Joginder Singh vs State

Virender Singh, J.—Appellant- Joginder Singh (hereinafter to be referred to as 'accused') S/o Sh. Shiv Lal after having been convicted vide

impugned judgment dated 03.07.2009 of learned Additional Sessions Judge, Doda for the charge of Section 302 Ranbir Penal Code is before us

through Cr. Appeal No.40/2009. He has been sentenced to undergo rigorous imprisonment for life and also to pay fine to the tune of Rs.10,000/-.

However, the sentence slapped upon him is subject to confirmation of this Court. As such, Confirmation No.14/2009.

Mst. Goran Devi, mother of accused Joginder Singh, who was- also charged alongwith him for the offences punishable u/s 302/109/498-A

RPC stands acquitted by the trial Court. State has not preferred any appeal against the acquittal earned by her.

Facts of the case, in brief:

Babli Devi, wife of accused-Joginder Singh, is the deceased in this case, who after receiving burn injuries on the night intervening 26th/27th of

May, 2003 was got admitted in Govt. Hospital Doda upon an intimation sent to the police, the concerned police official through a docket

approached the doctor to know, whether injured Babli Devi was in a position to make the statement. She was found to be not in that position. On

27.05.2003 itself, she was referred to GMC Jammu. PW Tara Chand Head Constable, was deputed for recording her statement. On

30.05.2003, it was recorded after obtaining the certificate of the attending doctor and sent to the Police Station Doda on 03.06.2003, upon which

a formal F.I.R. No.77/2003 was initially registered u/s 307/109 RPC. The complete statement in vernacular (urdu) when translated into English

version, reads as under:-

Statement of Mst. Babli Devi w/o Joginder Singh caste Bhagat resident of Thathri at present Nagri Doda, age 26 years, occupation House wife

dated 30.05.2003

Stated that deponent is a resident of above mentioned address and is house wife by occupation. About four years ago, her parents got her married

to Joginder Singh S/o Shiv Lal R/o Thathri. She has a daughter aged 3 years approximately. 5/6 months after her marriage, her mother-in-law Mst.

Goran Devi started quarrelling with her on trifles and used to tell her husband that she is not performing her routine work and her husband also

used to pick up quarrel with her and also used to beat her quite often without any reason. This continued for about three years. On being fed up

with all this, she went to her maternal home and narrated the treatment meted out to her by her mother-in-law and the husband who used to beat

her, upon which she lodged a application in the Court of Chief Judicial Magistrate, Doda seeking justice to her and with the intervention of the

Court, her husband started living with her in a rented accommodation at Nagri Doda separately. Her husband started working as an employee in

one STD. The attitude of her husband to her remained good till her mother-in-law and relatives started coming there. The moment her mother-in-

law and relatives started visiting her place at Nagri Doda, the husband again started quarrelling and beating her. On 26th of May, 2003 she was in

her rented accommodation, her husband was in the STD and she prepared the meal and waiting for the arrival of her husband. At that time, her

daughter was sleeping. On his arrival at 10 pan., he started quarrelling with her and caught hold from her neck and started giving beatings to her.

He then poured kerosene oil upon her which was kept in a plastic gallon and set ablaze her person and clothes with a match stick. By the time she

raised an alarm, the fire had already engulfed her and she became unconscious. On regaining the conscious, she found herself to be admitted in

GMC Jammu. On being instigated by her mother-in-law, her husband has set her ablaze after pouring kerosene oil on her, as a result of which, her

face, throat, both upper limbs, chest, waist and legs bears the injury marks. At this time I am being hospitalized in GMC Jammu for treatment and

making the statement in full sense. This is the only statement she wants to give, the contents whereof are heard and admitted to be correct. Since

the finger tips of both hands of the deponent got burnt, she is unable to put his signatures. Only thumb of right hand is left unburnt, so she has put

her thumb impression on the statement.

Thumb impression of

Sd/

Right hand of Mst. Babli Devi HC Tara Chand P/S Doda

Witness

Gori Lal

Aforesaid PW Tara Chand Head Constable started the investigation, prepared the site plan of the place of occurrence after breaking the lock of

the room in the presence of Sh. Prithvi Raj Manhas, Executive Magistrate, recovered one gallon containing about two litres of kerosene oil, some

burnt hair of the injured, clothes, one match box and certain other articles. All these items were seized and sealed for sending them to Forensic

Science Laboratory (FSL) Jammu. Statement of certain witnesses were also recorded during the investigation. On 06.06.2003, a telephonic

message was received that Babli Devi had succumbed to the injuries in GMC Jammu, upon which offence u/s 302 RPC was added. Autopsy on

the dead body of the deceased was conducted by PW Dr. Manju Tikku.

The investigation conducted by the police revealed that 5/6 months after the marriage, Mst. Goran Devi (since acquitted) started quarrelling with

the deceased. She used to beat her also by leveling allegation of infidelity and would instigate accused Joginder Singh, who also had beaten her.

She was not served even with meal and her in-laws used to threaten her to death. It further revealed that the deceased came to her parents and

moved a petition in the Court of Chief Judicial Magistrate, which, ultimately ended with an understanding and thereafter accused-Joginder Singh

and the deceased started residing in a rented room in the house of PW Ajit Singh. It is then alleged that Mst. Goran Devi had come to their

residence before the occurrence and had instigated her son-Joginder Singh and left. It is then the case of prosecution that on the date of

occurrence, when deceased had raised hue & cry and came out of the room after she was set ablaze, PW Ajit Singh and his wife PW Asha Devi,

who were sleeping in the adjoining room, extinguished the fire and accused-Joginder was standing at a distance mere as a spectator. She became

unconscious and brought to the District Hospital, Doda.

