spot. At that time, no evidence had come to show that injured Sher Singh had put on fire by someone.”
or nurse was with them at the time of recording the statement. Though
stated that he did not put in any efforts to call for SDM or MM to record the
statement of Sher Singh, yet he volunteered to state that he had sought
opinion of the concerned doctor that if he could summon SDM or MM to record
the statement but the doctor stated that the condition of the injured had
become critical. He also stated that the injured Sher Singh had stopped
talking by that time.
9.11.3.More specifically, in the
be usefully taken note of as under:
“The patient came out of the ICU at about 7.45 P.M. of 8 P.M.….
When I had moved an application for recording statement of the patient, one doctor and one nurse were present beside the patient. I had not requested the doctor and nurse in writing to remain present at the time of recording dying declaration of the patient. (Volunteered I had requested them orally). ….. I had not informed the doctor and
nurse about the consequences for not joining the investigation. (Volunteered at that time I was not aware that the patient will be dying). When the patient was brought out of ICU I had seen him burnt all over the body.
The whole body of the patient excluding eyes, nose and mouth was wrapped with bandages. The ears were also not wrapped with bandage. It is incorrect to suggest that Patient Sher Singh did not make any dying declaration and I had forged and created falsely the dying declaration Ex.
efforts to find out as to who had called the police to inform about the incident.
stated that on 18.12.1997, he along with SHO Police Station Vikas Puri had reached the hospital on getting the information about the critical condition of victim and SI Rajesh Kumar met them; at that time the victim was lying in adjoining room of ICU. The witness further stated that when the doctor concerned was asked to attest the statement of injured Sher Singh as recorded by SI Rajesh Kumar, the doctor pointed out that the facts had already been mentioned in the MLC and there was no need to attest the statement recorded by SI Rajesh Kumar. In
some demonstration of workers. It was yet further suggested that one week prior to the incident, he had an altercation with the accused persons. The witness, of course, denied such suggestions.
10.As noticed, the contents of two documents, namely, the MLC report said to have been prepared by
taken note of.
10.1.In the MLC Ex.
3.30p.m. and time of admission was 4.35 p.m., it was also stated therein that the informant was the patient himself. The doctor noticed that the patient was ‘conscious, oriented’ and that he had suffered ‘burn injuries involving whole of the body surface
stated the information given by the patient in the following terms: “Alleged to have sustained burn injury when some Purshottam & Suresh (telwala)3 threatened him & then poured kerosene on him
&set him on fire.”
10.2.The statement of the injured Sher Singh (Ex.
language. Its approximately accurate translation, as adopted by the High
Court, reads as under:
“Statement of Sher Singh, S/o Ganpat Ram, R/o
I reside with my mother and I am employed as a helper in vehicle No.
10.3.Another relevant document for the present purpose is the PCR form (Ex.
11.In their statements under Section 313 of the Code of Criminal Procedure (‘CrPC’), both the appellants denied their involvement in the commission of the
offence i.e., putting Sher Singh on fire.
11.1.The relevant portions of appellant Purshottam’s statement read as under:
“Q.3 It is further in evidence against you that you are active worker of BJP. On two or three occasions, prior to the incident quarrels/ disputes had taken place of yours with deceased Sher Singh. No report was got lodged with the police about the quarrels due to fear. What have you to say?
Ans. It is correct that I am an active member of BJP. Second part is incorrect.
Q.20 It is further in evidence against you that patient Sher Singh (since deceased) had further stated in his statement to
Ans. It is correct that I am residing at A Block, Uttam Nagar. Rest is denied.
Q.43 Do you want to say anything else?
Ans. That being politically known person, I have been falsely implicated by certain persons adversely interested against me.”
11.2.The accused Suresh also submitted that he had been falsely implicated in the case and that the evidence led in against him was false. He gave out his
version in the following:-
“Q.42 Do you want to say anything else?
Ans. I am innocent. I am running a business of hardware under the name and style of “M/S NEW DELUX PANTS and at no point time I have kerosene oil depot. The police has implicated me in this case falsely and I was picked up from my residence by the police of PS Vikas Puri on the false pretext that certain enquiries are to be made and they assured me to release on the same day. But after taking me forcely from my residence the police involved me in this case. I do not know the deceased.”
