JAGBIR SINGH versus STATE

[2019] 11 S.C.R. 1137

JAGBIR SINGH

STATE (N.C.T. OF DELHI)

(Criminal Appeal No. 967 of 2015)

SEPTEMBER 04, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Penal Code, 1860:

ss. 302 and 506 - Prosecution under - Alleging that theaccused killed his wife setting her ablaze after pouring keroseneoil over her - Accused also sustained burn injuries - In the MLC(on 24.1.2008 the date of incident) the victim-wife made herstatement that fire was accidental which was caused due to leakageof petrol from the tank of motorcycle when the accused was lightinghis 'biri' - On 25.1.2018 in statement made to the police officerthe victim did not implicate the accused - However, in her statementdated 27.01.2008 the victim attributed the act of setting her ablazeby pouring kerosene oil over her - Presence of kerosene oil onthe clothes of the victim, at the scene of incident and also on thearticles recovered therefrom - Plea of accused that he was beingimplicated in the case pursuant to conspiracy by the other sisters,brother-in-law and mother of the deceased-victim to deprive himof the property of the deceased - Courts below convicted theaccused relying on dying declaration dated 27.01.2008 discardingthe earlier two statements of the deceased and also relying on otherevidence - Appeal to Supreme Court - Held: There is overwhelmingevidence that the fire was caused by the use of kerosene - Thestatements of deceased dated 24.01.2008 and 25.01.2008 do notexplain the cause of smell of kerosene from the body of thedeceased as well as the accused and from the clothes of thedeceased - The version as projected in the statement/declarationdated 27.1.2008 is clinchingly proved as the same is corroboratedby other evidence - The declaration dated 27.01.2008 is reliableas the deceased was fit to make the declaration - Evidence Act,1872 - s. 32 - Dying Declaration.

ADying Declaration:

Evidentiary value of dying declaration - Held: Convictioncan be based solely on dying declaration - If the court finds thatthere is nothing suspicious about the declaration; that there is notutoring or prompting; and that imagination was not at play inBmaking the declaration, no corroboration is required.

Multiple dying declarations - Inconsistent and irreconcilabledeclarations being repugnant to one another - Reliance on - Held:The Court, after examining the entirety of materials as also thecircumstances surrounding the making of the different dyingCdeclarations, should act upon the truthful dying declaration.

Absence of medical certificate as to fit mental and physicalcondition of the person making dying declaration - Effect of -Held: The medical certificate would go long way in inspiringconfidence of the court in the declaration - However, suchDcertificate is essentially rule of caution - The voluntary andtruthful nature of declaration can be established otherwise -Absence of such certificate is not fatal.

Dismissing the appeal, the Court

HELD: 1.1 Conviction of person can be made solely onEthe basis of dying declaration which inspires confidence of thecourt. If there is nothing suspicious about the declaration, nocorroboration may be necessary. No doubt, the court must besatisfied that there is no tutoring or prompting, the court mustalso analyse and come to the conclusion that imagination of thedeceased was not at play in making the declaration. In thisFregard, the court must look to the entirety of the language ofthe dying declaration. Considering material before it, both in theform of oral and documentary evidence, the court must besatisfied that the version is compatible with the reality and thetruth, as can be gleaned from the facts established. [Para 30]G[1164-E-H]

1.2 There may be cases where there are more than onedying declaration. If there are more than one dying declaration,the dying declarations may entirely agree with one another.There may be dying declarations where inconsistencies betweenHthe declarations emerge. The extent of the inconsistencies would

then have to be considered by the court. The inconsistenciesmay turn out to be reconciliable. In such cases, where theinconsistencies go to some matter of detail or description butis incriminatory in nature as far as the accused is concerned, thecourt would look to the material on record to conclude as towhich dying declaration is to be relied on unless it be shown thatthey are unreliable. [Para 30] [1165-A-C]

1.3 Where in one dying declaration, the accused may notbe blamed at all and the cause of death may be placed at thedoorstep of an unfortunate accident. This may be followed upby another dying declaration which is diametrically opposed tothe first dying declaration. In fact, in that scenario, it may notbe question of an inconsistent dying declaration but dyingdeclaration which is completely opposed to the dying declarationwhich is given earlier. [Para 30] [1165-D-E]

1.4 When there are more than one dying declaration, andin the earlier dying declaration, the accused is not sought to beroped in but in the later dying declaration, summersault is madeby the deceased, the case must be decided on the facts of eachcase. The court will not be relieved of its duty to carefullyexamine the entirety of materials as also the circumstancessurrounding the making of the different dying declarations. If thecourt finds that the incriminatory dying declaration brings outthe truthful position particularly in conjunction with the capacityof the deceased to make such declaration, the volu ntariness withwhich it was made which involves, no doubt, ruling out tutoringand prompting and also the other evidence which support thecontents of the incriminatory dying declaration, it can be actedupon. Equally, the circumstances which render the earlier dyingdeclaration, worthy or unworthy of acceptance, can beconsidered. [Para 31] [1166-B-D]

1.5 The Trial Court has brushed aside the contention thatthe Dying Declaration was result of conspiracy, as frivolous. Theproperty belonged to PW7-mother-in-law of the appellant. It isinconceivable how the appellant would have any right eitherduring her lifetime or even upon her dying intestate to get theproperty under the Hindu Succession Act, 1956. Having regard

Ato Sections 15 and 16 of the Hindu Succession Act, 1956, it isclear that the appellant cannot claim any right. [Para 33] [1166-H; 1167-A-B]

1.6 It is not in dispute that in the dying declaration dated27.01.2008, there is no certificate by the Doctor certifying thatBthe patient was conscious or that the patient was mentally orphysically fit to give the declaration. Undoubtedly, it is true thatthe certificate by Doctor about the patient being conscious andfit to give dying declaration would go long way in inspiringconfidence of the court. However, certification by the doctoris essentially rule of caution and therefore the voluntary andCtruthful nature of the declaration can be established otherwise.Though absence of the certificate by Doctor is not fatal to actupon dying declaration, but the requirement remains that theperson who records the dying declaration must ensure that thepatient was in fit condition, both mentally and physically, to giveDthe declaration. [Paras 37 and 38] [1168-E-G; 1169-A-B]1.7 In the present case, the controversial dying declarationdated 27.01.2008 implicating the appellant, was recorded by aPolice Officer. The Police Officer was performing his officialfunctions. There is no acceptable material to show that he wasEinterested in implicating the appellant or that he was showingany undue favour to PW1 or PW7. Even though, it may be truethat he may not have put questions to ascertain her condition,the declaration, which is seen made, sufficiently assures of thephysical and mental condition of the deceased to make thedeclaration. The appellant also proceeded on the basis that onF25.01.2008, the deceased was in condition to make thestatement. There is no case for the appellant that after24.01.2008 and 25.01.2008, the condition of the deceased tooka turn for the worse. The death took place only on the sixth dayafter making the declaration on 27.01.2008. Therefore, theGdeceased was in position to make the declaration. [Para 39][1169-F-H; 1170-A]

1.8 There is no material before the Court to hold that thedying declaration is creation of imagination of the deceased.Nothing is established by the appellant to show that the factsHwhich have been stated in regard to the physical places and

things spoken of by the deceased in regard to the rooms, etc.,do not match with the reality on the ground. [Para 40] [1170-C]

1.9 It is not correct that the statements made at thehospital on 24.01.2008 and to the Police Officer on 25.01.2008,are not dying declarations. Under Section 32 of the EvidenceAct any statement made by person as to the cause of his deathor to any circumstance of the transaction which resulted in hisdeath would be relevant. Once it is proved that such statementis made by the deceased then it cannot be brushed aside on thebasis that it is not elaborate or that it was not recorded in aparticular fashion. The principle that the statement is brief, wouldnot detract from it being reliable. Equally, when there aredivergent dying declarations, it is not the law that the court mustinvariably prefer the statement which is incriminatory and mustreject the statement which does not implicate the accused. Thereal point is to ascertain which contains the truth. [Para 41][1170-E-F]

1.10 The courts below were not in error in disregardingthe statement attributed to the deceased in the MLC dated24.01.2008 and the statement taken on the next day, i.e., on25.01.2008. The incident, admittedly, took place towards theevening of 24.01.2008. The appellant and the deceased weretaken by the Police in the PCR vehicle to the hospital. It is theproximity of the appellant, which apparently stood in the way ofthe deceased, disclosing the truth of the matter. The appellantand the deceased continued to be in the same hospital on25.01.2008 also. In this regard, in the dying declaration, reliedupon by the prosecution, the deceased has stated that as theappellant had extended threat to her, she could not give astatement on the very same day. Apparently, this means that shehas proceeded on the basis that the declaration made on27.01.2008 is the first dying declaration which she is making.She has, in other words, not treated the statement made on24.01.2008 at the time when she was admitted, as declaration.So also, the statement made on 25.01.2008, she was operatingunder the threat extended by her husband. [Para 57] [1175-H;1176-A-C]

1.11 The dying declaration dated 27.01.2008 is seenrecorded in Hindi. There is no case that the deceased was not

Afamiliar with Hindi and it can safely be concluded that the dyingdeclaration was recorded in language with which the deceasedwas familiar. [Para 45] [1172-B]

1.12 The dying declaration dated 27.01.2008 is fairlylengthy narration. It contains details about what happened on theBfateful day, in fairly graphic manner including details regardingthe place where it happened, the manner in which it happened,the specific role played by the appellant, even things (presenceof the motorcycle), the door being locked, are reflected. Evenreference was made to the relationship which the appellant washaving with his sister-in-law. [Para 46] [1172-C-D]C

1.13 Further, the motive of the appellant to kill thedeceased, has been stated by her to be that he had illicit relationswith his Bhabhi (sister-in-law). She has also spoken aboutdifferences which she had with her husband and the settlementwhich had taken place in the Panchayat. PW7-mother of theDdeceased has also spoken about the affair, which appellant hadwith his sister-in-law. Thus, the motive attributed to the appellantby the deceased, is not the figment of her imagination. She isvery coherent and clear in this regard. [Para 58] [1176-D]

1.14 In dying declaration dated 27.01.2008, the deceasedEspeaks of one boy, (PW24) neighbour coming inside by jumpingthe main gate and breaking the lock placed inside the main gatewith the help of hathi (handle) of the handpump. It is difficult tofind that the deceased could have given the detail about PW24doing what he did, only on the basis of any tutoring or promptingFby PW1 or PW7. Thus, this portion of the statement standsfortified by the corroborative evidence of PW24. [Para 59] [1176-E-H; 1177-A]

Laxman v. State of Maharashtra (2002) 6 SCC 710 -followed.