After committal proceeding, accused-Joginder Singh was charged for the Section 302/498-A RPC; whereas Mst. Goran Devi (his mother) was

charged for the offence u/s 302/109/498-A RPC.

After recording the prosecution evidence, which consists of thirteen (13) witnesses, both the accused were examined u/s 342 Cr.P.C., who

denied all the allegations. Accused Joginder Singh tendered his explanation that on the date of occurrence when he came back from S.T.D. shop,

the deceased started heating the meal for him on stove and he went to bathroom. When he heard her cries, he came out and saw that the deceased

had caught fire from the stove. He extinguished the fire. The accused were called upon to enter in defense in which they examined three witnesses.

Accused Joginder Singh also stepped into witness box u/s 342-A Cr.P.C. after moving a formal application in this regard.

We are once again referring to the material evidence produced by the prosecution during the trial and required to be re-appreciated by us being

Court of first appeal. It is settled law that the appeal is the continuation of the trial.

To start with, we refer to the injuries received by the deceased as noticed by PW Dr. Manju Tikku at the time of conducting the autopsy on

06.06.2003. These are:-

Burns present on face.

Neck.

Front of chest.

Abdomen.

Both upper limbs, burn present on dorsal aspect of both hands, palms were spared.

Both lower limbs up to knee.

In her cross-examination, she has made it clear that Babli Devi was treated for 11 days in the hospital. However, she could not name the

treating doctor. According to her, the injured had received 60% burn injuries, which were almost on the front side of the body. She further stated

that it is not necessary that the person, who received 60% injuries, becomes unconscious. She was categoric in saying that in this particular case,

the injured was conscious as she had seen the summary file of the deceased regarding her treatment at the time of conducting the post mortem.

With regard to word 'initially' mentioned in the case-sheet filed, the victim has clarified that after receiving the burns the injured was conscious and

afterwards what was her position she could not comment. She further made it clear in her cross examination that in this case, it was second kind of

burns. However, she did not find any abnormality in the head and even the hair of the deceased were intact. Report given by her is exhibited as

EXPW-MT.

We have the evidence of another doctor namely Dr. Kailash Singh, who on 30.05.2003 was a student of MS Surgery in GMC Jammu. He

examined Mst. Babli Devi (since deceased) on 30.05.2003 only and found her fit to give her verbal statement vide certificate EXPW-KS.

In his cross-examination, this witness stated that he did not know, who was the treating doctor of the patient as the patient was not directly

under his treatment. He further stated that before giving certificate, he asked certain questions to the patient, but could not explain as to what type

of questions were asked by him. He makes it clear that the police official had not requested him to record the statement of the deceased nor he

was requested to stay there for recording of patient's statement. He then stated that he did not remember whether before issuing certificate, he had

physically and clinically examined the patient.

Prosecution has also examined one Scientific Officer namely Mool Raj, who had received a packet forwarded by Dy.SP Doda in biology

Division on 25.03.2004. It contained a bundle of long hair stranded giving characteristic smell of burn, which were marked by him. The study of

the hair was conducted and on the basis of morphological examination, it revealed that the bunch of hair were belonging to human being. He got his

certificate exhibited as EXPW-MR.

We have main witnesses to the occurrence namely Mst. Asha Devi and her husband Ajit Singh. The prosecution case is that the occurrence

has taken place in the rented room in the house of Ajit Singh. PW Asha Devi has deposed that accused Joginder Singh was working at STD in the

month of May, 2003. On the date of occurrence, when she saw the deceased coming out of the room crying, she and her husband came out and

extinguished the fire, which had engulfed Babli Devi. She further stated that the deceased was taken to the hospital by her husband and other

persons. She then stated that she did not put any question to the deceased as to how she had caught fire. At this juncture she was declared hostile

by the Public Prosecutor. She was, however, cross-examined with regard to making of statement by the deceased to her involving her husband

Joginder Singh and she denied the same.

However, PW Ajit Singh in his statement has stated that he tried to extinguish the fire and enquired from Babli Devi (since deceased) as to

how she caught fire, upon which she replied that the accused was beating/killing her. He has further stated that accused threw water on her and

extinguished fire. He too was declared hostile as he did not support the case of the prosecution with regard to any quarrel ever took place between

the deceased and the accused Joginder Singh prior to the occurrence. He was cross-examined by the Public Prosecutor with regard to his

statement recorded u/s 161 Cr.P.C. involving Joginder Singh, husband of the deceased and even his mother Mst. Goran Devi, who had come to

the rented room of the accused one day prior to the occurrence. He denied all this.

We have another set of evidence before us. PW Gori Lal, the father of the deceased. He is real brother of Mst. Goran Devi-accused. He in his

substantive statement, has stated that six months after the marriage, accused-Joginder Singh and his mother (Mst. Goran Devi) had started mal

treating his daughter on the pretext of bringing less dowry and used to demand Rs.1 lac for Joginder Singh's employment. He further stated that