The Trial Court found the appellants guilty
12.After conclusion of the trial and after having heard the parties, the Trial Court proceeded to determine the questions involved in the matter in its impugned judgment dated 30.01.1999. The Trial Court found that there was no direct evidence about the commission of offence; and that the entire
prosecution case was hinging upon the two dying declarations said to have
been made by the deceased Sher Singh.
12.1.The Trial Court accepted the genuineness of the evidence led in by PW- 8 Dr. Sushma that the victim Sher Singh himself had informed her the reason and cause behind his injuries; that she had found the victim to be conscious and oriented though his general condition was critical; and that the veracity of the MLC Ex. PW8/A prepared by her could not be doubted. The Trial Court,
inter alia, observed and held as under:
“16. From the entire testimony of
Dr. H. K. Sharma,
the preparation of the MLC Ex.PW8/A by Dr. Sushma and in view the same has been proved on record beyond reasonable doubt.”
12.2.The Trial Court also accepted the testimony of
“18. Perusal of the above said testimony of
19.Nothing has come on record to show if any relative of the deceased was present at the time when injured Sher Singh was brought at hospital or when his MLC
12.3.The Trial Court also did not find any adversity in the situation that no statement was made to
“25……… I am of the view that despite suffering 100% burns,
injured Sher Singh was mentally fit to make dying declaration. The certificate issued to that effect by
26.….Moreover, mere for the negligence of the IO to get record the dying declaration from the SDM, the dying declaration Ex.
alone. It is not always mandatory for the police to get record the dying declaration from the SDM or Ld. M.M. though the recording of the dying declaration by these officers do expire (sic) much confidence….”
12.4.One of the principal submissions on behalf of the accused persons had been that as per the testimony of
“29……The testimony of
contradictory on many aspects. In the
12.5.The Trial Court found that the two dying declarations inspired confidence and were worthy of reliance while observing that the same were
recorded at the earliest; that none of the relatives of the victim were present at
that time; and that there was nothing to suggest if the deceased was
influenced by any consideration to falsely name the accused persons while
letting the real culprits go scot free.
12.6.The Trial Court, though found that the prosecution had failed to establish the motive of the accused persons for setting the deceased Sher Singh on fire, but observed that merely for want of proof of motive, the prosecution case could not be discarded and said as under:
“42. Though the prosecution has failed to prove specifically motive of the accused persons to put the deceased on fire, yet the same is not fatal to be prosecution case. SI Rajesh Kumar has deposed that he has made efforts to enquire the motive of the accused persons from the deceased but he had stopped talking by that time. However, it has come on record that the deceased was known to the accused persons. The deceased and the accused persons were the residents in the same locality.
12.7.The Trial Court also referred to the contention that no overt act was attributed to the accused appellant Purshottam but opined that in the proven circumstances, he could not escape liability while observing as under:
“50. From the law laid down by the Hon’ble Supreme Court in the above judgment, it is clear that accused Purshotam cannot escape the consequence simply because no overt act was attributed to him by deceased Sher Singh in his second dying declaration Ex.PW- 16/B. Reading the substrum of both the dying declaration as a whole, I am of the view that the deceased has implicated both the accused persons for the offence committed by them. It was accused Purshotam who was having previous quarrels with the deceased. So all these proved circumstances on record clearly proved the involvement of both the accused persons in the commission of the offence.”