GKishan Lal v. State of Rajasthan AIR 1999 SC 3062 :[1999] 1 Suppl. SCR 517 ; Paniben (Smt) v. State ofGujarat (1992) 2 SCC 474 : [1992] 2 SCR 197 ;Kundula Bala Subrahmanyam and another v. State ofAndhra Pradesh (1993) 2 SCC 684 : [1993] 2 SCRH666 ; Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC

713 : [2004] 2 SCR 659 ; Sayarabano AliasSultanabegum v. State of Maharashtra (2007) 12 SCC562 : [2007] 2 SCR 354 ; Amol Singh v. State of M.P.(2008) 5 SCC 468 : [2008] 8 SCR 956 ; Heeralal v.State of M.P. (2009) 12 SCC 671 : [2009] 4 SCR 283;Lakhan v. State of M.P. (2010) 8 SCC 514 : [2010] 9SCR 705 ; Sher Singh v. State of Punjab (2008) 4 SCC265 : [2010] 9 SCR 705 - referred to.

2.1 There is evidence on record, both in the form of oraltestimony and documentary evidence, to suggest that there waskerosene kept in the premises. The can is found, the photographof the can is taken. It is also sent for forensic examination.There is reference to the smell of kerosene available in evidence.The very first document available, viz., the MLC is dated24.01.2008. In the same, it is clearly stated that there is smellof kerosene from the body of the deceased. In the secondstatement recorded by the Investigating Officer on the very nextday, i.e., on 25.01.2008, it is stated that the patient was unableto tell the cause of kerosene oil smell from her body. This is inregard to the statement by the appellant which has also cometo be recorded. [Paras 47, 48] [1172-E-G]2.2 So far as further evidence indicating presence ofkerosene oil is concerned, there is evidence of PW1 who speaksabout being told about pouring of kerosene oil by the appellantover the deceased. PW7-mother-in-law of the appellant statesthat her daughter told her while in the hospital that keroseneoil was kept behind in small container meant for storing grains.The appellant poured kerosene oil over her. He also sprinkledsome kerosene oil on himself also. She, no doubt, states thatshe had stated before the Police that she had no ration card, thatthey never used to purchase kerosene oil or never used to keepkerosene oil and the kerosene oil must have been purchasedfrom outside. She was, no doubt, confronted about such omissionin the statement. PW8 conducted the post-mortem. She doesnot, undoubtedly, note the smell of kerosene. However, thepost-mortem was conducted on 03.02.2008, almost ten days afterthe incident. [Para 48] [1172-G-H; 1173-A-B]

A2.3 PW-29 is the Investigating Officer. He deposes thatthe can of kerosene oil was lying and kerosene was lying spreadon all the sides of the can. He has spoken about seizing the burntmatchstick and matchbox. He reiterates that in the report, hehas mentioned about the smell of kerosene oil emanating fromBthe clothes seized by him. [Para 49] [1173-C]

2.4 PW30 is the Doctor who identified the handwriting ofthe doctor who had taken down the statement of the deceasedinter alia on 24.01.2008, stated that the patient/deceased wasunable to tell the cause of kerosene smell present on her body.CMore significantly, it was stated that the doctor who hadrecorded the statement dated 24.1.2008 also appended notethat patient is not giving proper history. [Para 50] [1173-D-E]

2.5 PW31, the Senior Scientific Assistant (Chemistry),C.F.S.L., stated that on chemical and gas chromatographicDexamination, Exhibits 1A, 1B, 2A, 2B, 2C, 2D and 2F (clothes)and Exhibit 3 were found to contain residue of kerosene oil.Residue of kerosene oil, diesel and petrol could not be detectedin Exhibit 4 (two burnt matchsticks) and Exhibit 5 (Scissors ofiron and copper). He further stated that only in case, in mixtureEof petrol and kerosene, if the quantity of kerosene is more, it willemanate smell of kerosene. The residue can remain even for aboutone year or so unless the article is placed in Sun and is not properlypreserved. [Para 51] [1173-G-H; 1174-A]

2.6 Overwhelming evidence relating to the presence of

Fkerosene starting with the can, kerosene being found by PW29on the spot near the can on his inspection on the same day, thepresence of kerosene residue on the clothing belonging bothto the deceased and the appellant, as found by the ScientificExpert, would clearly establish that kerosene was used incausing the fire. This completely fortifies the prosecution. ItGequally clearly rules out the case sought to be set up by theappellant that it was case of accidental fire which was broughtabout when the appellant was lighting his biri and leak fromthe motorbike causing the fire. As deposed by the ScientificExpert, the possibility of kerosene smell would be there only ifHkerosene content is more in the petrol. Secondly, the leak would

not have been of such an extent as to lead to the incident ofthis nature. [Para 52] [1174-D-F]

2.7 There is overwhelming evidence that the fire wascaused by the use of kerosene. In the statement, there is noreference to the appellant being drunk. Everything was normaltill the accidental fire erupted upon the motorcycle catching fire.Deceased states that the appellant was trying to extinguish thefire and his clothes also caught fire. The deceased, however,does not state that she went to extinguish the fire and therebysustained the burn injuries. In other words, the statement on25.01.2008 does not contain any reason as to how the deceasedcaught fire. There was no statement that she suffered theextensive (65 per cent) burn injuries when she tried to put outthe fire. Secondly, the version involves the motorcycle catchingfire. There are photographs of the motorcycle. It is only the partof the seat of the motorcycle which was burnt. In this regard, itis apposite to notice that PW14-Police Photographer hasdeposed about reaching the spot on 24.01.2008 at 09.00 P.M.and taking the photographs, inter alia, of the motorcycle.Statement of 25.01.2008 does not appear to indicate the causeof the burn injuries suffered by the deceased, for the reasonsstated above. This version also is incompatible with the presenceof the kerosene can which is proved by the evidence of PW29-Investigating Officer, PW-14-photographer and the photograph.The statements made on 24.01.2008 and 25.01.2008 will notexplain the cause of smell of kerosene emanating from the body,both of the deceased and from the appellant, as also the clothessmelling of kerosene. PW30 apparently spoke about the clothessmelling. That the appellant was unable to tell the cause ofkerosene smell from his body. It is found that kerosene smellwas present in the body of the patient. [Para 60] [1177-G-H;1178-A-D]

2.8 In the statement on 27.01.2008, the deceased hadspoken about the appellant coming drunk. He poured keroseneover the deceased. He also poured some kerosene on himself.The cause of fire was by lighting matchstick after pouring thekerosene. The deceased runs and trips over the handpump. Thepresence of the handpump is corroborated by the evidence of

APW24-neighbour. No doubt, the action of the appellant in pullingout the petrol pipe is also referred to by the deceased in thedying declaration dated 27.01.2008. The fire erupting near themotorcycle is, thus, explained in the declaration dated27.01.2008. It is here that the role of alcohol in the wholeincident, which must be borne in mind. [Para 61] [1178-E-F]B

2.9 The appellant suffering 40 per cent injuries on his face,neck and both upper limbs, was found compatible with the dyingdeclaration dated 27.01.2008 wherein the deceased hasexplained that when she tried to flee, the appellant caught hertrying to prevent her from running out. In the dying declaration,Cthe deceased has stated that the appellant caught fire when thefire erupted near the motorcycle as result of the pipe of thepetrol tank being taken out by the appellant. The case of theappellant is that the fire occurred when he had lit biri. He hadno case that the pipe of the petrol tank had been taken out

Dthereby causing the fire. But PW29-Investigating Officer, hasdeposed that the petrol pipe of the motorcycle had beendetached from the place where it should be. He has also statedthat in the inner room, can of kerosene oil was lying and thekerosene was lying spread on all the four sides of the can. There

is no reason to disbelieve PW29. The version, as projected inEthe declaration dated 27.01.2008, is clinchingly proved by thiscircumstance that kerosene was indeed the fuel used whichcaused the burn injuries and its position in the inner room iscompatible with the dying declaration dated 27.01.2008. [Para63] [1179-B-F]F

Case Law Reference

Para 26, 28A

[2010] 9 SCR 705referred to(2002) 6 SCC 710followed

Para 37

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 967 of 2015.

From the Judgment and Order dated 07.10.2013 of the HighCourt of Delhi at New Delhi in Criminal Appeal No. 757 of 2010.

D. B. Goswami, S. Gaurav Sasan, Dr. Sushil Balwada, Advs.for the Appellant.

S. S. Ray, T. A. Khan, B. V. Balaram Das, Advs. for theRespondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The appellant stands convicted under Sections 302 and 506of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC',for short) by the Trial court, and the appeal carried by him before theHigh Court being unsuccessful and is, therefore, before this Court.

2. Briefly, the case of the prosecution against the appellant is asfollows:

The deceased was married to the appellant in the year 1999. Hewas unemployed at that time. Later, he secured employment in theC.R.P.F.. He did not take his wife on the basis that he could not takeher far away. Wife continued to reside with the mother of the deceasedat her house. Appellant used to harass his wife and had illicit relationshipwith the wife of his brother. Panchayat was held. settlement wasarrived at, pursuant to which, after four years, when the appellant wastransferred to Delhi, he assured the mother of the deceased that hewill not harass his wife and he started residing at the house along withhis wife and mother-in-law. It is the further case of the prosecutionthat the appellant continued to have an affair with the wife of his brother.On 23.01.2008, the mother of the deceased went to the matrimonialhome of another daughter. On 24.01.2008, at about 06.00 P.M., theappellant came to the house under influence of liquor, and in short,poured kerosene oil upon his wife and also some kerosene oil overhimself and threw lighted matchstick on his wife. Initially, both, the

Aappellant and the deceased, were taken to the hospital. Initially, the wifegave statement which did not implicate the appellant. However, on27.01.2008, dying declaration was made by the deceased pointing thefinger of blame clearly at the appellant and attributing the act of pouringkerosene and setting her ablaze to him. Initially, First InformationReport was lodged on 27.01.2008 on the basis of the dying declarationBdated 27.01.2008 under Section 307 of the IPC, which was, upon thedeceased succumbing to the burn injuries, converted to Section 302 ofthe IPC. This is besides charge under Section 506 of the IPC forextending threat to his wife.