Mst. Goran Devi used to instigate his son for torturing his daughter. He also talks of compromise arrived at between the parties, and ultimately

accused- Joginder Singh and deceased started living in a rented accommodation (place of occurrence). He then talks of reaching of the hospital

after getting information of the incident from where his son Ashok Kumar, his brother, brother-in law Mohan Lai, sister Sarishta Devi had taken

deceased to GMC hospital Jammu. He then talks of the statement of Babli Devi recorded by the police in his presence on 30.05.2003. He also

talks of locking of the room by the police after the occurrence and lifting the articles in his presence through seizure memo. He has also stated in his

cross examination that they had visited the hospital on the information supplied to them by accused Joginder Singh, who disclosed that deceased

had caught fire due to bursting of stove, but in fact, no stove had busted. He further makes it clear that when Mst. Babli Devi regained

consciousness after 2/3 days in Jammu Hospital, she remained conscious for 2/3 days and thereafter she did not talk for two days before her

death. He then states that when statement of Babli Devi was being recorded, she narrated the story in Bhadwerwahi (local language of the region)

and Urdu. The words spoken in Bhaderwahi were translated by him to the Investigating Officer. He then states that he did not know as to who

was the doctor sitting by the side of the injured, but after recording the statement, Investigating Officer and doctors had left. It has further come in

his evidence that different doctors were treating his daughter. He was confronted from his previous statement recorded u/s 161 Cr.P.C. with

regard to the demand of Rs.1 lac and Television by way of dowry, to which he explained that he did not know as to why the police did not make a

mention of this fact in his statement.

PW Ashok Kumar, real brother of the deceased, also talks about the torturing of his sister by accused Joginder Singh and his mother. He,

however, states that on 27.05.2003, Joginder Singh came to their house and stated that Babli Devi was admitted in the hospital after receiving burn

injuries. He then talks of regaining of the consciousness by Babli Devi on 30.05.2003 and making statement before police describing the entire

occurrence. In fact, this witness toes the statement of his father, Gori Lal.

About the specific demand of Rs.1 lac and colour television, his explanation is also the same as tendered by PW Gori Lal about the non

mentioning of this fact in the statement recorded u/s 161 Cr.P.C. He further states that the statement of Babli Devi was attested by his father and

Mst. Shreshta Devi (real sister of Gori Lal).

We have then the evidence of one Mohan Lal, brother-in-law of Gori Lal (husband of sister), who after giving the flashback of the earlier

events, has stated that after getting the information of the occurrence, he came to GMC Jammu where Mst. Babli Devi was getting treatment and

when she regained consciousness, on their asking she told that on the date of occurrence she was at her residence and when accused came from

STD, he caught her from neck and started beating her with shoe and thereafter he sprinkled kerosene oil on her and set her ablaze with match stick

and thereafter she became unconscious. He states that his brother-in-law, Gori Lal, was also present there at the time of such disclosure.

In his cross-examination, he is categoric in saying that he had joined his duties on 29th and went back to Jammu on 30th May. He then stated

that they were sitting outside and heard Babli Devi crying and when they entered the ward, they enquired from her about the occurrence, upon

which she narrated the entire incident to them and again became unconscious. About the allegation of infidelity, this witness has stated that Joginder

Singh and his mother had themselves disclosed this fact to him after six months of the marriage in presence of his wife and others and he refuted the

same. It is pertinent to mention here that this witness does not talk about recording of the statement of Babli Devi by the police on 30.05.2003,

rather according to him, Babli Devi stated the entire occurrence to her family members including her father.

The prosecution has examined another witness namely PW Amrish Kumar, undergoing training of Lab. Assistant in GMC Jammu. He has

deposed that on 27.05.2003 he got a telephonic call from the family member of Babli Devi that she was under treatment at GMC Jammu and he

went to see her in burn ward where all the relatives including the father of the deceased was also present. He further states that till 29.05.2003, she

remained unconscious and on 30.05.2003 regained consciousness and started talking and disclosed that her husband (Joginder Singh) was at

work at STD and at about 10 p.m. when he came back, he started beating her and after pouring kerosene oil on her, set her ablaze. He further

stated that Babli Devi told that her landlord came out and extinguished fire by pouring water. It has further come in his statement that when she was

making statement, one doctor, two police personnel, one nurse and father of the deceased were hearing her statement.

In his cross-examination, he has-stated that accused Joginder Singh had also applied bandage on his hand but he did not know whether the

hand was burnt or not. He then stated that Mst. Babli Devi disclosed the incident in Urdu language, but he did not know the name of the doctor,

who was present at that time.

The main investigation is conducted by PW Tara Chand Head Constable only. He recorded the statement of Mst. Babli Devi on 30.05.2003,

which is exhibited as EXPW-TC. He states that before recording it, he had obtained the certificate from the Medical Officer and requested him to

attest the statement, but he refused to do so on the pretext that he had already issued separate certificate for her fitness. He also talks of lifting of

articles from the place of occurrence in the presence of PWs Prithvi Raj Marthas and Ram Lal.

In his cross examination, this witness states that when he went to record the statement of Babli Devi, her father, two nurses and one doctor

were already there. Babli Devi could speak Dogri and Hindi, and made her statement in Hindi. He further stated that he recorded the statement of

Babli Devi in presence of doctor and nurses, but did not obtain their signatures as witnesses. His experience in the police department as stated by

him is of 28 years and was well versed with the police rules. He then states that other relatives of Mst. Babli Devi were also in the ward at the time

of recording of statement, but when they were asked to sign it, they refused. However, he had not mentioned this fact in the statement. He refuted

the suggestion that father of Babli Devi dictated the statement. He admits that there are many Magistrates in Jammu town, but he did not make any

request to the Magistrate for recording the statement of the injured. He then states that after recording the statement, he had gone to FSL and

came back to Doda on 03.06.2003, although SHO Police Station Doda was informed on phone regarding recording of statement.

This is all about main evidence produced by the prosecution.

Besides producing three witnesses in defence to show that accused was working in STD shop and having cordial relations with the deceased

wife, he himself appeared as witness u/s 342-A Cr.P.C. (corresponding to Section 315 of the Central Code). His statement needs to be referred

to in brief. He states that his sister was married to his brother-in-law Ramesh (son of Gori Lal), who was SPO and killed by militants in 2001.