12.8.In the ultimate analysis, the Trial Court found proved the prosecution case beyond reasonable doubt and hence, convicted the
The High Court affirmed the conviction and sentence
13.Assailing the order of conviction, the accused persons preferred separate appeals, being Criminal Appeal Nos. 121 of 1999 and 139 of 1999 before the High Court of Delhi. The High Court reappreciated the evidence and concurred with the decision of the Trial Court while holding that the statement made by the deceased Sher Singh to Dr. Sushma
13.1.The High Court particularly referred to the fact that in the PCR Form (Ex.
regards the information received at the initial stage but further to that about the
nature of injuries as also the particulars of the victim with his name and
address and the fact that he was admitted to the hospital. The High Court, in a
comprehension of the material on record, found that
not been truthful in his assertion that the victim did not say anything to him
because the subsequent entries in the PCR Form (Ex.
have been made by
from the victim only. The High Court, inter alia, observed as under:
“11…..To a person with ordinary commonsense and requiring no
great process of reasoning, it would be apparent that Anju would write the name, the parentage, the age, the address, the 100% burnt condition of Sher Singh, kerosene oil being used to burn him and he being removed to Safdarjung Hospital only through the mouth of ASI Harish, who had dared to stare into the eyes of the judicial process and falsely state that on the way to the hospital he had no talk with the deceased……”
13.2.The High Court further proceeded to analyse the description appearing in MLC Ex.
“14. Dr.Sushma has contemporaneously recorded that Sher Singh told her that Purshottam and Suresh have set him on fire after pouring kerosene oil on him. How would Dr.Sushma know two names i.e. Purshottam and Suresh unless somebody told her so. Obviously it is Sher Singh who gave said names to her.”
13.3.The High Court also referred to the contents of the dying declaration
“21. That in the dying declaration
13.4.After rejecting the contention urged on behalf of the appellants as regards the reliability of the dying declarations recorded by
“30. The settled legal position is that a dying declaration which inspires confidence needs no corroboration to sustain itself and in the instant case we have already discussed that there is sufficient evidence to bring luminance of gold to the two dying declarations made by Sher Singh and we do not find the same to be copper and that there is intrinsic evidence of truthfulness in the same for how could Dr.Sushma and SI Rajesh Kumar note the name, the parentage, the age and the address of the deceased unless the deceased told them so. How could SI Rajesh Kumar note the names of the accused, their avocation and their residential addresses unless the deceased told him so. These are tell tale pointers leading in the direction of the truthfulness of the two dying declarations made by Sher Singh and we have no evidence that Dr.Sushma has contrived a writing on the MLC. Why should she do so? There is no evidence why SI Rajesh Kumar would contrive a document? There is no evidence of any such contrivance on the part of the two. Though critical, but in a state of mind fit enough to make a statement is the evidence which has surfaced through the testimony of Dr.Rajesh Verma and he is the third person against whom no evidence of contrivance has emerged.
31…as per the
the dorsum of the hands shows the extent of the burn injuries on the hands on the dorsa side i.e. not the palm but the outer portion of the hand and therefrom there is an indication that kerosene was doused on the deceased by somebody else and not the deceased himself for if the deceased had poured kerosene oil on himself the same
could not fall on the dorsum of the hands and if this was so we would have not found peeling of the skin on the dorsum of the hand and this is an additional piece of evidence wherefrom it can be inferred that somebody else doused the deceased with kerosene and not the deceased self doused himself with kerosene.”
13.5.While rejecting the contentions urged on behalf of the appellants that the statement allegedly made by the victim Sher Singh to
“28. The contention that Rajesh
13.6.Therefore, the High Court, rather in its independent analysis of the evidence on record, concurred with the conclusion of guilt of the appellants and dismissed the appeals.
14.Assailing the conviction and sentencing in the impugned judgment, it has been contended on behalf of appellant No. 1 that the conviction of this appellant is based only on speculations and the prosecution had even failed to
prove his identity. As regards value and worth of the alleged dying declarations of the deceased, learned counsel would argue that such dying declarations are not reliable for various reasons and counts. The learned counsel has elaborated that the assertion occurring in the dying declaration Ex.
Learned counsel has argued that for various infirmities and inconsistencies as also for want of corroboration, the alleged dying declarations cannot be relied upon; and that being the sole basis of conviction, the impugned judgments deserve to be set aside. The learned counsel has, inter alia, referred to and relied upon the decisions in State of Punjab v. Gian Kaur and Anr.: AIR 1998 SC 2809, Uka Ram v. State of Rajasthan: JT 2001 (4) SC 472, Dalip Singh and Ors. v. State of Punjab: AIR 1979 SC 1173, Gopal Singh and Anr. v. State of Madhya Pradesh and Anr.: AIR 1972 SC 1557 and
Thurukanni Pompiah and Anr. v. State of Mysore: AIR 1965 SC 939.