3. 31 witnesses were examined by the prosecution. After closureCof prosecution evidence, appellant was questioned under Section 313of the Code of Criminal Procedure, 1973 (hereinafter referred to as‘the Code’ for short).

FINDINGS BY THE TRIAL COURT

4. It is case where there are two dying declarations, viz., onemade on 24.01.2008 and another on 27.01.2008. In regard to thestatement on 24.1.2008 it is actually the history which is recorded inthe M.L.C. of the deceased and it is stated that it has noted history ofsustaining thermal burns when her husband was trying to ignite matchEstick for smoking; accidently fire erupted due to petrol leaking fromthe tank of the motorcycle as told by the patient herself. Patient gotburnt along with her husband. Patient is unable to tell the cause ofkerosene smell from her body.

5. The Trial Court noticed the contention that PW29-InvestigatingFOfficer admitted that, on 25.01.2008, the mother of the deceased alsomade statement on the lines of what her daughter had made whichappeared to clear the appellant of any wrong doing.

6. Commenting on PW10-Smt. Indrawati, the Court wadesthrough her evidence and found that the witness has reached the placeGafter the incident and seen both the deceased as well as the accusedin the burnt condition. She was not an eyewitness to the incident. Thesame was found true about Chhoto Devi-PW7-the mother of thedeceased. The statement is of no avail with regard to the dyingdeclaration made on 24.01.2008. We may advert to paragraph 49 inHregard to the first version:

“49. As per the first version, it was leaking of petrol pipe of themotorcycle, which was the cause of fire and sustaining of burninjuries by both the accused and the deceased, and in this regard,the testimony of PW-30 is very material. PW-30 Dr. ThakurThussu has stated that as per MLC Ex. PW-30/A of accusedJagbir and Ex.PW-30/B of deceased Santosh, the alleged historygiven was of thermal burns when the accused was trying to ignitethe matchstick for smoking and accidentally fire erupted andprobably due to nearby leaking of petrol tank, they got engulfedin fire, but at that very time, Dr. K.K. Sharma, who had examinedthem and who had left the hospital (and his present whereaboutscould not be ascertained and because of the same reason, requestwas sent to Medical Superintendent, Safdarjung Hospital, todepute any doctor or doctor or doctors conversant with thehandwriting and signature of Dr. K.K. Sharma and who candepose about the contents of the MLC. PW-30 Dr. ThakurThussu, Sr. Resident, Deptt. Of Burns and Plastic Surgery,Safdarjung Hospital, was called), in the MLC itself, the historywas disbelieved by the doctor, who has specifically mentionedthat both the husband and wife were unable to tell the cause ofkerosene oil emanating from their body and on examination, smellof kerosene was emanating from the body, and special note inthis regard was appended by Dr. K.K. Sharma that the patientis not giving proper history.”

7. The differentiation between smell of petrol and kerosene oilhas been explained by PW31-Senior Scientific Assistant (Chemistry).It was further found that the deceased had deep burns present overher face, neck, anterior trunk, lower part, both upper limbs, portions ofboth lower limbs. The study of the injuries ruled out sustaining burninjuries from leaking petrol of motorcycle as it was highly unlikelythat upper portion of the body will be burnt so as the fire travelled fromdownward to upward. Only very small quantity would have leakedout in case of the petrol leaking. The biri has not been recovered.Clothes were seized from the house which were in burnt condition andkerosene oil was present in the house immediately after the incidentand much before the recording of the dying declaration dated27.01.2008, demolished completely the defence of the appellant. Theappellant has not given any explanation in regard to the presence ofkerosene oil in the house or how the clothes contained residue of

CDE

Akerosene oil. The case set up by the appellant regarding the conspiracyof other sisters of the deceased and his brother-in-law with the motherof the deceased to deprive him of the property, is found to be frivolous.The argument that dying declaration dated 27.01.2008 was long one,and therefore, should not be relied upon, was rejected.

B8. Regarding the Investigating Officer not obtaining certificatefrom Doctor about the medical fitness of the deceased to make thedying declaration, it was found, not material. It was not case whereat any point of time, the deceased was declared unfit for the statement.No question was asked from PW30-the Doctor that considering thenature of the burn injuries and the medicines given to the deceased, itCwas not possible for her to give statement without being certified.MLC-Exhibit 30/B does not show that the patient is unfit to give astatement. Evidence of PWs 1, 7 and 29 are relied upon to repose faithin the dying declaration. No cross-examination was conducted in regardto PW29-Investigating Officer with reference to his going to the hospitalDon the basis of the call received from the hospital. Discrepancy in thetimings, as emerged from the testimony of PW29 and dying declarationNo. 20B, is overcome by the finding that timings will not be rememberedexactly. Regarding the inconsistency in evidence as to whether deceasedwas in the ward or in the Intensive Care Unit (ICU), assurance wasdrawn from the dying declaration wherein reference is made to the ICUEWard. The dying declaration was got recorded without noting as to whatis the statement to be made on the basis of call. PW1 and PW7 havesupported the recording of the dying declaration, being witnesses. Thetestimony of mother of the deceased-PW7 would reveal that thoughher daughter was under sedation, she was competent to make theFstatement. The first dying declaration dated 24.01.2008 was alsorecorded by the Investigating Officer without certificate issued by theDoctor. The evidence of Dinesh (neighbour) was found to corroboratethe dying declaration. The appellant was found guilty under Sections302 and 506 of the IPC and convicted thereunder. He was awardedsubstantive sentence of rigorous imprisonment for life and fine for theGoffence. Further, the appellant was also sentenced to rigorousimprisonment for two years for the offence under Section 506 of theIPC. Both the sentences were to run concurrently.

FINDINGS BY THE HIGH COURT

9. There are three dying declarations given by the victim. At about

09.30 P.M. on 24.01.2008, the first dying declaration was given in theform of history given by the patient to the Doctor. It was recorded inthe MLC. No role was attributed to the appellant. The history wasrecorded as one of sustaining thermal burns when her husband wastrying to ignite matchstick for smoking and accidentally fire erupteddue to the petrol leaking from the tank of the motorcycle. This is statedto be told by the patient herself. It was further recorded therein thatthe patient is unable to tell the reason for kerosene smell from her body.What is referred to as the second dying declaration and is recorded byPW10 in his case diary on 25.01.2008, is extracted by the High Court.The Court held:

“22. The second dying declaration of the victim was recordedby the Investigating Officer in his daily diary on 25.01.2008. Therelevant extract of this reads herein as under:-

“Time 01:31 P.M.. it is entered that I, the SI alongwithaccompanying Ct. Ram Kumar have come to the PoliceStation after investigation vide DD No. 50-A, dated 24/01/08. On the receipt of the call, I reached the place ofoccurrence i.e. H.No. RZ-40, Mataji Line, Sultan PuriRoad, (sic) School, Gopal Nagar, Najafgarh wheremany burnt clothes were lying in the gallery of thehouse. The seat of passion motorcycle bearing Regn.No. HR-14B-1992 was found burnt and one burnt creamcoloured jeans shirt was also lying behind themotorcycle. And one ladies" Kurta, one cardigan, asalwar, shawl were lying burnt near the front wheel ofthe motorcycle. The foul smell of kerosene oil wascoming from the whole house. The SHO arrived at thespot and after enquiry it was learnt that one JagbirSingh lived in the house as "gharjamai" (son-in-lawliving at the in-laws" home) alongwith his wife Santoshand mother-in-law Chhoti Devi. The mother-in-lawChhtoi Devi had gone to the matrimonial home of theiryounger daughter Rakesh at Rohtak. And as per theneighbourers, husband-wife were living all alone in thehouse and the motorcycle got fire due the leakage ofpetrol from the motorcycle. Jagbir works as sweeper inCRPF. G-91 Mobile Crime Team was called on wireless.

The photographs of the place of the occurrence weretaken by the Crime Team and all the burnt clothes andthe can of the Kerosene oil which was kept near thedrum in the interior room and lot of kerosene whichwas also lying outside and on the floor were taken intothe police possession as piece of evidence by meansof memo. Thereafter, I, the SI reached S.J. Hospitalafter receiving the information where Jagbir s/o Sh.Devi Singh and Santosh w/o Sh. Jagbir Singh wereadmitted vide MLC Nos. 17608/08 and 17609/08respectively. Jagbir was 45% burnt and Santosh was60% burnt. The doctor wrote in (sic…) that when Jagbirignited the match-stick for smoking, the motor-cyclecaught fire accidently as its petrol tank had beenleaking. The patient was unable to tell the cause ofkerosene oil smell from his body. Santosh Devi w/oJagbir Singh deposed that I reside with my husbandJagbir and mother Chhoti Devi in the house. Earlierthere had been some problem between me and myhusband. I had got married in the year 1999. But forthe last one year, I have been living with my husbandhappily. There is no such quarrel between us. Today on24/01/08 my mother had gone to the matrimonial homeof my younger sister Rakesh at Rohtak. My husbandJagbir came back in the evening from his duty assweeper in CRPF. We have had our dinner and werepreparing to go for sleep. I locked the gate while myhusband was smoking "Bidi" near the motorcycle. Allof sudden, the motorcycle caught fire. Jagbir wastrying to extinguish the fire and his clothes also caughtfire. Both of us screamed and shouted for help. Ourneighbours saved both of us by jumping the wall (of ourhouse). No one has done this intentionally. You haverecorded my statement and read over the same to me. Ihave heard the statement and the same is correct.

LTI of Santosh Devi

Thereafter, the statement of Jagbir Singh s/o Lt. Sh. DeviSingh was recorded who also gave the aforesaid

statement and Mrs. Chhoti Devi also deposed the sameand told that there was no dispute between both of themand they were living together happily. Both the husband-wife had caught fire because of the catching of the fireby the motorcycle due to the smoking "Bidi" by Jagbirand leakage of petrol from the motorcycle. No one hasintentionally done this. I do not suspect anyone. All thefacts were apprised to the SHO and the call was heldpending."