Government had paid Rs.2 lacs on his death, which his father-in-law (Gori Lal) wanted to grab, but they deposited the said amount in the name of

his sister and three children, which was to the disliking of Gori Lal. As such, he became inimical against them. In fact, Gori Lal-his father-in-law,

has been projected to be the root cause of rift between him and his deceased wife and a false case of maintenance was also got registered against

him at his instance, which ultimately ended into compromise and he and his wife started staying happily. He further stated that the deceased was

daughter of his real maternal uncle (mother's brother). About the occurrence, the explanation tendered by the accused is that at about 9 p.m. when

he came back from his work, he found his wife and daughter sleeping. He awakened his wife and asked her to heat up the meal and he himself

went to bathroom. In the bathroom, he heard the cries and when he came out, he found the stove pipe had busted and his wife caught fire on her

front side. He immediately sprinkled water from tanki and covered her with a blanket. In the meantime, his landlord and his wife also came there

and helped in extinguishing the fire. Thereafter, he took Babli Devi to the District Hospital Doda and on the very next day, he informed his in-laws

of the incident. As the injured was referred to GMC Jammu, he alongwith his father-in-law and other family members came to GMC Jammu and

ultimately on 06.06.2003 she succumbed to the injuries. He has further stated that when he had taken his wife to the hospital, he did not lock the

room and in his absence his father-in-law visited his house twice or thrice and taken certain articles. He was cross-examined with regard to the

occurrence in which he disclosed that doctor had enquired from him and he told that the fire was caught from the stove. With regard to the burn

injuries received by him, he was categoric in saying that he obtained certificate from the doctor, but at the time of arrest the police had taken away

that certificate and even on the date of his arrest his hand was bandaged.

On Court question, he stated that his daughter, who was sleeping, woke up after the fire was extinguished. He made it clear that the deceased

used to prepare the meal while sitting and not standing on the shelf. About the landlord (PW Ajit Singh), he stated that he remained with him in the

hospital for half an hour and thereafter he was all alone and when in the morning he went to inform his father-in-law, he requested his uncle Hans

Raj to take care of his wife and returned back within half an hour.

Heard Mr. Wazir, learned counsel for the appellant and Mr. Bakshi, learned Dy. Advocate General representing the State. Perused the entire

record minutely.

The main thrust of argument of Mr. Wazir is against the 'dying declaration'. He claims that it is tutored one, suffering from many defects

including the manner in which it was recorded.

To strengthen his arguments, Mr. Wazir submits that Babli Devi had received burn injuries on the night intervening 26th/27th of May, 2003 and

was initially taken to Government Hospital Doda, from where she was referred to GMC Jammu on the next day i.e. 27.05.2003. The prosecution

has not brought the Medical Legal Report (MLR) of Babli Devi prepared by doctor of Government Hospital Doda. The concerned doctor has not

been produced by the prosecution to depict the physical condition of the victim. This is the position even upto 30.05.2003 till recording of the

statement. He goes on to submit that the police swung into action on 03.06.2003 whereas the statement was recorded on 30.05.2003 by HC Tara

Chand. The statement remained with this police official upto 03.06.2003. This delay is fatal to the prosecution and creates lot of doubts about the

genuineness of the statement, now to be treated as 'Dying Declaration'.

Mr. Wazir then submits that even if Babli Devi was shown fit to make statement at a particular time by the attending doctor, still the manner in

which the 'dying declaration' is recorded is again not free from suspicion. Admittedly doctor who gave the certificate was not present at the time of

recording of the statement and it is recorded by HC Tara Chand in the presence of Gori Lal, the father of the deceased. The explanation tendered

by HC Tara Chand is that he had requested the doctor to sign the statement, but he refused to sign stating that he had already issued the certificate,

does not appear to be trustworthy. In the same breath, he submits that there are many infirmities in the evidence of main witnesses to the 'dying

declaration' namely Gori Lal, Ashok Kumar, Mohan Lal and Amrish Kumar and while pointing out those defects, he submits that possibility of

tutoring in its recording cannot be ruled out.

Mr. Wazir lastly submits that it has come on record that although Magistrates are stationed in the town, yet no Magistrate was requested to

record the statement of Babli Devi. Had the services of any Magistrate availed of while recording the statement of deceased, no finger could be

possibly raised about its credibility. The police has intentionally not adhered to the police rules in the present case so as to give leverage to the

complainant side to coin-up a story of its own. While pointing out certain weaknesses in the investigation carried out in the case, he states that on

one hand the 'dying declaration' is not free from doubts so as to make the basis of conviction, on the other hand, the explanation tendered by the

accused, appears to be most plausible as narrated by him when stepped into the witness box after seeking a formal permission of the Court u/s

342-A Cr.P.C. He had also received injuries while saving the deceased and also informed about the occurrence to his in-laws without wasting any

time as is admitted by Ashok Kumar, the real brother of the deceased. This all absolves him of the charge.

On the basis of the aforesaid submissions, Mr. Wazir prays for acquittal of the accused, which is vehemently opposed by Mr. Bakshi, learned

State counsel, submitting that the 'dying declaration' has been found by the trial Court to be voluntary and truthful, which is otherwise corroborated

by the evidence of other witnesses, who were present in the hospital when the statement was being recorded. Therefore, it is absolutely safe to act

upon it. Mr. Bakshi then submits that the 'dying declaration' alone can form basis of conviction and rule of corroboration is merely a rule of

prudence as is the settled law. But in the present case, the 'dying declaration' by itself is true to the core and gets corroboration also. Certain

contradictions in the statement of the witnesses or some defects vis-'-vis procedure adopted by the police in recording the dying declaration, as

pointed out, will not destroy the basic 'dying declaration'. Therefore, according to Mr. Bakshi, the conviction of accused-Joginder Singh as already

recorded by the trial Court deserves to be upheld.