14.1.The learned counsel has further argued that there being no
14.2.The learned counsel has further relied upon the testimony of
been declared hostile, the statement made by the deceased to
14.3.The learned counsel has also referred to the fact that as per
14.4.It has also been contended that the prosecution proved only Part I of the document Ex.
said to have been established beyond reasonable doubts. It has also been argued that the appellant No. 1 being shorter in height than the deceased, there was no likelihood of him throwing kerosene on the head of the deceased.
14.5.Lastly, with reference to the decision in Sharad Birdhi Chand Sarda v. State of Maharashtra: (1984) 4 SCC 116, learned counsel has contended that when two views are possible on evidence, one pointing to the guilt of the accused and another to his innocence, the accused is entitled to the benefit of the one which is favourable to him.
15.While assailing the conviction and sentencing, learned counsel for the appellant No. 2 has argued that the alleged dying declarations are not reliable and conviction could not have been based thereupon. It has been contended that the dying declarations are unreliable for various reasons that: (a) the OPD Card which was the first document prepared by the Hospital was not produced on record; (b) the tone and tenor of the language used in Ex.
had consumed half bottle of liquor, his making long narrative with intelligible and coherent statement remains doubtful; (g) and that no effort was made to requisition the services of Magistrate for the purpose of recording the dying declarations. Thus, according to the learned counsel, the dying declarations do not pass through the test of truthfulness and reliability and cannot be acted upon.
15.1.The learned counsel for appellant No. 2 has also strongly relied upon the testimony of
15.2.The learned counsel for the appellant No. 2 has further contended that the prosecution has failed to establish any motive for commission of crime by this appellant and, with reference to the decision in Kalabai v. State of Madhya Pradesh: 2019 SCC ONLINE SC 621, has argued that motive having not been proved, conviction under Section 302 IPC is not sustainable.
15.3.Learned counsel has also urged in the alternative that in the given set of facts and circumstances, even if the conviction of the appellant No. 2 is to be maintained, the same may be altered to the one under Part II of Section 304 IPC.
16.Per contra, the learned senior counsel for the respondent has strenuously argued that the prosecution case clearly stands established by the two dying declarations independently recorded, one by
16.1.In regard to the thumb impression on Ex.
and therefore, taking of thumb impression on Ex.
16.2.As regards the possibility of the victim having set himself on fire and the want of evidence of other persons named by
16.3.The learned senior counsel has further argued that so far as the question of motive is concerned, though the possibility of motive has come on record in the testimony of
16.4.Thus, according to the learned counsel for the respondent, the dying declarations have rightly been accepted in this case and the conviction of the appellants on that basis calls for no interference.
17.Having given thoughtful consideration to the rival submissions and having examined the record, we find no reason to consider interference in the conviction of the appellants and, in our view, these appeals must fail.
Admission and acceptability of dying declaration: the principles
18.The principles relating to admission and acceptability of the statement made by a victim representing the cause of death, usually referred to as a dying declaration, are well settled and a few doubts as regards
18.1.In the said case of Laxman, conviction of the appellant was based on dying declaration of the deceased which was recorded by the Judicial Magistrate. The Session Judge and the High Court found such dying declaration to be truthful, voluntary and trustworthy; and recorded conviction on that basis. In appeal to this Court, it was urged with reference to the decision in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh:
1999 CriLJ 4321 that the dying declaration could not have been accepted by the Court to form the sole basis of conviction since certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement. On the other hand, it was contended on behalf of the State, with
reference to the decision in Koli Chunilal Savji and Anr. v. State of Gujarat:
1999 CriLJ 4582, that the material on record indicated that the deceased was
fully conscious and was capable of making a statement; and his dying
declaration cannot be ignored merely because the doctor had not made the
endorsement about his fit state of mind to make the statement. In view of
these somewhat discordant notes, the matter came to be referred to the
Larger Bench. The Constitution Bench summed up the principles applicable as
regards the acceptability of dying declaration in the following:-
“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
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.”
