Bhajju @ Karan Singh Vs. State of M.P.
EmailEvidence Act, 1872
Section 32 Dying declaration Murder by pouring kerosene oil and setting deceased ablaze Dying declaration recorded by Magistrate-cum-tehsildar Duly attested by doctors – Whether dying declaration was the only piece of evidence against appellant and conviction could be based on it. Held, the occurrence is undisputed. Statements of doctor, I.O., site plan and post-mortem report fully supported the dying declaration. Had it been a case of suicide, there could not have been bleeding wounds on deceaseds body, broken bangles at the site, and wounds on hands and arms, evidencing struggle before death. This is further strengthened by the fact that lower part of her body was more burnt than the upper part. Since dying declaration was recorded in accordance with law and was reliable and cogent, conviction can be based on it.
Section 32(1) Dying declaration Meaning and its admissibility explained.
Section 32(1) Dying declaration Evaluation of Principles under English and Indian Law. Distinction between the two, explained.
Section 32(1) Dying declaration Murder – Death by pouring kerosene oil and setting the deceased ablaze PWs 2 & 3, who brought deceased to hospital and PW4, brother of deceased turning hostile Whether prosecutions case got vitiated. Held, no witness to dying declaration turned hostile. PWs 2 to 4 were not involved in recording of dying declaration. Thus, prosecutions case was not vitiated.
Hostile witnesses – Effect of . Held, when a person turns against the stand of prosecution and his own statement made under Section 161 Cr.P.C., with permission of court person is declared hostile. Evidence of hostile witness can be relied upon to the extent it supports prosecution’s case and corroborates other reliable evidence.
Hostile witnesses – Murder case – Consistent statement before police and court by PWs. 2 and 3 that they brought deceased to hospital – Occurrence not witnessed by them – Their evidence in court that deceased told them that burn injuries were accidental, contrary to their statement before investigating agency – Whether entire statement liable to be rejected. Held, in such cases, court must cautiously evaluate as to how much reliance it should place upon such statement.
Murder – Exhibit D1, a typed affidavit by deceased stating that she caught fire accidently and a strong defence available to appellant – Credibility – Held, document is created by defence to escape punishment. In her dying declaration before tehsildar and twice before police deceased narrated how her husband poured kerosene oil on her and set her on fire. There was no necessity to get the Exhibit D1 typed as the same thing she could have told to police and tehsildar. Notary public DW1, not disclosing where when and at whose instance affidavit was typed – No explanation why photo of deceased affixed on affidavit – DW1 knew that the affidavit was being sworn for belying statement made earlier, but no enquiry made from deceased – Statements of DW2 who typed the affidavit and DW1, contrary and thus not trust worthy. Hence conviction awarded under Section 302 IPC by courts below not interfered with.
If the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. (Para 10)
The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction. (Para 12)
Under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in his mouth). (Para 11)
None of the witnesses, i.e. PW2 to PW4, were witnesses to or were even remotely involved in the recording of the three different dying declarations, i.e. Ex.P4, P16 and P18. There is no witness to the dying declaration who has turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgment relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction. (Para 18)
When a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. (Para 19)