(Emphasis supplied)

10. Thereafter, the court referred to the dying declaration on27.01.2008, which we will refer to later on.

11. The first dying declaration is discarded by noting that it wasin the presence of her husband. PW30-the Doctor who was examinedto identify the signatures of another Doctor, viz., Dr. K. K. Sharmawho had actually prepared the MLC and who could not be examined,has specifically stated that the smell of spirit and kerosene is different.No possible explanation could be given as to why kerosene smell wasemanating from the body and clothes. The presence of the appellant/her husband inhibited the deceased from speaking the truth. Seconddying declaration, which was recorded at 01.30 P.M. on the next day25.01.2008, was also discarded for the same reason, viz., her husbandwas in the same hospital and it was recorded in his presence. The courtdiscussed the evidence of the Investigating Officer-PW29 who recordedthe third dying declaration. The court also discussed the contents ofthe dying declaration and finds support from the fact that the evidenceof PW29 is supported by PWs 1 and 7. The deceased was fullyconscious and well-oriented going by the MLC dated 24.01.2008. Hermental faculties to make statement, was never in challenge. Thedeceased, being fit to make the statement on 27.01.2008, it cannot bedoubted. The defence set up by the appellant was found to be palpablyfalse. The dying declaration was an answer found worthy ofacceptance. The kerosene can and also clothes were sent for scientificexamination and CFSL Report found that kerosene oil was detectedon the clothes of the appellant. No explanation from the appellant isforthcoming about kerosene. Site plan and also the photographs wererelied upon.

A12. The High Court found no merit in the appeal and dismissedthe same.

13. We have heard learned counsel for the appellant.

14. The learned counsel for the appellant would undoubtedlyemphasise that this is case where there are three dying declarations.BIn the first two dying declarations, which were given by the deceasedherself, no incriminatory role is attributed to the appellant. Rather, thecause of her catching fire is attributed to an accident generated by theappellant lighting his biri. It is submitted that there is evidence of PW1-husband of the sister of the deceased visiting the deceased at theChospital on 26.01.2008. It is on the very next day, i.e. 27.01.2008, as aresult of the tutoring and prompting by PW1, that the deceased comesup with completely different version in the dying declaration. Themother of the deceased-PW7 was also in the hospital. The theory ofconspiracy to sabotage the claim to the property is pressed into service.D15. In other words, the argument is painting the appellant as themurderer, his claim to the property would stand extinguished, thusenabling the other two daughters to claim exclusive right. In this regard,he would point out that PW29 has deposed that he went to the hospitalon 27.01.2008 and recorded the dying declaration on the basis of atelephone call which came from the hospital. He points out that theEcall did not come from any Doctor as ordinarily would have been thecase if the patient wanted to make the dying declaration but strangelyit came from his co-brother, viz., PW1. PW1 has admitted in hisevidence that he did indeed made the call to the Police to come andrecord the statement of the sister-in-law. Therefore, the dyingFdeclaration, in other words, is the brain child of PW1 in pursuance tothe conspiracy to oust the appellant from property rights. He next pointsout that the very case of homicide is irreconcilable with the appellanthimself suffering burn injuries to the extent of 40 per cent. In the dyingdeclaration, it is stated that after pouring kerosene on the deceased,the appellant poured less kerosene oil on himself. The medical evidenceGestablishes that the appellant suffered 40 per cent burns. referenceis made to the evidence of PW15 who is Police Constable workingwith the Police Control Room (PCR) as in cross-examination, she hasthis to state:

“It is correct that as per further proceedings mentioned inHEx.PW15/DA, it is mentioned that the husband was smoking

biri inside the room and lid of the petrol tank of motorcyclelying nearby was lying open as result of which the husbandgot fire and wife tried to extinguish the fire, she also caught fireand that Indrawati who is their relation had also stated so andboth husband and wife were conscious.”

16. He, therefore, would point out that the said statement, whichis recorded at the earliest point of time after the incident, corroboratesthe first and the second dying declaration and the case of accidentalburn injuries is clearly probablised.

17. The learned counsel for the State, on the other hand, wouldsubmit that it is not correct to characterise the first statement as dyingdeclaration. There is only one dying declaration and that dyingdeclaration was recorded on 27.01.2008. This dying declaration isbelievable. The case of tutoring is sought to be rebuffed. As far as theOfficer recording the dying declaration without the certificate from theDoctor is concerned, it is pointed out that the very fact that the dyingdeclaration was recorded when the patient was in the ward, itself showsthat her condition had not deteriorated to such an extent as otherwiseshe would have been in the ICU. PWs 1 and 7 have witnessed therecording of the dying declaration. They have stood by the dyingdeclaration and evidence of PW29-Investigation Officer. The dyingdeclaration dated 27.01.2008 brings out the truth. The statementscontained therein could not have been made up. Presence of keroseneis made conspicuous by being smelt by witnesses and also being foundon the clothes by PW31-Senior Scientific Assistant (Chemistry) and alsothe admitted fact that the can from which the kerosene was used beingalso sent for forensic report, squarely establishes prosecution case.

THE LAW RELATING TO DYING DECLARATION

18. Dying declaration is relevant evidence as declared bySection 32 of the Indian Evidence Act, 1872. distinction exists,however, between English Law and Indian Law in regard to dyingdeclaration. We may, in this regard, note the declaration of the lawcontained in Kishan Lalv. State of Rajasthan1 :

“18. Now we proceed to examine the principle of evaluation ofany dying declaration. There is distinction between theevaluation of dying declaration under the English law and that

1 AIR 1999 SC 3062

1156SUPREME COURT REPORTS

Aunder the Indian law. Under the English law, credence and therelevancy of dying declaration is only when person makingsuch statement is in hopeless condition and expecting animminent death. So under the English law, for its admissibility,the declarant should have been in actual danger of death at thetime when they are made, and that he should have had fullBapprehension of this danger and the death should have ensued.Under the Indian law the dying declaration is relevant whetherthe person who makes it was or was not under expectation ofdeath at the time of declaration. Dying declaration is admissiblenot only in the case of homicide but also in civil suits.Under theCEnglish law, the admissibility rests on the principle that senseof impending death produces in man's mind the same feelingas that of conscientious and virtuous man under oath. Thegeneral principle on which this species of evidence are admittedis that they are declarations made in extremity, when the partyis at the point of death, and when every hope of this world isDgone, when every motive to falsehood is silenced and the mindis induced by the most powerful considerations to speak only thetruth. If evidence in case reveals that the declarant has reachedthis state while making declaration then within the sphere ofthe Indian law, while testing the credibility of such dyingEdeclaration weightage can be given. Of course depending on otherrelevant facts and circumstances of the case.”

(Emphasis supplied)

19. But when declaration is made, either oral or in writing, bya person whose death is imminent, the principle attributed to MathewFArnold that “truth sits upon the lips of dying man” and no man willgo to meet his maker with falsehood in his mouth will come into play.The principles relating to dying declaration are no longer res integraand it would be apposite that we refer to the decision of this Court inPaniben (Smt)v. State of Gujarat2 wherein the concepts are summedGup as follows:

“(i) There is neither rule of law nor of prudence that dyingdeclaration cannot be acted upon without corroboration.(Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976SCC (Cri) 376 : (1976) 2 SCR 764])

H2 (1992) 2 SCC 474

(ii) If the Court is satisfied that the dying declaration is trueand voluntary it can base conviction on it, withoutcorroboration. (State of U.P. v. Ram Sagar Yadav [(1985)1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] ;Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983SCC (Cri) 169 : AIR 1983 SC 164] ).

(iii) This Court has to scrutinise the dying declaration carefullyand must ensure that the declaration is not the result oftutoring, prompting or imagination. The deceased hadopportunity to observe and identify the assailants and wasin fit state to make the declaration. (K. RamachandraCReddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC(Cri) 473 : AIR 1976 SC 1994] ).

(iv) Where dying declaration is suspicious it should not be actedupon without corroborative evidence. (Rasheed Beg v. Stateof M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )

(v) Where the deceased was unconscious and could never makeany dying declaration the evidence with regard to it is tobe rejected. (Kake Singh v. State of M.P. [1981 Supp SCC25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021]

(vi) dying declaration which suffers from infirmity cannot formthe basis of conviction. (Ram Manorath v. State of U.P.[(1981) 2 SCC 654 : 1981 SCC (Cri) 581])

(vii) Merely because dying declaration does not contain thedetails as to the occurrence, it is not to be rejected. (Stateof Maharashtra v. Krishnamurti Laxmipati Naidu [1980Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617])

(viii) Equally, merely because it is brief statement, it is not bediscarded. On the contrary, the shortness of the statementitself guarantees truth. Surajdeo Oza v. State ofBihar[1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979SC 1505] )

(ix) Normally the court in order to satisfy whether deceased wasin fit mental condition to make the dying declaration lookup to the medical opinion. But where the eye witness hassaid that the deceased was in fit and conscious state to

Amake this dying declaration, the medical opinion cannotprevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912])

(x) Where the prosecution version differs from the version asgiven in the dying declaration, the said declaration cannotBbe acted upon. (State of U.P. v. Madan Mohan [(1989) 3SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519])”

Also, in paragraph 19, it was held as follows:

“19. In the light of the above principles, we will consider the threedying declarations in the instant case and we will ascertain theCtruth with reference to all dying declarations made by thedeceased Bai Kanta. This Court in Mohanlal GangaramGehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC(Cri) 334 : AIR 1982 SC 839] held:

“where there are more than one statement in the nature ofDdying declaration, one first in point of time must bepreferred.”

Of course, if the plurality of dying declarations could be held tobe trust worthy and reliable, they have to be accepted.”

The problem of multiple dying declarations has engaged theEattention of this Court.

