[2012] 5 S.C.R. 37

BHAJJU @ KARAN SINGH

STATE OF M.P. (Criminal Appeal No. 301 of 2008)

MARCH 15, 2012

[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

Penal Code, 1860 - s.302 - Murder - Prosecution case that appellant poured kerosene oil on his wife, and set her ablaze with the help of a match stick - Appellant's wife taken C to the hospital where she subsequently died - Dying declaration recorded by Executive Magistrate-cum-Tehsildar

- Conviction of appellant by Courts below - Challenge to - Held: The dying declaration had been recorded by the competent officer of the executive, duly attested by the doctor D and the cross-examination of both these witnesses did not bring out any legal or substantial infirmity in the dying declaration, which could render it inadmissible or unreliable

- The statements of the doctor, PW9 and the Investigating Officer, PW10 and the Exhibits including the site plan, post- E mortem report etc., which are admissible pieces of substantive evidence, fully corroborated the dying declaration - If 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 F 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 bum injury, than the upper part - Conviction G accordingly confirmed.

Evidence Act, 1872 - s. 32 - Dying declaration - Appreciation of - Held: If the dying declaration has been recorded in accordance with Jaw, is .e/iable and gives a cogent 37 H

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 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 /aches 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 - If it falls in that class of cases, the dying declaration cannot form the sole basis of conviction.

Evidence Act, 1872 - s. 32 - Dying declaration - Appreciation of - Distinction between principles governing evaluation of a dying declaration under the English law and t11e Indian law - Held: 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 in the actual danger of death and when 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.

lMtness - Hostile witness - Admissibility of evidence of such witness - Held: 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 - But the court will always have to take a very cautious decision while referring to the statements of such witnesses who tum hostile or go back from their earlier statements recorded, particularly,

BHAJJU @ KARAN SINGH v. STATE OF M.P. 39

under Section 164 Cr.P.C. - What value should be attached A 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.

The prosecution case was that appellant poured 8 kerosene oil on his wife when she was cleaning the kitchen, and set her ablaze with the help of a match stick.

The appellant's wife was admitted in the hospital with 60 % burn injuries where she subsequently died. Her dying declaration was recorded by the Executive Magistrate- C cum-Tehsildar (PWS). The trial court disbelieved the defence plea of the appellant-accused that his wife had accidentally caught fire and got burnt while she was preparing food, and convicted him under Section 302 IPC and awarded him rigorous imprisonment for life. The High Court affirmed the conviction and sentence.

In the instant appeal, the primary contention raised on behalf of the accused was that the dying declaration, Ex. P4 being the sole piece of evidence, could not be relied upon; that there was no evidence corroborating E Ex.P4 and as such, the concurrent judgments of conviction were unsustainable.

Dismissing the appeal, the Court

HELD: 1. It is a matter of common prudence that a F 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 G hospital. Thus, they were the first persons whom the deceased met and as per the case of the prosecution, she had told them that the appellant had poured kerosene on her and set her ablaze. At the hospital, she was examined by Dr. PW9, who in his statement had H

A recorded that he had examined the deceased and she had as many as 10 injuries on her body and that some wounds on her body 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 B 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 c 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 deceased was wearing was smelling of kerosene oil. Thus, the D doctor is a witness to the dying declaration as well as to the condition and cause of death of the deceased. [Para

4) [53-D-H; 54-A-B]

2. PW5 is the Tehsildar who recorded the dying declaration of the deceased. When he appeared as a E 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 handwriting of what was stated by deceased and that he added or subtracted nothing from what she had stated.

F 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 G out any legal or substantial infirmity in the dying declaration of the deceased, which could render it inadmissible or unreliable. [Para 5) (54-B-D]

3. The post mortem of the body of the deceased was H performed by Dr. PW10, and his report is Exhibit P15

BHAJJU @ KARAN SINGH v. STATE OF M.P. 41

which confirms the burn injuries and the death being due A 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 PS from the site and she also suffered injuries which B were bleeding when she was examined by 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 c 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. [Para 6] [54-F-H; 55-A] 0

4. The incident in question is stated to have occurred on 12th September, 1995. Exhibit 01 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, it was E stated that at the time of swearing-in of the affidavit in the Medical College, the deceased was more or less healthy in all respects. If one has to even remotely believe that Exhibit 01 could be executed by her, then on the photograph annexed to it, not even a single burn injury F 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, G appears to have been created and is, thus, incapable of being relied upon by the Court. (Paras 2, 3, 6] [51-F; 53-

A-B; 55-A-C]

5. Besides recording of Exhibit P4, two other H

statements of the deceased were also recorded. Both of them were recorded by the Police Officers on different occasions. Firstly, 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. [Para 7] [55-0-F]

6. 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. [Para 9] [55-G-H; 56-A-C]

7 .1. 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

BHAJJU @ KARAN SINGH v. STATE OF M.P. 43

occurrence of the events, then the dying declaration can A 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 is an exception to the general rule against the admissibility of B 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 C 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 D 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 E 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 F by other evidence. [Para 1 OJ [56-D-H; 57-A-B]