Contrary to the statement of PWs. 2 & 3 made to the Investigating Agency, in the Court, they made a statement that the deceased had told them that she had caught fire by chimney and her burn injuries were accidental. This was totally contrary to their version given to the police where they had stated that she had told them that Bhajju had poured kerosene on her and put her on fire. PW4, brother of the deceased, is another witness who has made an attempt to help the accused. He stated that Medabai had died and Bhajju was his brother-in-law and she got burnt while cooking food and that Medabai had told him that Bhajju used to keep her nicely. All these witnesses who had turned hostile or attempted to support the accused are the neighbours or close relations of the deceased and also that of the appellant/accused. Their somersault appears to be founded on the consideration of saving a relation from receiving punishment at the hands of justice. They appear to have lied before this Court, more out of sympathy for the appellant/accused. The very opening part of the statement of PW4, where he says ‘Medabai mari ja chuki hai’ and ‘Medabai ko khana pakate samay aag lagi thi’ is sufficient indicator of his sympathy and the fact that his sister has already died and that he would not like to lose his brother-in-law and secondly, that it is also not clear from his statement as to who told him that Medabai had caught fire while cooking. The court will always have to take a very cautious decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statements recorded, particularly, under Section 164 of the Cr.P.C. What value should be attached and how much reliance can be placed on such statement is a matter to be examined by the Courts with reference to the facts of a given case. (Paras 20 & 21)
Ex.D1 is a document created by the defence just to escape the punishment under law. If that is what the deceased wanted to say, she had a number of opportunities to say so, freely and voluntarily. However, in presence of the Tehsildar and twice in presence of the Police, she made the same statement implicating her husband Bhajju of pouring kerosene oil on her and putting her on fire. Where was the necessity of typing an affidavit and getting the same thumb-marked by the deceased when she was suffering 60% burn injuries. If the version given in this affidavit was true, we see no reason why the deceased should have stated before the police and the Tehsildar what she did. DW1, the Notary Public, does not state as to where, when and at whose instance the affidavit was typed. This witness has completely failed to explain as to why the photograph of the deceased was fixed on the affidavit. If it was the requirement of law, then why the photograph of a date prior to the date on which the affidavit was sworn and attested, was affixed on the affidavit. This witness also admitted in his cross-examination that he knew that the affidavit was being sworn for belying a statement made earlier, but he made no enquiries from the deceased or from any other proper quarters to find out what was the previous statement of the deceased. It will not be safe for the Court to rely on the statement of this witness. DW2, is the person who had typed the affidavit, Ex.D1. He knew Medabai. According to this witness, the contents were typed on the basis of what Medabai had stated. There are contradictions between the statements of DW1 and DW2. We do not think that these witnesses are reliable and their statements are trustworthy. (Para 23)
2. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [JT 2010 (4) SC 107] (Para 19)
3. Jaishree Anant Khandekar v. State of Maharashtra [JT 2009 (4) SC 198] (Para 15)
4. Vikas and Others v. State of Maharashtra [JT 2008 (1) SC 541] (Para 14)
5. Ramkrushna v. State of Maharashtra [JT 2007 (6) SC 637] (Para 19)
6. Ravikumar @ Kutti Ravi v. State of Tamil Nadu [JT 2006 (2) SC 555] (Para 14)
7. Muthu Kutty and Another v. State by Inspector of Police, T.N. [JT 2004 (10) SC 538] (Para 16)
8. Panchdeo Singh v. State of Bihar [JT 2001 (10) SC 322] (Para 14)
9. Laxmi (Smt.) v. Om Prakash & Ors. [JT 2001 (5) SC 280] (Para 14)
10. Koli Lakhmanbhai Chanabhai v. State of Gujarat [JT 1999 (9) SC 133] (Para 19)
11.Kishan Lal v. State of Rajasthan [JT 1999 (6) SC 41] (Para 14)
12.Munnu Raja and Another v. The State of Madhya Pradesh [1976 (3) SCC 104] (Para 18)
1. The present appeal is directed against the judgment of conviction and order of sentence dated 9th February, 1998 passed by the Court of Sessions Judge, Tikamgarh and affirmed by the High Court of Madhya Pradesh, Bench at Jabalpur, vide its judgment dated 7th August, 2007.