20. In Kundula Bala Subrahmanyam and anotherv. State ofAndhra Pradesh3, this Court held as follows:

“18. Section 32(1) of the Evidence Act is an exception to thegeneral rule that hearsay evidence is not admissible evidence andFunless evidence is tested by cross-examination, it is notcreditworthy. Under Section 32, when statement is made by aperson, as to the cause of death or as to any of the circumstanceswhich result in his death, in cases in which the cause of thatperson's death comes into question, such statement, oral or inGwriting, made by the deceased to the witness is relevant factand is admissible in evidence. The statement made by thedeceased, called the dying declaration, falls in that categoryprovided it has been made by the deceased while in fit mental

condition.A dying declaration made by person on the verge ofhis death has special sanctity as at that solemn moment, personis most unlikely to make any untrue statement. The shadow ofimpending death is by itself the guarantee of the truth of thestatement made by the deceased regarding the causes orcircumstances leading to his death. dying declaration, therefore,enjoys almost sacrosanct status, as piece of evidence, comingas it does from the mouth of the deceased victim. Once thestatement of the dying person and the evidence of the witnessestestifying to the same passes the test of careful scrutiny of thecourts, it becomes very important and reliable piece ofevidence and if the court is satisfied that the dying declaration istrue and free from any embellishment such dying declaration,by itself, can be sufficient for recording conviction even withoutlooking for any corroboration. If there are more than one dyingdeclarations then the court has also to scrutinise all the dyingdeclarations to find out if each one of these passes the test ofbeing trustworthy. The Court must further find out whether thedifferent dying declarations are consistent with each other inmaterial particulars before accepting and relying upon thesame…”

(Emphasis supplied)

21. In Lella Srinivasa Raov. State of A.P.4 , in the dyingdeclaration which was recorded by the Magistrate, there was nomention about appellant having treated the deceased with cruelty orhaving caused harassment. His name did not figure in the declaration.The deceased was in position to make the statement. Five minutesthereafter, another statement was recorded by the Head Constable.Allegations were made against the appellant. It related to the immediatecause which led to the deceased committing suicide. Court found thatthe witnesses including the father of the deceased did not support thecase of the prosecution that the deceased was treated with cruelty bythe accused. The Court did not act upon the second dying declaration.

22. In Sayarabano Alias Sultanabegumv. State of Maharashtra5,the offence involved was under Section 302 of the IPC. There was aquarrel between the appellant/accused and the deceased, during which,

4 (2004) 9 SCC 713

5 (2007) 12 SCC 562

Ait was the case of the prosecution that appellant poured kerosene fromthe lamp on the deceased which resulted in the deceased catching fireand finally succumbing to death. In the first dying declaration, thedeceased attributed her catching fire to an accident. She absolved allthe inmates of her husband family of any wrong doing. When the SpecialJudicial Magistrate was called on the next day for dying declaration,Bshe set up different version whereunder the accused was alleged tohave thrown the kerosene lamp on her and also that her husband usedto beat her after listening to his mother. The deceased was asked bythe Magistrate as to why she was changing the statement. Thedeceased told the Magistrate that she was told that she should not giveCany statement against family members and she reiterated that theappellant/ mother-in-law of the deceased had thrown the kerosene lampand she was burnt. The deceased died almost week thereafter. ThisCourt took the view that the judgment of this Court in Lella SrinivasaRaov. State of A.P.6 (supra), was distinguishable noticing that in thesaid case there was no other evidence, and this Court in SayarabanoDv. State of Maharashtra 2007 (12) SCC 562 also finally held as follows:

“16. In our opinion, criminal cases are decided on facts and onevidence rather than on case law and precedents. In the caseon hand, there is ample evidence to show that even prior to theincident in question, the appellant used to beat the deceased andEill-treat her. It is in the light of the said fact that other evidencerequires to be considered. In our view, both the courts were rightin relying upon the second dying declaration of the deceasedtreating it as true disclosure of facts by the deceased Halimabi.In the light of the evidence of parents of the deceased (PW 2Fand PW 3), Dr. Kishore (PW 6) and Special Judicial Magistrate(PW 5), it cannot be said that the courts below had committedany error and the conviction deserves to be set aside.”

23. In Amol Singhv. State of M.P.7, the High Court rejected theplea on the basis that there being more than one dying declaration andGon the basis that the extent of difference between the two declarationswas insignificant:

“13. Law relating to appreciation of evidence in the form of morethan one dying declaration is well settled. Accordingly, it is not

6 (2004) 9 SCC 713H7 (2008) 5 SCC 468

the plurality of the dying declarations but the reliability thereofthat adds weight to the prosecution case. If dying declarationis found to be voluntary, reliable and made in fit mental condition,it can be relied upon without any corroboration. The statementshould be consistent throughout. If the deceased had severalopportunities of making such dying declarations, that is to say, ifthere are more than one dying declaration they should beconsistent. (See Kundula Bala Subrahmanyam v. State of A.P.[(1993) 2 SCC 684 : 1993 SCC (Cri) 655] ) However, if someinconsistencies are noticed between one dying declaration andthe other, the court has to examine the nature of theinconsistencies, namely, whether they are material or not. Whilescrutinising the contents of various dying declarations, in such asituation, the court has to examine the same in the light of thevarious surrounding facts and circumstances.”

(Emphasis supplied)

24. The court finally, in the facts of the said case, took the viewthat the discrepancies made the last declaration doubtful and it wasfound unsafe to convict the accused.

25. In Heeralalv. State of M.P.8 , in the first dying declarationrecorded by the Tehsildar, the deceased stated clearly that she tried toset herself ablaze by pouring kerosene on herself. The second dyingdeclaration, however, contained the contrary statement. The Court held,inter alia, as follows:

“9. Undisputedly, in the first dying declaration recorded by NaibTahsildar, it has been clearly stated that she tried to set herselfablaze by pouring kerosene on herself, but in the subsequentdeclaration, recorded by another Nayab Tahsildar, contrarystatement was made.It appears that one dying declaration earlierwas made before the doctor. The trial court referred to theevidence of Dr. Chaturvedi who stated that the deceased wasadmitted on Bed No. 8, but the father of the deceased statedthat her daughter was admitted on some other bed number.

10. The trial court and the High Court came to abrupt conclusionson the purported possibility that the relatives of the accused mayhave compelled the deceased to give false dying declaration.

ANo material was brought on record to justify such conclusion.The evidence of the Nayab Tahsildar who recorded Ext. D-4was examined as PW 8. His statement was clear to the effectthat nobody else was present when he was recording thestatement. That being so, in view of the apparent discrepanciesin the two dying declarations it would be unsafe to convict theBappellant.”

(Emphasis supplied)

The Conviction of the appellant came to be set aside.

26. In Lakhanv. State of M.P.9, this Court was dealing with theCcase of death as result of burn injuries suffered by the wife. In thefirst dying declaration before the Magistrate, the deceased stated thatwhen she was cooking, kerosene oil had been put behind her back. Inthe next dying declaration, it was stated that the appellant/accusedbrought metal container full of kerosene and poured it on her bodyand the fire was lit by him and she was burnt. This Court, after goingDthrough all the decisions, held as follows:“21. In view of the above, the law on the issue of dyingdeclaration can be summarised to the effect that in case the courtcomes to the conclusion that the dying declaration is true andreliable, has been recorded by person at time when theEdeceased was fit physically and mentally to make the declarationand it has not been made under any tutoring/duress/prompting;it can be the sole basis for recording conviction. In such aneventuality no corroboration is required. In case there are multipledying declarations and there are inconsistencies between them,Fgenerally, the dying declaration recorded by the higher officerlike Magistrate can be relied upon, provided that there is nocircumstance giving rise to any suspicion about its truthfulness.In case there are circumstances wherein the declaration had beenmade, not voluntarily and even otherwise, it is not supported bythe other evidence, the court has to scrutinise the facts of anGindividual case very carefully and take decision as to which ofthe declarations is worth reliance.”

27. In the course of its discussion, the Court found that thesecond dying declaration was reliable inter alia on the ground that it

H9 (2010) 8 SCC 514

was corroborated by the earlier declaration made by the deceased toher parents who were examined as PW1 and PW3.

28. We may also notice the judgment in Sher Singhv. State ofPunjab10. This is also case of burn injuries suffered by the deceased/wife of the appellant. Upon being taken to the hospital, the PoliceOfficer recorded statement wherein it was stated that the fire wasaccidental and it happened when she was preparing tea. When her unclemet her on the next day, she informed that the accused had burnt her.On the very next day he moved an application for recording statementwhich came to be recorded. Yet another application was movedrequesting for re-examining the matter as the deceased had made awrong statement before the police officer initially and another statementwas accordingly recorded.

29. In the second dying declaration, deceased had stated that shewas burnt by her in-laws. It was stated that her father-in-law, mother-in-law and sister-in-law poured oil on her and burnt her. She furtherstated that her husband was not with her but in the next sentence, shestated that there were four. The fourth person was her husband. Shefurther stated that they had stated that unless she made wrongstatement, they would not take her to the hospital. It was thereafterthat she made third declaration. The Court went on to hold as follows:

“17. In the present case, the first dying declaration was recordedon 18-7-1994 by ASI Hakim Singh (DW 1). The victim did notname any of the accused persons and said that it was case ofan accident. However, in the statement before the court, HakimSingh (DW 1) specifically deposed that he noted that thedeclarant was under pressure and at the time of recording ofthe dying declaration, her mother-in-law was present with her.In the subsequent dying declaration recorded by the ExecutiveMagistrate Rajiv Prashar (PW 7) on 20-7-1994, she stated thatshe was taken to the hospital by the accused only on the conditionthat she would make wrong statement. This was reiterated byher in her oral dying declaration and also in the written dyingdeclaration recorded by SI Arvind Puri (PW 8) on 22-7-1994.The first dying declaration exonerating the accused persons madeimmediately after she was admitted in the hospital was underthreat and duress that she would be admitted in the hospital only

Aif she would give statement in favour of the accused personsin order to save her in-laws and husband. The first dyingdeclaration does not appear to be coming from person withfree mind without there being any threat. The second dyingdeclaration was more probable and looks natural to us. Althoughit does not contain the certificate of the doctor that she was in aBfit state of mind to give the dying declaration but the Magistratewho recorded the statement had certified that she was in aconscious state of mind and in position to make the statementto him. Mere fact that it was contrary to the first declarationwould not make it untrue.The oral dying declaration made toCthe uncle is consistent with the second dying declarationimplicating the accused persons stating about their involvementin the commission of crime. The third dying declaration recordedby the SI on the direction of his superior officer is consistent withthe second dying declaration and the oral dying declaration madeto her uncle though with some minor inconsistencies.The thirdDdying declaration was recorded after the doctor certified that shewas in fit state of mind to give the statement.”