Nemo moriturus praesumitur mentire: No one at the time of death is presumed to tell lie is the philosophy underlying admittance in evidence of

dying declaration. This is the reason that dying declaration enjoys a sacrosanct status as a piece of evidence being in the shape of last words

coming from the mouth of the deceased (victim). On the basis of this principle, in Khushal Rao Vs. The State of Bombay, , their Lordships of

Apex Court held that it is not a rule of law or even the rule of prudence that 'dying declaration' cannot be made the sole foundation of conviction.

This view has been reiterated in subsequent judgments also rendered by the Apex Court.

The Hon'ble Supreme Court in ease 'Sham Shankar Kankaria v. State of Maharashtra' 2006 (4) R.C.R. (Cri) 239 has taken stock of the

following cases where the principles governing dying declaration have been laid down:

i) Smt. Paniben Vs. State of Gujarat, ;

ii) Munnu Raja and Another Vs. The State of Madhya Pradesh, ;

iii) State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, ;

iv) Ramawati Devi Vs. State of Bihar,

v) K. Ramachandra Reddy and Another Vs. The Public Prosecutor,

vi) Rasheed Beg and Others Vs. State of Madhya Pradesh, ;

vii) Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh, ;

viii) Ram Manorath and Others Vs. State of Uttar Pradesh, ;

ix) State of Maharashtra v. Krishnamurti Laxmipati Maidu, (1980) Supp. SCC 455;

x) Surajdeo Ojha and Others Vs. State of Bihar,

xi) Nanhau Ram and Another Vs. State of Madhya Pradesh,

xii) State of U.P. Vs. Madan Mohan and Others, ;

xiii) Mohanlal Gangaram Gehani Vs. State of Maharashtra,

It is also well settled that the rule requiring corroboration is merely a rule of prudence. However, in order to pass the test of reliability, the

'dying declaration' has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in absence of the

accused, who had no opportunity of testing the veracity of the statement by cross-examination. Once after scrutinizing the 'dying declaration' the

Court ensures that it is not the result of tutoring, prompting or imagination and is true and voluntary, the conviction can be based upon it. Where a

'dying declaration' suffers from infirmity, it cannot be made the basis of conviction.

It is also well settled that merely because a 'dying declaration' contains the details of the occurrence, it is not to be rejected and equally if it is a

brief statement, it is not to be discarded. On the contrary, the shortness of the statement guarantees the truth. We are also conscious of the settled

legal position that it is not essential that a 'dying declaration' should be made only before a Magistrate as Section 32 of the Evidence Act, no-where

states that the 'dying declaration' must be recorded in the presence of Magistrate. It can be recorded by a police officer in the presence of the

doctor, who had given an opinion that the patient is in a fit state of making the statement. Similarly, if the 'dying declaration' is not recorded in

'question-answer' form, this by itself cannot be a ground of its rejection. There are certain steps provided in the police rules, which normally, are to

be followed by every investigating officer while recording 'dying declaration'. However, non-compliance thereof strictly would not make it

unreliable.

What is evidentiary value of dying declaration, the law has been summed up once again in a recent judgment of Apex Court in case 'Dayal

Singh v. State of Maharashtra' 2007 (3) All Ind. CLR (S.C.) 346, wherein their Lordships while referring to Khushal Rao's case (supra) and other

judgments of Hon'ble Supreme Court on various aspects with regard to credibility of 'dying declaration' have observed as under:-

Para 18:

The earliest case in which the law on the point of dying declaration was considered in detail by this Court in Khushal Rao Vs. The State of

Bombay, . The Court rules that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction

unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was

made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying

declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with

reference to the principles governing the weighing of evidence. It has been further held that in order to pass the test of reliability, a dying declaration

has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no

opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration

was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corrobo(sic)ion.

Para 19:

In State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, the Court speaking through Chandrachud, C.J. held as under:

It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao Vs. The State of Bombay,

. Haban Singh v. State of Punjab, AIR 1962 SC 439, Gopalsingh and Another Vs. State of Madhya Pradesh and Another, . There is not even a

rulke of prudence which has hardened into a rulke of law that a dying declaration cannot be acted upon unless it is corroborated. The primary

effort of the Court has to be find out whether the dying declaration is true. If it is no question of corroboration arises It is only if the circumstances

surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.

Para 20:

In K. Ramachandra Reddy and Another Vs. The Public Prosecutor, it was held that a great solemnity and sanctity is attached to the words of a

dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court

has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a produce of imagination. It was further held

that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to

obverse and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying

declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. In Pothakamuri Srinivasulu @

Mooga Subbaiah Vs. State of Andhra Pradesh, it has been held that if the deceased made statement to the witnesses and there testimony is found

to be reliable the same is enough to sustain the conviction of the accused. In Mafabhai Nagarbhai Raval Vs. State of Gujarat, it was held that the

doctor who has examined the victim was the most competent witness to speak about her condition. Para 22:

The other reason given by the High Court is that the dying declaration was not in question- answer form. Very often the deceased is merely asked

as to how the incident took place and the statement is recorded in a narrative form. In fact such statement is more natural and gives the version of

the incident as it has been perceived by the victim. The question whether a dying declaration which has not been recorded in question-answer form

can be accepted in evidence or not has been considered by this Court on several occasions. In Ram Bihari Yadav Vs. State of Bihar and Others, ,

it was held as follows:

It can not be said that unless the dying declaration is in question-answer form, it could not be accepted. Having regard to the sanctity attached to a

dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not to be under apprehension of

death, it should be in the actual words of the maker of the declaration. Generally, the dying declaration ought to be recorded in the form of

questions and answers but, if dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the

mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliability. The mental condition of the maker of the

declaration, alterness of mind, memory and understanding of what he is saying, are matter which can be observed by any person. But to lend

assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon.