2. The facts giving rise to the present appeal fall within a very narrow compass and are being stated at the very outset. Bhajju @ Karan Singh, the appellant herein, was married to Medabai, the deceased, and was living in Niwadi, District Tikamgarh, Madhya Pradesh. Bhajju had doubts about the chastity of his wife and often used to accuse her of having illicit relations with one Ramdas. According to the appellant, she also had a lose temper and on one occasion, she had left their one month old child on a platform and had gone to her parental house along with her son, Harendra, aged about four years. It is stated that he had even reported this incident at the Police Station, Niwadi, on 2nd September, 1995. On the other hand, the prosecution has alleged that besides accusing the deceased of having illicit relations, he used to ill-treat her and even question the paternity of the children born out of the wedlock. In fact, on the evening before the incident in question, he had beaten his wife with slipper. On 12th September, 1995, at about 7.00 a.m., when she was cleaning the kitchen, Bhajju poured kerosene oil on her and set her ablaze with the help of a match stick. She raised hue and cry. Ayub (PW3) and Pratap (PW2) from the neighbourhood reached the spot. They took her to the hospital in the taxi where she was examined by Dr. Suresh Sharma (PW9), vide report Exhibit 14. Dehati Nalishi, Exhibit P16 was recorded on the basis of which FIR Exhibit P14 was recorded and a case was registered under Section 307 of the Indian Penal Code, 1860 (IPC). She was admitted to the hospital and was found to be having 60 per cent burn injuries and her blouse was smelling of kerosene oil at that time. Her dying declaration was recorded by the Executive Magistrate-cum-Tehsildar at about 9.10 a.m. vide Exhibit P4. She succumbed to the burn injuries and died on 17th October, 1995. A case under Section 302 IPC was registered against the appellant-accused. After registration of the case, the Investigating Officer prepared the inquest report. Post mortem was performed and the cause of death was opined to be extensive burn injuries. During the investigation, statements of other witnesses including Pratap, Ayub and Lakhanpal (PW-1) were recorded and the site plan was prepared. Certain items were recovered from the site like broken bangles, match box, half burnt match sticks, clothes of the deceased, kerosene oil container, etc. Based on the ocular and documentary evidence, the Investigating Officer filed the charge-sheet before the court of competent jurisdiction. The appellant-accused was committed to the Court of Sessions where he was tried. The appellant put up the defence that because of her illicit relationship with Ramdas, their neighbor, and her arrogant attitude, the deceased was a difficult person to live with. However, on 12.9.1995, she accidentally caught fire and got burnt while she was preparing the food. As a result, she died and the accused was innocent. Disbelieving the defence of the accused and forming an opinion that the prosecution has been able to prove its case beyond reasonable doubt, the learned Sessions Judge convicted the accused for the offence under Section 302 IPC and awarded him rigorous imprisonment for life vide his judgment dated 9th February, 1998. This was challenged before the High Court. The High Court affirmed the judgment of conviction and order of sentence passed by the learned trial court and dismissed the appeal of the appellant/accused, giving rise to the present appeal.
3. Not only the facts of this case but also the legal issues involved herein fall in a narrow compass. It is for the reason that the incident in question is not disputed. Pratab (PW-2), Ayub (PW-3) and Lakhanpal (PW-1) , who were later declared hostile by the prosecution and subjected to cross-examination had stated that the deceased had got burnt accidentally while she was cooking food. They have denied any involvement of the appellant/accused as well as the fact that the deceased had told them that the appellant/accused had burnt her by pouring kerosene oil on her. Furthermore, Exhibit D1 is the affidavit stated to have been sworn by the deceased on 30th September, 1995 while she died on 17th October, 1995. In this affidavit, which is the backbone of the defence, a similar stand has been taken by the deceased, Medabai. In this affidavit, it was stated that at the time of swearing-in of the affidavit in the Medical College, she was more or less healthy in all respects. The appellant/accused in his statement under Section 313 of the Criminal Procedure Code, 1973 (for short `Cr.P.C.’) has given the usual reply that he knows nothing and that he was not present at his residence at the time of the occurrence.
4. Before we comment upon this defence and the evidentiary value of Exhibit D1, it will be appropriate to examine the case of the prosecution. The FIR, Ext P-17 itself was registered on the basis of a statement made by the deceased referred as Dehati Nalishi, Exhibit P-16, and a case was registered under Section 307 IPC. It is a matter of common prudence that a person who had been burnt and was having 60 per cent burn injuries would not be able to go to the hospital on her own and somebody must have taken her to the hospital. According to the prosecution, PW3 and PW2, had reached the spot and had taken the deceased to the hospital. Thus, they were the first persons whom the deceased met and as per the case of the prosecution, she had told them that Bhajju had poured kerosene on her and set her ablaze. At the hospital, she was examined by Dr. Suresh Sharma, PW9, who in his statement had recorded that he has examined the deceased and she had as many as 10 injuries on her body and that some wounds on her body which were bleeding. According to the said doctor, these injuries could have been caused by a Kada or some sharp object. The burn injuries were found to be 60 per cent. The person was burnt with kerosene oil. Lower parts of her body were burnt. Her left hand was burnt, right hand and arm were also burnt. He further stated that the statement of the deceased was recorded by the Tehsildar, on which she had put her thumb impression and that the dying declaration also had been written by the doctor declaring that she was in full senses to make the statement. In his cross-examination, this witness clearly stated that the blouse that Medabai was wearing was smelling of kerosene oil. Thus, the doctor is a witness to the dying declaration as well as to the condition and cause of death of the deceased.