(Emphasis supplied)

30. survey of the decisions would show that the principlesEcan be culled out as follows:

a. Conviction of person can be made solely on the basis ofa dying declaration which inspires confidence of the court;

b. If there is nothing suspicious about the declaration, nocorroboration may be necessary;F

c. No doubt, the court must be satisfied that there is no tutoringor prompting;

d. The court must also analyse and come to the conclusion thatimagination of the deceased was not at play in making theGdeclaration. In this regard, the court must look to the entiretyof the language of the dying declaration;

e. Considering material before it, both in the form of oral anddocumentary evidence, the court must be satisfied that theversion is compatible with the reality and the truth as canHbe gleaned from the facts established;

[K. M. JOSEPH, J.]

f. However, there may be cases where there are more thanone dying declaration. If there are more than one dyingdeclaration, the dying declarations may entirely agree withone another. There may be dying declarations whereinconsistencies between the declarations emerge. The extentof the inconsistencies would then have to be considered bythe court. The inconsistencies may turn out to bereconciliable.

g. In such cases, where the inconsistencies go to some matterof detail or description but is incriminatory in nature as faras the accused is concerned, the court would look to thematerial on record to conclude as to which dying declarationis to be relied on unless it be shown that they are unreliable;

h. The third category of cases is that where there are morethan one dying declaration and inconsistencies between thedeclarations are absolute and the dying declarations areirreconcilable being repugnant to one another. In one dyingdeclaration, the accused may not be blamed at all and thecause of death may be placed at the doorstep of anunfortunate accident. This may be followed up by anotherdying declaration which is diametrically opposed to the firstdying declaration. In fact, in that scenario, it may not be aquestion of an inconsistent dying declaration but dyingdeclaration which is completely opposed to the dyingdeclaration which is given earlier. There may be more thantwo.

i. In the third scenario, what is the duty of the court? Shouldthe court, without looking into anything else, conclude thatin view of complete inconsistency, the second or the thirddying declaration which is relied on by the prosecution isdemolished by the earlier dying declaration or dyingdeclarations or is it the duty of the court to carefully attendto not only the dying declarations but examine the rest ofthe materials in the form of evidence placed before the courtand still conclude that the incriminatory dying declaration iscapable of being relied upon?

AOUR CONCLUSION ON MULTIPLE DYINGDECLARATION

31. We would think that on conspectus of the law as laid downby this court, when there are more than one dying declaration, and inthe earlier dying declaration, the accused is not sought to be roped inBbut in the later dying declaration, summersault is made by thedeceased, the case must be decided on the facts of each case. Thecourt will not be relieved of its duty to carefully examine the entiretyof materials as also the circumstances surrounding the making of thedifferent dying declarations. If the court finds that the incriminatorydying declaration brings out the truthful position particularly inCconjunction with the capacity of the deceased to make such declaration,the voluntariness with which it was made which involves, no doubt, rulingout tutoring and prompting and also the other evidence which supportthe contents of the incriminatory dying declaration, it can be acted upon.Equally, the circumstances which render the earlier dying declaration,Dworthy or unworthy of acceptance, can be considered.

CONSPIRACY

32. It is strenuously argued before us by the learned counsel forthe appellant that the dying declaration dated 27.01.2008 is the resultof conspiracy. PW7-the mother-in-law of the appellant is the owner ofEthe property. She is widow. She had three daughters, one of whomwas the deceased. The other two daughters were married. PW1 is thehusband of one of the daughters. It was to eliminate the chance ofappellant succeeding to the property that PW1-the co-brother of theappellant visits the hospital where the deceased was admitted. She isFtutored. The result of tutoring is the controversial declaration dated27.01.2008. This fact receives support from the admission made byPW1 that it was he who made the call to the Police Officer, viz., PW29,and PW29, without any call from the hospital authorities, came andrecorded the dying declaration. No doubt, the cross-examination of thedeposition of PW7-mother of the deceased shows her as witnessGwhose deposition exposes omissions with reference to her statementto the Police. Likewise, there are certain omissions brought out in theevidence of PW1. But for reasons, as stated hereinafter, it would notbe fatal.

33. The Trial Court has brushed aside this contention as frivolous.HThe property belonged to PW7-mother-in-law of the appellant. It is

inconceivable how the appellant would have any right either during herlifetime or even upon her dying intestate to get the property under theHindu Succession Act, 1956. Having regard to Sections 15 and 16 ofthe Hindu Succession Act, 1956, it is clear that the appellant cannotclaim any right. No doubt, it is always open to the person to bequeaththe property. Therefore, we would think that the submission in this regardis totally ill-founded.

THE DYING DECLARATOIN DATED 27.01.2008

34. The dying declaration dated 27.01.2008 reads as hereunder:

“I reside at my parental house along with my mother ChhpotoDevi and husband Jagbir Singh. My marriage took place in year1999. In the meanwhile, for about four years, there weredifferences between me and my husband, after settlement tookplace in Panchayat, I along with my husband had been residingin my parental house.

On 24.01.2008 in the afternoon, my mother left for matrimonialhome of Rakesh at Rohtak. My husband Jagbir works as aSweeper in CRPF, who came from his duty at about 6 p.m. in adrunken position and said to me. “You want to live with me”. Isaid ‘Yes’, then Jagbir took me to big room and picket up a‘can’ of kerosene oil and poured kerosene oil upon me. Hepoured kerosene oil upon me and poured less kerosene oil uponhim. Then, I got myself free from the clutches of Jagbir and rantowards small room, and he came to me after following me,and then he ignited matchstick and threw it upon me, andimmediately my clothes caught fire. After that when I, in orderto save myself, ran towards main gate, he caught me from behindas result, I fell down near handpump, which was installed atthe house. Thereafter, my husband brought out the pipe of petroltank of the motorcycle, which was lying in the Chowk, as resultof which fire erupted near the motorcycle, and Jagbir also caughtfire and when I raised hue and cry to save, the one boy namelyDinesh Jain, who resides in the neighbourhood, came inside byjumping the main gate and broke the lock placed inside the maingate with the help of ‘Hathi’ of the handpump. Then all theneighbourers saved me and Jagbir while burning. As my husbandhad extended threat to me, I could not give my statement on thesame very day. My husband has tried to kill me by pouring

DEF

Akerosene oil upon me because of the reason that he has illicitrelations with his ‘Bhabhi’ namely Babita. You have recordedmy statement in presence of my mother Chhoto Devi and my‘Jija’ Vinod, which I have been read over and is correct.”

PHYSICAL AND MENTAL CONDITION OF DECEASED

35. We have noticed the contents of the MLC concerning thedeceased. Her condition was characterised as critical. She had suffereddeep burns. The injuries were understood as dangerous. The patient,no doubt, died only on 02.02.2008, i.e., on the ninth day after admissionon 24.01.2008.C

36. As far as the dying declaration made on 27.01.2008 isconcerned, particularly, when Doctors were near at hand, theInvestigating Officer ought to have taken the caution of obtaining acertificate after the Doctor put questions to the patient for ascertainingher condition. It is equally true that declaration does not appear to beDpreceded by questions put by the Investigating Officer to the deceasedfrom which he could ascertain details from which he could havereceived verification about her condition.

37. The first question, one must bear in mind, is whether thedeceased was in physical and mental condition to make dyingEdeclaration. It is not in dispute that in the dying declaration dated27.01.2008, there is no certificate by the Doctor certifying that thepatient was conscious or that the patient was mentally or physically fitto give the declaration. The patient was, in fact, admittedly lying in thehospital. Even in the narrative of the dying declaration, there are noFquestions seen put by PW29 to ascertain her condition. Undoubtedly, itis true that the certificate by Doctor about the patient being consciousand fit to give dying declaration would go long way in inspiringconfidence of the court. However, the Constitution Bench in Laxman11v. State of Maharashtra, has held as follows:

G“……Where it is proved by the testimony of the Magistrate thatthe declarant was fit to make the statement even withoutexamination by the doctor the declaration can be acted uponprovided the court ultimately holds the same to be voluntary andtruthful. certification by the doctor is essentially rule of

H11 (2002) 6 SCC 710

caution and therefore the voluntary and truthful nature of thedeclaration can be established otherwise.”

(Emphasis supplied)

38. We can proceed on the basis that even absence of thecertificate by Doctor is not fatal to act upon dying declaration.However, the requirement remains that the person who records thedying declaration must ensure that the patient was in fit condition,both mentally and physically, to give the declaration.

39. Turning to the facts of this case, the following features aremost important:

A. The patient was brought to the hospital on 24.01.2008 at about09.30 P.M. where MLC was recorded. The MLC specificallyrecords that the patient was conscious, oriented, follows verbalcommand and able to speak. This material undoubtedly wouldshow that as on 24.01.2008 at 09.30 P.M., the patient was fullyconscious and oriented. In fact, the statement, which is madeby her/deceased, is sought to be made use of by the appellanthimself as dying declaration. If that is so, it would be illogicalto not proceed on the basis that the patient was capable ofmaking dying declaration. Deceased also made statement at01.30 P.M. on 25.01.2008 which is the next day. Again, it wasrelied upon by the appellant himself. This means that the appellantis also proceeding on the basis that on 25.01.2008, the deceasedwas in condition to make the statement.

B. It is on 27.01.2008 that the controversial dying declaration ismade implicating the appellant. It is recorded by Police Officer.We have set out the entirety of the dying declaration. We haveto undoubtedly proceed on the basis that the Police Officer wasperforming his official functions. There is no acceptable materialto show that he was interested in implicating the appellant or thathe was showing any undue favour to PW1 or PW7. Even though,it may be true that he may not have put questions to ascertainher condition, the declaration, which is seen made, in our view,sufficiently assures us of the physical and mental condition ofthe deceased to make the declaration. In this regard, we maynotice that there is no case for the appellant that after 24.01.2008and 25.01.2008, the condition of the deceased took turn for

1170SUPREME COURT REPORTS

the worse. It is further important to notice that the death tookplace only on the sixth day after making the declaration on27.01.2008. Therefore, we are of the considered opinion that thedeceased was in position to make the declaration.

WHETHER DECLARATION BETRAYS IMAGINATION LETBLOOSE?