18.2.The Constitution Bench affirmed the view in Koli Chunilal Savji (supra) while holding that Paparambaka Rosamma (supra), was not correctly decided. The Court said,-
“5…….It is indeed a hyper technical 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.(1999) 7 SCC 695 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 (1999) 9 SCC 562.”
19.In the case of Dal Singh (supra), this Court has pointed out that the law does not provide as to who could record dying declaration nor is there a prescribed format or procedure for the same. All that is required is the person recording dying declaration must be satisfied that the maker is in a fit state of
mind and is capable of making such a statement. This Court also pointed out
that as to whether in a given burn case, the skin of thumb had been
completely burnt or if some part of it will remain intact, would also be a
question of fact. This Court said,-
“20. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case.
21.Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to
22.So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.”
19.1.In the case of Bhagwan (supra), this Court accepted the dying declaration made by a person having suffered 92% burn injury and whose continued consciousness was certified by the doctor. This Court referred to the decision in Vijay Pal v. State (Government of NCT of Delhi): (2015) 4 SCC 749, where the statement made by the victim having suffered 100% burn injury was also accepted. This Court said :-
“23…..(B). Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration?
24.This question is also no longer res integra. In Vijay Pal v. State (NCT of Delhi): 2015 (4) SCC 749, we notice the following discussion: (SCC p. 759, paras
‘23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.
24.In State of M.P. v. Dal Singh: (2013) 14 SCC 159, a
25.Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring, and can be found reliable.”
20.In the case of Gian Kaur (supra), the dying declaration was disbelieved on the ground that though as per medical evidence the deceased had 100% burn injuries but the thumb mark appearing on the dying declaration had clear ridges and curves. The benefit of doubt extended by the High Court was found to be not unreasonable and hence, this Court declined to interfere while observing as under:-
“5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found the evidence of
20.1.In the case of Gopal Singh (supra), 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:-
“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 the case of Dalip Singh (supra), 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: -
“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 the case of Thurukanni Pompiah (supra), 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 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:-
“10. Under clause (1) of Section 32 of the Indian 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
20.4.In the case of Uka Ram (supra), 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:
“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 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 admissibility and reliability could be usefully summed up as under:-
i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.
ii) 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.
iii) 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.
iv) When the
v)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
vi)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.
vii)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.
viii)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.
22.Applying the relevant principles to the facts of the present case, we have not an iota of doubt that the appellants have rightly been convicted on the basis of the statements of the victim Sher Singh, as recorded by
23.As noticed, it is clearly established on record that the victim Sher Singh, when found engulfed in fire, information was received in PCR and its Van reached the place of incident within minutes of incident; and the victim was immediately placed in the Van and was taken to Safdarjung Hospital. Though it appears from the testimony of
23.1.The significant feature of the case is that in the said MLC report (Ex.
came to be mentioned within brackets and was written in Hindi (being vernacular expression), although other contents of this document were filled
up in English.
23.2.It is also noteworthy that in Ex.
disoriented. In yet other words, he was neither insensate nor confused. Such significant noting about the mental faculties of the victim at the time of giving out the narratives to the doctor makes it clear that even when he was suffering from the agony of 100% deep burns, he was not in an unfit state of mind; and there appears no reason to disbelieve his first version as recorded in Ex. PW- 8/A.
addresses of the appellants while stating their respective roles in the incident in question. At the time of making the said statement, the victim Sher Singh was suffering from 100% deep burn injuries and was in a critical condition. In the given state, elaboration on the motive etc., was least expected from him.
The two statements Ex.
25.For what has been observed hereinabove, it is but clear that in his first version before the doctor, the victim Sher Singh named Purshottam and Suresh as his assailants and particulars of these persons were fully described by him in the statement made to
appear to be voluntary and were given in a fit state of mind. In the given set of circumstances, the statements so made by the victim could be acted upon as dying declarations. However, before reaching to the conclusion on the basis of these statements, it would be appropriate to deal with the criticism offered on behalf of the appellants.