Para 23:

In Padmaben Shamalbhai Patel Vs. State of Gujarat, it was held that the failure on the part of the medical men to record the statement of the

deceased in question and answer form cannot in any manner affect the probative value to the attached to their evidence. This view was reiterated in

State of Rajasthan Vs. Bhup Singh, and Jai Prakash and Others Vs. State of Haryana, .

After following the ratio of the aforementioned judgments on all the aspects including the manner of recording the 'Dying Declaration', it can be

safely said that for holding conviction on dying declaration, the touchstone is that it must pass the test of its reliability. This, however, depends upon

the facts of each individual case. Let us now examine the case at hand in this regard in the light of the main evidence referred to hereinabove.

The vital issue for consideration before us is, whether deceased Babli Devi had caught fire accidentally on account of bursting of the stove

while heating the meal on the date of occurrence as put forth by accused Joginder Singh or the dying declaration (EXPW-TC) made by her

involving him, is trustworthy so as to uphold his conviction.

First of all, we will examine the 'dying declaration' independently vis-'-vis its reliability.

The case set up by the prosecution throughout is that Mst. Babli Devi (since deceased) was not in a position to make a statement upto

30.05.2003 when PW Head Constable Tara Chand approached Dr. Kailash Singh (doctor on duty in the burn ward) for obtaining fitness

certificate of the patient. Admittedly, there is no evidence on record to show that from 27.05.2003, the date when Mst. Babli Devi was referred to

GMC Jammu upto 30.05.2003, any police official had ever approached the doctor for obtaining the fitness certificate. We find only one fact from

the statement of H.C Tara Chand that on 27.05.2003 when police went to Government Hospital Doda, Babli Devi was found unfit to make the

statement. Even to that effect, neither the concerned doctor has been produced nor any certificate has been proved on record. Another admitted

position before us is that the prosecution has not placed any documentary evidence on record about the physical and clinical treatment provided to

the victim atleast upto 30.05.2003, the date when her statement was recorded so as to know as to what was her mental condition throughout these

days. Another admitted position before us is that Dr. (PW) Kailash Singh, who has stepped into the witness box, was not the treating doctor of the

injured and was on duty incidentally in the Burn Ward when HC Tara Chand had contacted him. He is a doctor from another stream (Surgery

Ward) as is admitted by him in his cross-examination. He also admitted categorically that he never treated Mst. Babli Devi and the police did not

approach Head of the Department (HOD) of Burn Ward.

No other doctor has stepped into the witness box to prove any document with regard to sending of any intimation to the police with regard to

the admission of Babli in Govt. Medical College, Hospital, Jammu or making any request to the police for recording of her statement. It is only on

30-5-2003, that Head Constable, Tara Chand goes to the Burn Ward and asked for the opinion with regard to her fitness. What was his source of

information in this regard is not known. Possibility cannot be ruled out that Babli Devi might be in a position to make statement before Head

Constable, Tara Chand reached the hospital. It could be a day prior to recording of her statement or even on 30-5-2003 itself. Therefore, in the

present set of circumstances, we have to be very cautious before holding conviction of accused Joginder Singh, primarily on the basis of dying

declaration of Babli Devi.

Let us now examine the evidence of the other witnesses also produced by the prosecution for the purposes of corroborating the dying

declaration for the reason that prosecution itself is asking for it. It is in two sets. One set consists of father of the deceased PW Gouri Lal, brother

of the deceased PW Ashok Kumar, brother-in-law of Gouri Lal PW Mohan Lal and PW Amrish Kumar, who were present in the hospital and

visiting Babli before she made the statement to the police. The other set of evidence is PW Smt Asha Devi and her husband Ajit Singh where Babli

and Joginder were staying in a rented room.

Smt. Asha Devi has not supported the case of the prosecution and declared hostile. Her husband PW Ajit Singh has also been declared as

hostile but he talks about some words said by Babli in his presence. Both of them had taken Babli to the Govt. Hospital, Doda along with accused

Joginder and even went to Govt. Medical College, Hospital, Jammu on 27-5-2003. The case of the prosecution is that police had reached Govt.

Hospital, Doda on 27-5-2003 itself after getting the information about the admission of Babli. Had Ajit been knowing about the manner in which

the incident had occurred or had Babli disclosed to him about it, he would have certainly disclosed all these facts to the police and in that

eventuality a case u/s 307 RPC would have been registered on 27-5-2003 itself, whereas, it is not so. We, for our satisfaction, have appreciated

this aspect yet from another angle. Statement of Babli, which is the basis of the recording of the FIR, is not only containing the complete details of

the occurrence but about all the incidents prior to the occurrence showing the involvement of her mother-in-law since her marriage. She even states

that when she was set ablaze by her husband and by the time she raised alarm, the fire engulfed her and she became unconscious. She further

stated that on regaining consciousness, she found herself to be admitted in GMC Jammu. She did not whisper a word about Ajit or his wife

reaching there to save her and she also disclosed the manner of occurrence to them, accusing her husband. We, therefore, do not attach any

weight-age to the statement of PW Ajit even if considering that some part of evidence of a hostile witness, if found trustworthy, can be taken into

account.