40. However, question which would arise is whether thedeclaration was vitiated, it being tutored, prompted and result of herimagination running wild. Taking the last point first, namely, that thedying declaration must not be the figment of the imagination of theCdeceased, nothing is established by the appellant to show that the factswhich have been stated in regard to the physical places and thingsspoken of by the deceased in regard to the rooms, etc., do not matchwith the reality on the ground. In fact, there is no material before us tohold that the dying declaration is creation of her imagination.

DWHETHER STATEMENTS MADE ON 24.01.2008 AND25.01.2008 ARE DYING DECLARATION?

41. We are not much impressed by the contention of the Statethat the statements made at the hospital on 24.01.2008 and to the PoliceOfficer on 25.01.2008, are not dying declarations. Under Section 32 ofEthe Evidence Act any statement made by person as to the cause ofhis death or to any circumstance of the transaction which resulted inhis death would be relevant. Once it is proved that such statement ismade by the deceased then it cannot be brushed aside on the basisthat it is not elaborate or that it was not recorded in particular fashion.We have already noted that the principle that the statement is brief,Fwould not detract from it being reliable. Equally, when there aredivergent dying declarations it is not the law that the court mustinvariably prefer the statement which is incriminatory and must rejectthe statement which does not implicate the accused. The real point isto ascertain which contains the truth.

GFURTHER ANALYSIS

42. On 24.01.2008, the appellant and the deceased suffered burninjuries. call was made to the Police Control Room. PW22-PoliceConstable deposed about taking the appellant and the deceased to thehospital. Investigation Officer-PW29 has spoken about immediatelyHcoming to the site of the incident. He states he made inquiries. He stayed

there for about two hours. It is not in the region of dispute that thedeceased and the appellant, who had suffered the injuries, were in thehospital, viz., the Safdarjung Hospital. PW13-ASI, has deposed aboutresponding to the call received, inspecting the spot on 24.01.2008.Photographs were got taken. PW14-the Police Photographer has beenexamined. He speaks about going to the site on 24.01.2008 at about09.00 P.M.. He took nine photographs. Two of the photographs werewashed out. He has produced the negatives. He speaks aboutphotographs of plastic can as also the matchstick. On the MLC of thedeceased, the time of arrival is shows as 09.30 P.M.. It is further notedthat the patient was not giving proper history. Thereafter, it is stated,alleging case of accidental fire when husband was trying to ignitematchstick for smoking probably due to nearby bike leaking petrol tank.It is stated, as told by patient self. Patient got burn injury with herhusband. It was further stated, patient unable to tell the cause ofkerosene smell from her body. She was brought to the casualty by thePCR Van. She had deep burns present over her face, neck, anteriortrunk, lower part, both upper limbs, portions of both lower limbs. It isfurther stated that patient is very critical. However, it is written, patientis conscious, oriented, follows verbal command, able to speak. It is alsostated, kerosene smell present in body of the patient. The nature ofthe injuries was classified as ‘dangerous’. The Doctor is Dr. K.K.Sharma. It is thereafter that on the next day on 25.01.2008 at 01.30P.M., statement was given to the Investigating Officer by thedeceased which we have already extracted. It is thereafter that thedying declaration dated 27.01.2008 (extracted above) came to berecorded.

43. It is found by two courts to be witnessed by PW1-the co-brother of the appellant and PW7-the mother-in-law of the appellant.PW29 is the Police Officer who has recorded the statement. He hasalso deposed that on receiving call, which is no doubt, call made byPW1, he had come to the hospital and recorded the statement.

44. Let us look at the circumstances emerging from the facts.There can be only two possible causes for fire which finally resultedin the death of the deceased. It is either accidental or homicidal. If it isfound to be accidental, certainly, it would rule out homicide. Theconverse is also true.

ALANGUAGE IN WHICH DYING DECLARATOINRECORDED

45. The dying declaration dated 27.01.2008 is seen recorded inHindi. There is no case that the deceased was not familiar with Hindiand we can safely conclude that the dying declaration was recorded inBa language with which the deceased was familiar. There can be nodoubt in regard to the same.

THE DYING DECLARATION IS DETAILED NARRATIVE

46. The dying declaration dated 27.01.2008 is fairly lengthyCnarration. It contains details about what happened on the fateful day,viz., 24.01.2008 in fairly graphic manner including details regardingthe place where it happened, the manner in which it happened, thespecific role played by the appellant, even things (presence of themotorcycle), the door being locked, are reflected. Even reference wasmade to the relationship which the appellant was having with his sister-Din-law.

THE SMELL OF KEROSENE

47. There is evidence on record, both in the form of oraltestimony and documentary evidence, to suggest that there wasEkerosene kept in the premises. The can is found, the photograph of thecan is taken. It is also sent for forensic examination.

48. There is reference to the smell of kerosene available inevidence. The very first document available, viz., the MLC is dated24.01.2008. In the same, it is clearly stated that there is smell ofFkerosene from the body of the deceased. In the second statementrecorded by the Investigating Officer on the very next day, i.e., on25.01.2008, it is stated that the patient was unable to tell the cause ofkerosene oil smell from her body. This is in regard to the statement bythe appellant which has also come to be recorded. As far as furtherevidence indicating presence of kerosene oil is concerned, there isGevidence of PW1 who speaks about being told about pouring of keroseneoil by the appellant over the deceased. PW7-mother-in-law of theappellant states that her daughter told her while in the hospital thatkerosene oil was kept behind in small container meant for storinggrains. The appellant poured kerosene oil over her. He also sprinkledHsome kerosene oil on himself also. She, no doubt, states that she had

stated before the Police that she had no ration card, that they neverused to purchase kerosene oil or never used to keep kerosene oil andthe kerosene oil must have been purchased from outside. She was, nodoubt, confronted about such omission in the statement. PW8 conductedthe post-mortem. She does not, undoubtedly, note the smell of kerosene.But here we cannot ignore the submission of the counsel for the Statethat post-mortem was conducted on 03.02.2008, almost ten days afterthe incident.

49. PW-29 is the Investigating Officer. He deposes that the canof kerosene oil was lying and kerosene was lying spread on all the sidesof the can. He has spoken about seizing the burnt matchstick andmatchbox. He reiterates that in the report, he has mentioned about thesmell of kerosene oil emanating from the clothes seized by him.

50. PW30 is the Doctor who identified the handwriting ofDr. K. K. Sharma who took down the statement of the deceased interalia on 24.01.2008. He says that on 24.01.2008, Dr. K. K. Sharmaalso examined the deceased with alleged history of sustaining thermalburns when patient's husband was trying to ignite matchstick forsmoking and accidentally fire erupted, probably due to nearby bikeleaving petrol tank, as told by the patient by herself. He also says thatpatient got burnt along with her husband and was unable to tell the causeof kerosene smell present on her body. More significantly, it is stated,Dr. K.K. Sharma also appended note that patient is not giving properhistory. In the cross-examination, suggestion was made that since spiritwas used in the hospital, the Doctor may have been undermisapprehension that kerosene oil was present on the body. Thissuggestion was denied as incorrect by PW30 and he went on to saythat even the smell of spirit and kerosene is different. It may be noticedthat the suggestion is not that the Doctor was confused between thesmell of kerosene and petrol. Though, PW30 goes on to state thatkerosene oil is the product of petroleum. PW30 also denied as incorrecta foul smell was wrongly treated as kerosene smell.

51. PW31 is the Senior Scientific Assistant (Chemistry), C.F.S.L..He has stated that on chemical and gas chromatographic examination,Exhibits 1A, 1B, 2A, 2B, 2C, 2D and 2F and Exhibit 3 were found tocontain residue of kerosene oil. Residue of kerosene oil, diesel and petrolcould not be detected in Exhibit 4 and Exhibit 5. He further states asfollows “only in case, in mixture of petrol and kerosene, if the

Aquantity of kerosene is more, it will emanate smell of kerosene. Theresidue can remain even for about one year or so unless the articleis placed in Sun and is not properly preserved”.

52. Exhibit 1A, which is found containing the residue of keroseneoil, is brown colour shirt. Exhibit 1B is the blue colour jeans. ExhibitB2A, which is found to contain kerosene oil, is printed scarf with blackborder. Exhibit 2B is the glittering printed shawl partially burnt. Exhibit2C which again is found to contain residue of kerosene oil is mustardcolour cardigan pieces which were partially burnt. Exhibit 2D is theyellow colour cloth piece stated to be kurta in semi-burnt condition.Exhibit 2F is green colour partially burnt cloth stated to be the bra. ItCalso contains residue of kerosene oil. Exhibit 4 consists of two burntmatchsticks which did not contain kerosene oil, diesel or petrol. This isnot inconsistent with the case of kerosene being used in the mannercanvassed by the prosecution. Exhibit 5 contains scissors of iron andcopper metal. Overwhelming evidence relating to the presence ofDkerosene starting with the can, kerosene being found by PW29 on thespot near the can on his inspection on the same day, the presence ofkerosene residue on the clothing belonging both to the deceased andthe appellant, as found by the Scientific Expert, would clearly establishthat kerosene was used in causing the fire. This completely fortifiesthe prosecution. It equally clearly rules out the case sought to be setEup by the appellant that it was case of accidental fire which wasbrought about when the appellant was lighting his biri and leak fromthe motorbike causing the fire. As deposed by the Scientific Expert,the possibility of kerosene smell would be there only if kerosene contentis more in the petrol. Secondly, we must also remember that the leakFwould not have been of such an extent as to lead to the incident of thisnature.

OTHER CIRCUMSTANCES

53. As against this, we may also examine what circumstancescan be culled out in favour of the appellant. In the first two statements,Gwhich have been made by the deceased to the Police, the blame isplaced at the doorstep of an unfortunate accident, which the appellantwhile trying to light his biri and the leak from the motorcycle, caused.This version is repeated in the statement to the Police on 25.01.2008also. PW1 states, and it is not disputed by the counsel for the State,Hthat the deceased had put her footmark in the dying declaration dated

27.01.2008. PW29, however, speaks about the thumb impression. Thisis apparently lapse of memory of the Officer.

54. Coming to tutoring and prompting, there is no doubt that it ison PW1-the co-brother of the appellant informing the Police Officer,the Police Officer-PW29 came on 27.01.2008 and took down thedeclaration. It is true that the presence of PW1 and PW7, at the timeof making the dying declaration, cannot be doubted. Their proximitywith the deceased, before PW29 came to take the declaration, can beeasily assumed.