25.1.It has been contended that the statement Ex.
attest the statement of Sher Singh as recorded by SI Rajesh Kumar, the doctor pointed out that the facts had already been mentioned in the MLC and there was no need to attest the statement. Taking an overall view of the matter, we find no reason that the statement Ex.
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’s case and reiterated in Bhagwan’s case (supra), 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 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. 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 defect4 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.
25.3.The suggestions have also been made that the victim was in 100% burnt condition and therefore, the alleged statements Ex.
(supra), this Court has pointed out that in the case of burns, the skin of a small
4 As had been in Dalip Singh’s case (supra).
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
25.4.Another contention urged on behalf of the appellants has been that the victim, as per his statement, had allegedly consumed half bottle of liquor before being put on fire but, as per
25.5.For what has been discussed hereinabove, we are clearly of the view that the two statements Ex.
26.A great deal of emphasis has been made in this case with reference to the testimony of
26.1.Noticeable it is that this witness
26.2.In the same sequence, the contentions urged on behalf of the appellants about want of examination of other persons named by
the statement made by
26.3.As noticed, the appellant No. 1 attempted to suggest in his statement under Section 313 CrPC that he was a politically known person and was falsely implicated by certain persons ‘adversely interested’ against him. No such evidence is placed on record as to who were such persons and as to why they would be falsely implicating him in a murder case. Thus, the incomplete and uncertain defence theory has rightly been rejected and we have no hesitation in endorsing the findings recorded in the impugned judgments in that regard.
27.Although we have found that the two statements made by the victim and recorded in Ex.
27.1.It has been argued that the prosecution has not been able to establish the identity of assailants in this crime. The submission has no substance when the particulars as occurring in the two statements Ex.
27.2.The submission that prosecution has not been able to establish the motive for crime is also of no effect because, in the first place, in a death case, the motive remains essentially known to the deceased and to the offender; and a prosecution case cannot fail only for want of proof of motive. This apart, in the present case, the indications of an existing dispute of the deceased with appellant No. 1 do appear in the testimony of the brother of the deceased, PW- 1 Raju. It is also noticed that the deceased and the accused persons were the residents of the same locality.
27.3.The contention that only Part I of the PCR is proved and not the other parts is also not correct. It is noticed from the record that
clearly show that not only the initial information was recorded about the victim being on fire but further information were recorded from time to time during the course of transporting and admitting the victim to hospital, where not only his address came to be mentioned but the names of the assailants also surfaced. The said document having been produced before the Court and its copy having been taken on record, with
27.4.A substantial deal of argument had been with reference to the statement of
27.5.Another contention urged on behalf of the appellants about converting the present case to that under Section 304 Part II for the offence of culpable homicide not amounting to murder has only been noted to be rejected. The act of pouring kerosene over a person and then putting him on fire by lighting a match has all the ingredients of doing an act with the intention of causing death of a person in a gruesome manner. The conviction of the appellants for the offence of murder appears justified and we find no reason to convert the same into any offence of lesser degree. Therefore, the submissions made on behalf of the appellants with reference to the decisions in Sharad Birdhi Chand Sarda
and Kalabai (supra) also deserve to be, and are, rejected.
27.6.Another suggestion on behalf of the appellant No. 1 that in any case, he has not been assigned the role of pouring the kerosene or lighting the fire also deserves to be rejected for the facts and circumstances noticed above and particularly when it has come on record that he was with the appellant No. 2 when the victim was threatened and was put on fire. The conviction of this appellant under Section 302/34 IPC remains unexceptionable. For what has been noticed hereinabove, the suggestion of no likelihood of appellant No. 1 throwing kerosene on the head of the deceased deserves to be rejected without much dilation.
28.For what has been discussed hereinabove, we are clearly of the view that the appellants have rightly been held guilty of causing death of Sher Singh
by putting him on fire and have also rightly been convicted for the offence under Section 302/34 IPC. No case for interference is made out.
29.Accordingly, and in view of the above, these appeals fail and are, therefore, dismissed.
Date: 07th January, 2020