5. PW5, Vijay Kumar is the Tehsildar who recorded the dying declaration of the deceased. When he appeared as a witness, he admitted to having recorded the dying declaration of the deceased, which bore his signatures at A to A of Exhibit P4 and recording was in his hand-writing of what was stated by Medabai and that he added or subtracted nothing from what she had stated. Nothing material could be brought out during the lengthy cross-examination of this witness. Thus, the dying declaration had been recorded by the competent officer of the executive, duly attested by the doctor and the cross-examination of both these witnesses did not bring out any legal or substantial infirmity in the dying declaration of the deceased, which could render it inadmissible or unreliable.
6. The post mortem of the body of the deceased was performed by Dr. S.K. Khare, PW10, and his report is Exhibit P15 which confirms the burn injuries and the death being due to these injuries. There is evidence which clearly shows that she tried to fight before she succumbed to the burn assault by the appellant/accused. In that process, her bangles were broken which were recovered vide Exhibit P6 from the site and she also suffered injuries which, as already noticed, were bleeding when she was examined by Dr. Suresh Sharma, PW9. Other recoveries were also made from the site, which evidences that the occurrence took place in the manner as stated by the deceased. It is a common behaviour that if a person is pouring kerosene on herself then the maximum kerosene will be poured on the head, face and upper parts of the body and lesser amount will reach the lower parts of the body and clothes. Contrary to this, the lower half of the body of the deceased had received more burn injuries than her upper part and, in fact, if one has to even remotely believe that Exhibit D1 could be executed by her, then on the photograph annexed to it, not even a single burn injury on her face and upper part of the body is visible. If this photograph is of a date prior to the incident then there was no occasion for the appellant/accused or the Oath Commissioner attesting the affidavit to affix this photograph on this affidavit. This document, thus, appears to have been created and is, thus, incapable of being relied upon by the Court.
7. Besides recording of Exhibit P4, two other statements of the deceased were also recorded. Both of them were recorded by the Police Officers on different occasions. Firstly, as already noted, Exhibit P16 was the statement recorded immediately after the occurrence on 12th September, 1995, on the basis of which FIR, Ext. P-17, was registered and thereafter Exhibit P18, the statement of the deceased under Section 161 of the Cr. P.C. was recorded, that too, on 12th September, 1995. Exhibit P16 and P18 may, by themselves, not carry much evidentiary value but they definitely have the same version as was recorded by PW11, the Tehsildar in Exhibit P4, the dying declaration, which is not only admissible in evidence but is reliable, coherent and in conformity with the requirements of law.
8. The primary contention raised on behalf of the accused is that the dying declaration, Ex. P4 being the sole piece of evidence, cannot be relied upon by the courts. There is no evidence corroborating Ex.P4. As such, the concurrent judgments of conviction are unsustainable.
9. Firstly, we must notice that this is not a case where the dying declaration, Ex.P4, is the only evidence against the appellant/accused or that whatever is stated in it, is not partially or otherwise supported by other evidence given the fact that there is no dispute to the occurrence in question, the statements of the doctor, PW9 and the Investigating Officer, PW10 and the Exhibits including the site plan, post-mortem report etc., which are admissible pieces of substantive evidence, fully corroborate the dying declaration. If the deceased had poured kerosene oil on herself, then in the normal course; a) there could not be bleeding wounds on her body, b) broken bangles could not have been recovered from the site, in question and c) she could not have suffered injuries on her hands and arms. All these factors show struggle before death and this indication is further strengthened by the fact that lower part of her body had suffered greater burn injury, than the upper part. Had that been the case, then alone the case of the defence could be considered by this Court, even as a remote probability. That certainly is not the situation in the present case.