7.2. 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, G 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 H

A 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 B 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) [Para 11] [57-B-E] c 7.3. 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 D 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 E 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, F 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]

[57-E-H; 58-A] G 7.4. 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 H investigation. It must allure the satisfaction of the Court

BHAJJU @ KARAN SINGH v. STATE OF M.P. 45

that reliance ought to be placed thereon rather than A distrust. [Para 13] [58-B-C]

7.5. 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 8 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, the dying declaration cannot form the sole basis C of conviction. However, that is not the case here. [Para

17] [61-E-F]

Ravikumar @ Kutti Ravi v. State of Tamil Nadu (2006) 9 SCC 240; Vikas and Others v. State of Maharashtra, (2008) 2 SCC 516 : 2008 (1) SCR 933; Kishan Lal v. State of D Rajasthan (2000) 1 SCC 310 : 1999 (1) Suppl. SCR 517; Laxmi (Smt.) v. Om Prakash & Ors. (2001) 6 SCC 118 : 2001

(3) SCR 777; Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 : 2001 (5) Suppl. SCR 503; Jaishree Anant Khandekar

v. State of Maharashtra (2009) 11 SCC 647 : 2009 (4 ) SCR E 992 and Muthu Kutty and Another v. State by Inspector of Police, T.N. (2005) 9 sec 113 : 2004 (6) Suppl. SCR 222 - relied on.

Munnu Raja and Another v. The State of Madhya F Pradesh - (1976) 3 SCC 104: 1976 (2) SCR 764 - referred to.

8.1. 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 G case of the prosecution has no legs to stand, much less that they have proved their case beyond any reasonable doubt. This submission 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 H

A witnesses to or were even remotely involved in the recording of the three different dying declarations, i, e.

Ex.P4, P16 and p18. None of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have B 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. The dying declaration can be acted upon without corroboration and can be made the basis c of conviction. [Para 18] [61-G-H; 62-A-B, C-D]

8.2. 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 D 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- E 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 examinationin-chief as well as the cross-examination of the said F 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 G 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 H person, who calls a witness, to put any question to him

BHAJJU@ KARAN SINGH v. STATE OF M.P. 47

which might be put in cross-examination by the adverse A 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 B 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. [Para 19) [63-A-G] C

8.3. 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 D 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 E 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 the appellant had poured kerosene on her and put her on fire.

To the extent that their earlier version is consistent with F 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 G 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 H

A 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. [Para 20] (64-B-G]

8.4. PW4, brother of the deceased, is another witness

8 who has made an attempt to help the accused. He stated that deceased had died and appellant was his brotherin-law and she got burnt while cooking food and that deceased had told him that appellant used to keep her nicely. Firstly, it must be noticed that all these witnesses who had turned hostile or attempted to support the C 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 D 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 E 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 deceased had caught fire while cooking. (Para 21] (64-G-H; 65-A-C]

F 8.5. These are matters of serious consequences and render the statement of all these three witnesses unreliable and undependable. Thus, these statements this Court would refer and rely (examination-in-chief) only to the extent they support the case of the prosecution and G are duly corroborated, not only by other witnesses but even by the dying declaration and the medical evidence. (Para 22] (65-D-E]

Kofi Lakhmanbhai Chanabhai v. State of Gujarat (1999) a sec 624; Prithi v. State of Haryana - (201 O) a sec 536 : H 2010 (9) SCR 33; Sidhartha Vashisht@ Manu Sharma v.

BHAJJU @ KARAN SINGH v. STATE OF M.P. 49

State (NCT of Delhi) - (2010) 6 SCC 1 : 2010 (4) SCR 103; A Ramkrushna v. State of Maharashtra -(2007) 13 SCC 525 : 2007 (5) SCR 818relied on.

9. Coming to the credibility of the defence witnesses, Ex.01 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 appellant of pouring kerosene oil on her and C 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, there is no reason why the deceased should have stated before the police and the Tehsildar what she did. The two defence witnesses, namely DW1 and 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 G the Court to rely on the statement of this witness. A Notary Public is expected to maintain better professional standards rather than act at the behest of a particular

party.

DW2, is the person who had typed the affidavit, H

A Ex.01. He knew the deceased. According to this witness, the contents were typed on the basis of what deceased had stated. There are contradictions between the statements of DW1 and DW2. It cannot be said that these witnesses are reliable and their statements are B trustworthy. [Para 23] [65-E-H; 66-A-D]

Case Law Reference:

(2006) 9 sec 240 relied on Para 14

2008 (1) SCR 933 relied on Para 14

1999 (1) Suppl. SCR 517 relied on Para 14

2001 (3) SCR 777 relied on Para 14

2001 (5) Suppl. SCR 503 relied on Para 14 D

2009 (4) SCR 992 relied on Para 15

2004 (6) Suppl. SCR 222 relied on Para 16

1976 (2) SCR 764 referred to Para 18

(1999) a sec 624 relied on Para 19

2010 (9) SCR 33 relied on Para 19

2010 (4) SCR 103 relied on Para 19

2007 (5) SCR 818 relied on Para 19

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 301 of 2008.