Statement of Mohan Lal, the real brother-in- law of PW Gouri lal (father of the deceased) is badly starring at the prosecution and it creates a

lot of suspicion in our mind with regard to the sanctity to be attached to the dying declaration. He states that after getting the information of the

incident, he along with his wife reached GMC, Jammu where they found Babli admitted. He further states that he came back and left his wife there

in the hospital itself and went again on 30-5-2003 and on that day, Babli had disclosed to them about the manner in which the entire occurrence

had taken place. It is virtually the same, which has now taken the shape of dying declaration. He is very categoric in saying that at that time, father

of the deceased and other family members were present. He does not say a word that Babli had disclosed about the occurrence in the presence of

Head Constable, Tara Chand or any doctor present in the ward. If, he being a witness lending corroboration to the dying declaration was not

supporting the line of prosecution, he could be declared hostile and in cross-examination he might have supported the case of the prosecution.

However, the factual position now before us is that prior to recording of the statement by Head Constable, Tara Chand, Babli was fit to make

statement and had, in fact, disclosed each and every aspect to her family members including her father. When did she disclose about the

occurrence is again not known. This really creates doubt in our mind not only about the true facts with regard to the occurrence but also the

manner in which it is recorded. If it is so, the possibility of tutoring Babli Devi before Head Constable, Tara Chand reached the hospital cannot be

ruled out. Thus, it would be unsafe to hold that Dying Declaration was voluntary and in its purest form. Another inference can also be drawn by us

that the prosecution was not sure about the truthfulness of the dying declaration, therefore, at every stage asked for the corroboration, but failed.

We do find many vital infirmities in the statement of Gouri Lal, his son Ashok and Amrish but even if, we give some latitude to all these flaws, still

the statement of Mohan Lal, who is none else but from the close relation of Gouri Lal being his brother-in-law cannot be ignored at all.

Since we are testing the veracity of dying declaration on the touchstone of its reliability, we have appreciated it in the light of evidence of PW

Gouri Lal also, who is very categoric in saying that when Babli made the statement before the police, no one else from his family was there. This

simply means that the earlier statement made by Babli to her family members was not in the presence of the police. Gouri Lal does not talk of

making of statement of his daughter prior to the statement made before the police. Which set of evidence is true for believing, is again a very

disturbing feature in the present case? The fact remains that the time, the manner and the true story with regard to the original occurrence, all these

vital aspects are under clouds of suspicion. We do not feel the necessity of entering into detailed discussion with regard to the evidence of PW

Ashok Kumar, the brother of the deceased and PW Amrish, though their evidence is also contradictory to each other.

Describing the occurrence in detail or short by the declarant depends upon the mental state of the victim of each case and also to be adjudged

from the attending circumstances. Sometimes the victim is in such an acute pain that he cannot depict the minutest details of the occurrence. In that

eventuality, the statement has to be very brief and short. At the same time, there can be a situation when the injured is in such a mental state that he

is able to depict even the minutest details of the occurrence. For instance, a victim has received burn injuries only on legs or hands not effecting the

vital parts or the severity of the injury is not that grave creating problem to make a statement, it can contain all the minutest details. This all depends

upon the facts of each case. In the case at hand, the injuries were of sixty per cent as is clear from the statement of Manju Tikoo (PW), who

conducted the postmortem. As discussed hereinabove, there is no evidence on record to show the clinical condition of Babli till recording of her

statement on 30-5-2003. So we can gather some information from the statement of Dr. Tikku only. She stated that she had seen the summary file

of the deceased regarding her treatment after conducting the postmortem and the word mentioned therein was 'initially conscious', which meant that

after receiving the burns, the injured was conscious. She further stated that she could not comment as to what was her position afterwards.

Admittedly, she is not the treating doctor and, therefore, much weightage cannot be given to her evidence in this regard. Whatever she stated, it

was by putting stress on her memory as the treatment file was not before her. On seeing the burn injuries and giving some weightage to the

statement of doctor Manju Tikoo, even if we presume that Babli Devi was conscious for some time, an effort to record her statement should have

been made. It is not so. We have to appreciate the statement of Babli as it is before us where the minutest details are given right from the date of

marriage, depicting the harassment allegedly caused to her at different occasions by her husband Joginder Singh and mother-in-law Goran Devi

(since acquitted) and then about the main occurrence. From this all, it can be safely said that her mental faculties were absolutely supporting her

while making the statement. This on the face of it appears to be somewhat abnormal. We are conscious of the settled legal position that if the Dying

Declaration contains details of the occurrence, it is not to be rejected and equally if it is brief, it is again not to be discarded. But sometimes

abnormal tinge in it can create suspicion. Had statement of Babli been containing few details of the occurrence, we would have not seen it with an

eye of suspicion, but minutest detail in her statement that too in a case when she remained unconscious throughout right from the date of

occurrence for more than four days and that no evidence being brought about the clinical condition of the victim upto 30th May, which flaw can not

be overlooked, it does create lot of doubts. Therefore, testing the statement of Babli on that touchstone, in our view, it does not pass the test of

reliability. The matter does not rest here and calls for appreciation, yet from another angle also. If such a lengthy statement of Babli leads the court

to draw an inference that she was absolutely in fit state of mind to make this statement, then it can be comfortably said that she was also in the

same state of mind before the police reached the hospital and could be tutored very comfortably. We have the evidence of PW Mohan Lal in this

regard. The net result is that the statement of Babli was not pure and original coming out from her mouth depicting the true occurrence, rather it

was contaminated one, may be at the instance of her father Gouri Lal, who according to accused Joginder Singh was inimical to him for the

reasons depicted by him in his statement recorded u/s 342-A of Cr.P.C (corresponding to Section 315 of Central Code).