10. The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Indian Evidence Act, 1872 (for short `the Act’) is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a `dying declaration’. The `dying declaration’ essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man’s mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence.
11. There is a clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law. Under the English law, credence and relevancy of a dying declaration is only when the person making such a statement is in hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in his mouth).
12. The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction.
13. Another consideration that may weigh with the Court, of course with reference to the facts of a given case, is whether the dying declaration has been able to bring a confidence thereupon or not, is it trust-worthy or is merely an attempt to cover up the latches of investigation. It must allure the satisfaction of the Court that reliance ought to be placed thereon rather than distrust.
14. In regard to the above stated principles, we may refer to the judgments of this Court in the cases of Ravikumar @ Kutti Ravi v. State of Tamil Nadu [JT 2006 (2) SC 555 : 2006 (9) SCC 240], Vikas and Others v. State of Maharashtra [JT 2008 (1) SC 541 : 2008 (2) SCC 516], Kishan Lal v. State of Rajasthan [JT 1999 (6) SC 41 : 2000 (1) SCC 310], Laxmi (Smt.) v. Om Prakash & Ors. [JT 2001 (5) SC 280 : 2001 (6) SCC 118], Panchdeo Singh v. State of Bihar [JT 2001 (10) SC 322 : 2002 (1) SCC 577].
15. In the case of Jaishree Anant Khandekar v. State of Maharashtra [JT 2009 (4) SC 198 : 2009 (11) SCC 647], discussing the contours of the American Law in relation to the `dying declaration’ and its applicability to the Indian law, this Court held as under:
’24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one’s life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eyewitness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice.
25. American law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle. On certainty of death, the same strict test of English law has been applied in American jurisprudence. The test has been variously expressed as ‘no hope of recovery’, ‘a settled expectation of death’. The core concept is that the expectation of death must be absolute and not susceptible to doubts and there should be no chance of operation of worldly motives.’
16. It will also be of some help to refer to the judgment of this Court in the case of Muthu Kutty and Another v. State by Inspector of Police, T.N. [JT 2004 (10) SC 538 : 2005 (9) SCC 113] where the Court, in paragraph 15, held as under:
’15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [JT 1992 (4) SC 397]
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)’
17. Learned counsel for the parties have relied upon the judgments in the case of Ravikumar @ Kutti Ravi (supra), Kishan Lal (supra); Laxmi (Smt.) (supra),; Panchdeo Singh (supra). These judgments do not set any other principle than what we have already spelt above. The first attempt of the court has to be, to rely upon the dying declaration, whether corroborated or not, unless it suffers from certain infirmities, is not voluntary and has been produced to overcome the latches in the investigation of the case. There has to be a very serious doubt or infirmity in the dying declaration for the courts to not rely upon the same. Of course, if it falls in that class of cases, we have no doubt in our minds that the dying declaration cannot form the sole basis of conviction. However, that is not the case here.
18. Then, it was also vehemently argued that the two main witnesses PW2 and PW3 as well as the brother of the deceased PW4, had turned hostile and, therefore, the case of the prosecution has no legs to stand, much less that they have proved their case beyond any reasonable doubt. This submission looks to be attractive at the first glance but when examined in depth, is without any merit. Firstly, there is no witness to the dying declaration who has turned hostile. None of the witnesses, i.e. PW2 to PW4, were witnesses to or were even remotely involved in the recording of the three different dying declarations, i.e. Ex.P4, P16 and P18. Reliance by the learned counsel appearing for the appellant/accused upon the judgment of this Court in the case of Munnu Raja and Another v. The State of Madhya Pradesh [1976 (3) SCC 104] to contend that a dying declaration cannot be corroborated by the testimony of hostile witnesses is hardly of any help. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgment relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction. Paragraph 6 of the said judgment reads as under:
‘6……It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay). The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.’
19. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases:
a. Koli Lakhmanbhai Chanabhai v. State of Gujarat [JT 1999 (9) SC 133]
b. Prithi v. State of Haryana [JT 2010 (7) SC 567]
c. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [JT 2010 (7) SC 567]
d. Ramkrushna v. State of Maharashtra [JT 2007 (6) SC 637]
20. PW2 and PW3 were the persons who had met the deceased first after she was put on fire. They were not the eye-witnesses to the occurrence. It is an admitted case that they were the first persons to meet the deceased after she suffered the burn injuries and had taken her to the hospital. This was their consistent version when stated before the police and even before the court. Contrary to their statement made to the Investigating Agency, in the Court, they made a statement that the deceased had told them that she had caught fire by chimney and her burn injuries were accidental. This was totally contrary to their version given to the police where they had stated that she had told them that Bhajju had poured kerosene on her and put her on fire. To the extent that their earlier version is consistent with the story of the prosecution, it can safely be relied upon by the prosecution and court. The later part of their statement, in cross-examination done either by the accused or by the prosecution, would not be of any advantage to the case of the prosecution. However, the accused may refer thereto. But the court will always have to take a very cautious decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statements recorded, particularly, under Section 164 of the Cr.P.C. What value should be attached and how much reliance can be placed on such statement is a matter to be examined by the Courts with reference to the facts of a given case.
21. PW4, brother of the deceased, is another witness who has made an attempt to help the accused. He stated that Medabai had died and Bhajju was his brother-in-law and she got burnt while cooking food and that Medabai had told him that Bhajju used to keep her nicely. Firstly, we must notice that all these witnesses who had turned hostile or attempted to support the accused are the neighbours or close relations of the deceased and also that of the appellant/accused. Their somersault appears to be founded on the consideration of saving a relation from receiving punishment at the hands of justice. They appear to have lied before this Court, more out of sympathy for the appellant/accused. The very opening part of the statement of PW4, where he says ‘Medabai mari ja chuki hai’ and ‘Medabai ko khana pakate samay aag lagi thi’ is sufficient indicator of his sympathy and the fact that his sister has already died and that he would not like to lose his brother-in-law and secondly, that it is also not clear from his statement as to who told him that Medabai had caught fire while cooking.
22. These are matters of serious consequences and render the statement of all these three witnesses unreliable and undependable. Thus, these statements we would refer and rely (examination-in-chief) only to the extent they support the case of the prosecution and are duly corroborated, not only by other witnesses but even by the dying declaration and the medical evidence.
23. Coming to the credibility of the defence witnesses, we have already noticed that Ex.D1 is a document created by the defence just to escape the punishment under law. If that is what the deceased wanted to say, she had a number of opportunities to say so, freely and voluntarily. However, in presence of the Tehsildar and twice in presence of the Police, she made the same statement implicating her husband Bhajju of pouring kerosene oil on her and putting her on fire. Where was the necessity of typing an affidavit and getting the same thumb-marked by the deceased when she was suffering 60% burn injuries. If the version given in this affidavit was true, we see no reason why the deceased should have stated before the police and the Tehsildar what she did. The two defence witnesses, namely Prabhat Kumar Sharma, DW1 and Laxmi Prasad Yadav, DW2, were examined by the defence to prove its innocence. DW1, the Notary Public, does not state as to where, when and at whose instance the affidavit was typed. This witness has completely failed to explain as to why the photograph of the deceased was fixed on the affidavit. If it was the requirement of law, then why the photograph of a date prior to the date on which the affidavit was sworn and attested, was affixed on the affidavit. This witness also admitted in his cross-examination that he knew that the affidavit was being sworn for belying a statement made earlier, but he made no enquiries from the deceased or from any other proper quarters to find out what was the previous statement of the deceased. It will not be safe for the Court to rely on the statement of this witness. DW2, is the person who had typed the affidavit, Ex.D1. He knew Medabai. According to this witness, the contents were typed on the basis of what Medabai had stated. There are contradictions between the statements of DW1 and DW2. We do not think that these witnesses are reliable and their statements are trustworthy. We would expect a Notary Public to maintain better professional standards rather than act at the behest of a particular party.
24. For these reasons, we find no ground to interfere in the concurrent judgments of conviction and order of sentence. The appeal is without merit and is dismissed accordingly.
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