From the Judgment & Order dated 7.8.2007 of the High G Court of Madhya Pradesh at Jabalpur in CRLA No. 634 of 1998.

S.K. Choudhary, Daya Krishan Sharma for the Appellant.

Vibha Datta Makhija for the Respondent.

H The Judgment of the Court was delivered by

BHAJJU@ KARAN SINGH v. STATE OF M.P. 51

SWAT~NTER KUMAR, J. 1. The present appeal is A 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 C 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 D 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 E 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 F (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 G 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.

A 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 8 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 C 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

0 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 E 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 F 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 G 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 Lakhan pal (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 H was cooking food. They have denied any involvement of the

BHAJJU @ KARAN SINGH v. STATE OF M.P. 53

[SWATANTER KUMAR, J.]

appellant/accused as well as the fact that the deceased had A told them that the appellant/accused had burnt her by pouring kerosene oil on her. Furthermore, Exhibit 01 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 B 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 c 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 01, it will be appropriate to examine the case of the prosecution. The FIR, Ext P-17 itself was D 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 E 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 F 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 G 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 H

A 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 B smelling of kerosene oil. Thus, the doctor is a witness to the dying declaration as well as to the con<llition 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 C 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 D 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 crossexamination of both these witnesses did not bring out any legal or substantial infirmity in the dying declaration of the deceased, E 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 F 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 G 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 H

BHAJJU @ KARAN SINGH v. STATE OF M.P. 55

[SWATANTER KUMAR, J.]

amount will reach the lower parts of the body and clothes. A 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 01 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 B 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 c 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 D 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 E 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 ai)pellant/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 H

A 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 s 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 c 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 D 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 E 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 F 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 G 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 H person deposing is induced by the most powerful

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[SWATANTER KUMAR, J.]

considerations to speak the truth. Once the Court is satisfied A 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 ofconviction 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 C 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 D 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 E 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 F 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 G 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, H

A 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 C 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 @ D Kutti Ravi v. State of Tamil Nadu (2006) 9 SCC 240, Vikas and Others v. State of Maharashtra (2008) 2 SCC 516, Kishan Lal v. State of Rajasthan (2000) 1 SCC 310, Laxmi (Smt.) v.

Om Prakash & Ors. (2001) 6 SCC 118, Panchdeo Singh v.

State of Bihar (2002) 1 SCC 577.

15. In the case of Jaishree Anant Khandekar v. State of Maharashtra (2009) 11 SCC 647, discussing the contours of the American Law in relation to the 'dying declaration' and its applicability to the Indian law, this Court held as under: -

"24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eyewitness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice.

25. American law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the

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[SWATANTER KUMAR, J.]

necessity principle. On certainty of death, the same strict A 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 B 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 0f Muthu Kutty and Another v. State by Inspector of Police, T.N., (2005) 9 SCC 113 where the Court, C 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 D 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.

E 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 F 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 G declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474: 1992 sec (Cri) 403: AIR 1992 SC 1817] (SCC pp. 480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that H

dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of MP.)

(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

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[SWATANTER KUMAR, J.]

declaration look up to the medical opinion. But where the A 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 C 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 Mohan/al Gangaram Gehani v. State of Maharashtra.)" D

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 E 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 F 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 H

A 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 B 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 c 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 D 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:- E "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 F 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 G 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 1-1

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[SWATANTER KUMAR, J.]

appellanUaccused. Normally, when a witness deposes contrary A 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 B witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine 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 c 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 0 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 E 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.

F 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 crossexamined can also be relied upon by the prosecution. These G

principles have been encompassed in the judgments of this Court in the cases :

Kofi Lakhmanbhai Chanabhai v. State of Gujarat

(1999) a sec 624 H

A b.

Prithi v. State of Haryana (2010) 8 SCC 536

Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (201 O) 6 sec 1

Ramkrushna v. State of Maharashtra (2007) 13 s sec 525

20. PW2 and PW3 were the persons who had met the deceased first after she was put on fire. They were not the eyewitnesses to the occurrence. It is an admitted case that they c 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

0 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 E 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 F 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 G 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 H got burnt while cooking food and that Medabai had told him that

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[SWATANTER KUMAR, J.]

Bhajju used to keep her nicely. Firstly, we must notice that all A 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 B justice. They appear to have lied before this Court, more out of sympathy for the appellanUaccused. 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 c has already died and that he would not like to lose his brotherin-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 D 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.01 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 F 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 G 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 H

A 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 B 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 crossexamination that he knew that the affidavit was being sworn for belying a statement made earlier, but he made no enquiries c 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.01. He knew Medabai. According to this witness, the contents were

0 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 E 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.

F B.B.B Appeal dismissed.