55. It is double-edged sword. On the one hand, if the PoliceOfficer recording the statement was to call somebody else as witness,when the mother and the other relatives are near at hand, it can bechallenged on the ground that it is unnatural. On the other hand, if suchclose relatives are made witnesses and it turns out later on that caseis set up that they had an interest in the declaration being made in aparticular manner, again, the prosecution would be in trouble. In thiscase, however, the nature of the case set up by the appellant to bringthe dying declaration under cloud, on account of the interest shownby PW1, is the conspiracy theory mainly to prevent the appellant fromsucceeding to the property. We have already dealt with the same andfound that the said version is totally unacceptable. If that be so, in thefacts of this case, we cannot read much into the presence of PW1playing role he did, namely, calling the Police Officer and being awitness in the dying declaration. PWs 1 and 7 were witnesses to thedying declaration. They have spoken about the dying declaration andabout it being recorded by PW29.

56. The question then arises about the fact of the previousstatements which have been attributed to the deceased contained inthe MLC dated 24.01.2005 and in the statement of the deceasedrecorded on 25.01.2008. The view taken by the courts is that thedeceased and the appellant were admitted in the same hospital, thepresence of the appellant would have come in the way of the deceasedspeaking of the truth.

57. We are of the view that the courts below were not in errorin disregarding the statement attributed to the deceased in the MLCdated 24.01.2008 and the statement taken on the next day, i.e., on25.01.2008. The incident, admittedly, took place towards in the eveningof 24.01.2008. The appellant and the deceased were taken by the Police

Ain the PCR vehicle to the hospital. It is the proximity of the appellant,which apparently stood in the way of the deceased, disclosing the truthof the matter. The appellant and the deceased continued to be in thesame hospital on 25.01.2008 also. In this regard, in the dying declaration,relied upon by the prosecution, the deceased has stated that as theappellant had extended threat to her, she could not give statement onBthe very same day.Apparently, this means that she has proceeded onthe basis that the declaration made on 27.01.2008 is the first dyingdeclaration which she is making. She has, in other words, not treatedthe statement made on 24.01.2008 at the time when she was admitted,as declaration. So also, the statement made on 25.01.2008, she wasCoperating under the threat extended by her husband.58. Further, the motive of the appellant to kill her, has been statedby her to be that he had illicit relations with his Bhabhi (sister-in-law).She has also spoken about differences which she had with her husbandand the settlement which had taken place in the Panchayat. PW7-motherDof the deceased has also spoken about the affair, which appellant hadwith his sister-in-law. Thus, the motive attributed to the appellant bythe deceased, is not the figment of her imagination. She is very coherentand clear in this regard.

59. In dying declaration dated 27.01.2008, she speaks of one boy,

Eviz., Dinesh Jain, neighbour coming inside by jumping the main gateand breaking the lock placed inside the main gate with the help of hathi(handle) of the handpump. Dinesh Jain has been examined as PW24.He states that on 24.07.2008, at about 08.00 P.M., he heard the soundof loud cries. He saw the appellant and the deceased both engulfed infire. He tried to push the gate of the house of PW7 but it could not beFopened. He climbed the wall. He found that the gate was locked frominside. After reaching inside the house, he found the handpump in thehouse. He pulled down the handle, and with it, broke open the lock.By the time he came out of the house, certain persons had gatheredthere. In the cross-examination, he says that Police did not record hisGstatement either on the date of the incident nor on any other date. Amotorcycle was lying seen near the handpump. He was unable to tellthe number of rooms in the house. It is for the first time that he is goingthere. He did not try to extinguish the fire. The handle of the handpumpcould be removed easily as there was no nut and only nail was there.It is difficult to find that the deceased could have given the detail aboutHPW24 doing what he did only on the basis of any tutoring or prompting

by PW1 or PW7. Thus, this portion of the statement stands fortifiedby the corroborative evidence of PW24.

60. Let us also examine the content of the actual case of thedefence as is sought to be established through the statement in the MLCdated 24.01.2008 and the statement on 25.01.2008. The case set up inthe MLC is that deceased suffered burns when the appellant tried toignite matchstick for smoking and the fire erupted due to petrol leakingfrom the tank of the motorcycle. As already noted, there is no smell ofpetrol. However, what is to be noted is the presence of kerosene. Infact, in the very statement, which is ascribed to the deceased on24.01.2008, it is recorded that the deceased was unable to explain thecause of kerosene smell from her body. This, apparently, shows thatthe deceased was hoping that she would survive, and if she explainedthe cause of the smell of the kerosene, necessarily implicating theappellant, the chance of her married life surviving would come to anend. As already noted, there is note of Dr. K. K. Sharma that thepatient was not giving proper history. There is also the aspect of thethreat explained. Whether it is her desire or the threat, both preventedthe disclosure of the truth. In the statement of 25.01.2008, it is statedthat the deceased deposed that she resides with the appellant andmother. Earlier, there had been some problem between the appellantand the deceased. She was since last one year living with the appellanthappily. There is no such quarrel between them. Mother had gone on24.01.2008 for matrimonial home of Rakesh, younger sister, at Rohtak.Appellant came back in the evening. They had dinner and werepreparing to go for sleep. She locked the gate while the appellant wassmoking biri near the motorcycle. All of sudden, the motorcyclecaught fire. Appellant was trying to extinguish the fire and his clothesalso caught fire. Both of them screamed. Neighbours saved both ofthem. No one had done this intentionally. The above case is foundedon premise which eliminates the possibility of kerosene. We have,however, noted that there is overwhelming evidence that the fire wascaused by the use of kerosene. In the statement, there is no referenceto the appellant being drunk. Everything was normal till the accidentalfire erupted upon the motorcycle catching fire. Deceased states thatthe appellant was trying to extinguish the fire and his clothes also caughtfire. The deceased, however, does not state that she went to extinguishthe fire and thereby sustained the burn injuries. In other words, thestatement on 25.01.2008 does not contain any reason as to how the

Adeceased caught fire. There was no statement that she suffered theextensive (65 per cent) burn injuries when she tried to put out the fire.Secondly, the version involves the motorcycle catching fire. There arephotographs of the motorcycle. It is only the part of the seat of themotorcycle which was burnt. In this regard, it is apposite to notice thatPW14-Police Photographer has deposed about reaching the spot onB24.01.2008 at 09.00 P.M. and taking the photographs, inter alia, of themotorcycle. Statement of 25.01.2008 does not appear to indicate thecause of the burn injuries suffered by the deceased, for the reasonsstated above. This version also is incompatible with the presence ofthe kerosene can which is proved by the evidence of PW29-CInvestigating Officer, PW-14-photographer and the photograph. Thestatements made on 24.01.2008 and 25.01.2008 will not explain the causeof smell of kerosene emanating from the body, both of the deceasedand from the appellant, as also the clothes smelling of kerosene. PW30apparently spoke about the clothes smelling (MLC recorded by Dr. K.K.Sharma). That the appellant was unable to tell the cause of keroseneDsmell from his body. It is found that kerosene smell was present in thebody of the patient.61. It must be remembered that in the statement on 27.01.2008,the deceased had spoken about the appellant coming drunk. He pouredkerosene over the deceased. He also poured some kerosene on himself.EThe cause of fire was by lighting matchstick after pouring the kerosene.The deceased runs and trips over the handpump. The presence of thehandpump is corroborated by the evidence of PW24-neighbour. Nodoubt, the action of the appellant in pulling out the petrol pipe is alsoreferred to by the deceased in the dying declaration dated 27.01.2008.FThe fire erupting near the motorcycle is, thus, explained in thedeclaration dated 27.01.2008. It is here that the role of alcohol in thewhole incident, which must be borne in mind.

62. In the declaration dated 27.01.2008, it is true that the deceasedstates that the appellant poured less kerosene oil upon himself. It mustbe, at once, remembered that deceased had stated that the appellantGhad come on the said day in the drunken position. The appellant's actin bringing out the pipe of the petrol tank of the motorcycle resulting infire erupting and him also catching fire, does establish that fire did eruptnearthe motorcycle. What the deceased has stated is compatible withthe motorcycle itself not being burnt as such which is in accord withHthe evidence.

63. As to why the appellant would bring out the pipe of the petroltank, is one question which may require consideration. The Trial Courtholds that it was in order to show it to be an accident, that he broughtout the petrol pipe and took the defence that because of the leakingpipe, the fire engulfed and both of them caught fire, which defence wasfound absolutely improbable. The High Court, in the impugned order,on the other hand, would state that the appellant suffered 40 per centinjuries on his face, neck and both upper limbs, was found compatiblewith the dying declaration dated 27.01.2008 wherein the deceased hasexplained that when she tried to flee, the appellant caught her trying toprevent her from running out. It is how the burn injuries occurred onhis face and upper trunk and upper limbs. It is true, question mayarise that if this version is accepted and the appellant caught fire fromcatching the deceased from behind, why would he pull out the petrolpipe when both of his upper limbs (hands) had caught fire. In the dyingdeclaration, the deceased has stated that the appellant caught fire whenthe fire erupted near the motorcycle as result of the pipe of the petroltank being taken out by the appellant. It is to be remembered that thecase of the appellant is that the fire occurred when he had lit biri.He had no case that the pipe of the petrol tank had been taken out-thereby causing the fire. But PW29Investigating Officer, visited thesite on 24.01.2008, has deposed that the petrol pipe of the motorcyclehad been detached from the place where it should be. As alreadynoticed, he has also stated that in the inner room, can of kerosene oilwas lying and the kerosene was lying spread on all the four sides ofthe can.We have no reason to disbelieve PW29 when he speaks aboutkerosene oil lying in the inner room and the can also. The version, asprojected in the declaration dated 27.01.2008, is clinchingly proved bythis circumstance that kerosene was indeed the fuel used which causedthe burn injuries and its position in the inner room is entire compatiblewith the dying declaration dated 27.01.2008.

64. In the above facts and circumstances, we see no ground tointerfere. The appeal will stand dismissed. Since, appellant has beenreleased on bail, his bail bonds shall stand cancelled and he shall betaken into custody.

Kalpana K. Tripathy

Appeal dismissed.