Let us now advert to the manner in which the statement of Babli Devi is recorded and the delay caused by the police in lodging the first

information report even after recording of the statement. On the foot of the statement, we find the signature of Head Constable, Tara Chand.

However, there is no date on it. There are signatures of Gouri Lal and the thumb impression of Babli Devi. There is no certificate of the doctor on

this statement to the effect that during recording of the statement, the victim remained in fit state of mind. No doubt, a separate certificate of Dr.

Kailash Singh is proved in this regard. The explanation given by Head Constable, Tara Chand is that he asked the doctor to sign the statement but

he refused to do so saying that he had already given the certificate of fitness. Signatures of Ashok Kumar are not obtained on this statement,

though according to his statement, he was also there when the statement of his sister was being recorded. We can extend some concession for all

these procedural irregularities conducted by the I.O. but one vital defect, which cannot go unnoticed by us is that the investigating officer does not

put the date after recording the statement. This is unusual and normally it is not done. We would have given some concession for even this lapse as

well, had there been no delay in lodging the first information report. It is recorded on 3-6-2003 i.e after the lapse of three days. The explanation

tendered for this delay by Head Constable, Tara Chand is that he went to FSL along with the statement and informed SHO of the concerned

police station on phone about the recording of the statement. This explanation, we cannot just accept being absolutely baseless. In a case of such a

serious nature, Head Constable, Tara Chand thought of going to the office of FSL without sending the statement for the lodging of the FIR, which

could be sent by any constable accompanying him to the hospital through a written intimation (ruqa) to the SHO. Such a non-serious approach, in

fact calls for a stern, action against him on departmental platform. Any how, this undoubtedly creates a lot of suspicion in our mind about the

truthfulness of the original statement as possibility of it being manufactured at any subsequent stage may be at the dictation of Gouri Lal, who

himself has admitted when stepped into the witness box that his daughter was stating in a particular regional language, which was being translated

by him and thereafter he was dictating it to Head Constable, Tara Chand, can not be ruled out.

We are conscious of the settled legal position that it is not essential that the dying declaration should be recorded by a Magistrate or even by a

doctor attending to the patient and the statement recorded by the police officer can also be given due weightage if the facts so warrant, but in the

case at hand, the manner in which the statement of Babli Devi is recorded and the fact that intentionally it has been delayed for the purposes of

registering the FIR goes to draw an adverse inference that the I.O. had intentionally not obtained the signatures of the doctor after recording the

statement and the explanation tendered that he refused to do so is neither here nor there. The rule of caution is that the statement should be

recorded by me police in the presence of the doctor only. Had the doctor put his signatures after the statement was recorded, he would have

certainly given the date and time and in that eventuality, we might not have given importance to the delay in lodging the first information report

considering it to be a laxity on the part of the investigating officer for which justice should not become causality. The case at hand, on its own facts,

is entirely of different nature, which compels us to lead to a irresistible conclusion that the dying declaration of Babli Devi is not in its purest form.

We are now appreciating the entire scene of occurrence in the light of the injuries received by the deceased Babli Devi and the explanation

tendered by accused Joginder Singh, who not only suggested his case to the witnesses, but also projected his false implication by summing up the

courage to step into the witness box u/s 342-A CrPC after obtaining an order from the trial court by moving a formal application, knowing very

well that his statement could be read against him. One fact is admitted by PW Ashok Kumar, the real brother of the deceased that accused

Joginder was also having a bandage on his hand when he reached Govt. Hospital, Doda on the next date of the occurrence where his sister was

admitted. Another fact is also admitted by the complainant side that they were informed by accused Joginder only. This is what is also said by the

accused when examined u/s 342-A CrPC. Although with regard to the burn injuries received by him, there is no medical evidence on record, this

by itself would not make his statement unbelievable. Even PW Ajit Singh, the landlord has also stated that accused Joginder had also received burn

injuries in this occurrence while extinguishing fire. The injuries received by the deceased as noticed at the time of conducting autopsy are burns

present on the face, neck, front of chest, abdomen, both upper limbs and dorsal aspect of both hands. However, palms were spared. There were

burns on both lower limbs upto knee. The doctor of autopsy did not talk of burn on the hair, rather no abnormality was noticed on the head. All

these injuries are possible when a lady is sitting in front of a stove. The I.O. had lifted two liters of kerosene in the plastic tin along with certain

articles, but the stove is not taken into possession by him through recovery/seizure memo. Any how, the seat of burn injuries on the person of the

deceased are indicative of the fact that the occurrence had not taken place in the manner as depicted in the statement of Babli Devi, rather

possibility of receiving these injuries in the manner as depicted by accused Joginder Singh is more. This probablizes the plea of defence taken by

him.

Perhaps no other material aspect is left by us untouched.

As a sequel to the aforesaid inherent weaknesses when taken collectively make the case of the prosecution very weak and doubtful about the

credibility to be attached to the statement (dying declaration of Babli Devi), as in our considered view, it is not free from suspicion. Therefore, we

have come to a definite conclusion that it calls for rejection being not safe to hold the conviction of accused, Joginder Singh.

Resultantly, we allow criminal appeal No. 40/2009 filed by Joginder Singh and set aside the impugned judgment of his conviction and sentence

recorded for the charge of Section 302 RPC. He is acquitted of the said charge and shall be released forthwith, if not required in any other case.

Confirmation No. 14/2009 is also answered accordingly.