PURSHOTTAM CHOPRA & ANR. versus STATE (GOVT. OF NCT DELHI)

[2020] 1 S.C.R. 341

PURSHOTTAM CHOPRA & ANR.

STATE (GOVT. OF NCT DELHI)

(Criminal Appeal Nos. 194-195 of 2012)

JANUARY, 07, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Penal Code, 1860:

s. 302 r/w s. 34 – Murder – By two accused – Setting thedeceased on fire – Information given to Police Control Room (PCR)– Officials of PCR took the victim to the hospital – Statement madeby the victim to the doctor (PW 8) who prepared MLC, accusing theappellants (accused persons) for the incident – Statement later madeto police Sub-Inspector (PW16) accusing the appellants – Trial Courtrelying on the Dying Declarations convicted the accused andsentenced them to life imprisonment – High Court affirmed theconviction and sentence – Appeal to Supreme Court – Held: Thetwo statements of the victim have rightly been accepted as DyingDeclaration – The Dying Declarations inspire confidence and couldbe relied and acted upon even without corroboration – Suggestionas to self-immolation as occurring in the statement of PW-6 was ofa remote hearsay and hence cannot be accepted – The burden toestablish the self-immolation theory was on the accused, in whichit failed – The act of pouring kerosene and then putting the personon fire, has all the ingredients of doing an act with the intention ofcausing death in gruesome manner – Hence the conviction cannotbe altered to one u/s. 304 (Part II) – Conviction u/s. 302/34 andsentence of life imprisonment affirmed.

Dying Declaration:

Principles relating to recording of Dying Declaration –Discussed.

Dismissing the appeals, the Court

HELD: 1.1 dying declaration could be the sole basis ofconviction even without corroboration, if it inspires confidenceof the Court. The Court should be satisfied that the declarant

342SUPREME COURT REPORTS

[2020] 1 S.C.R.

Awas in fit state of mind at the time of making the statement; andthat it was voluntary statement, which was not the result oftutoring, prompting or imagination. Where dying declaration issuspicious or is suffering from any infirmity such as want of fitstate of mind of the declarant or of like nature, it should not beacted upon without corroborative evidence. When the eye-Bwitnesses affirm that the deceased was not in fit and consciousstate to make the statement, the medical opinion cannot prevail.The law does not provide as to who could record dying declarationnor there is any prescribed format or procedure for the same butthe person recording dying declaration must be satisfied that theCmaker is in fit state of mind and is capable of making thestatement. Although presence of Magistrate is not absolutelynecessary for recording of dying declaration but to ensureauthenticity and credibility, it is expected that Magistrate berequested to record such dying declaration and/or attestation beobtained from other persons present at the time of recording theDdying declaration. As regards burns case, the percentage anddegree of burns would not, by itself, be decisive of the credibilityof dying declaration; and the decisive factor would be the qualityof evidence about the fit and conscious state of the declarant tomake the statement. If after careful scrutiny, the Court finds theEstatement placed as dying declaration to be voluntary and alsofinds it coherent and consistent, there is no legal impediment inrecording conviction on its basis even without corroboration.[Para 21] [384-E-H; 385-A-C]

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

State of Madhya Pradesh v. Dal Singh (2013) 14 SCC159 : [2013] 8 SCR 968 ; Bhagwan v. State ofMaharashtra (2019) 8 SCC 95 ; State of Punjab v. GianKaur and Anr. AIR 1998 SC 2809 ; Uka Ram v.GState of Rajasthan JT 2001 (4) SC 472 : [2001] 2 SCR1052 ; Dalip Singh and Ors. v. State of Punjab AIR1979 SC 1173 ; Gopal Singh and Anr. v. State ofMadhya Pradesh and Anr. AIR 1972 SC 1557;Thurukanni Pompiah and Anr. v. State of Mysore AIR1965 SC 939 – relied on.

Paparambaka Rosamma and Ors. v. State of AndhraPradesh 1999 CriLJ 4321 ; Koli Chunilal Savji andAnr. v. State of Gujarat 1999 CriLJ 4582 ; Vijay Pal v.State (Government of NCT of Delhi) (2015) 4 SCC749 : [2015] 3 SCR 394 ; Sharad Birdhi Chand Sardav. State of Maharashtra (1984) 4 SCC 116 : [1985] 1SCR 88 ; Kalabai v. State of Madhya Pradesh 2019SCC ONLINE SC 621 – referred to.

1.2 In the MLC report (Ex. PW-8/A), PW-8 specificallymentioned the particulars and information as given out by thevictim himself. PW-8 had been categorical in her assertion thatthe patient had himself informed her about the alleged historybehind his sustaining burn injuries. There is absolutely nothingon record to disbelieve or even doubt the statement of PW-8. Onthe contrary, such recording of the expressions verbatim by thedoctor lends credence to her testimony and the documentprepared by her. With this testimony of PW-8, it is establishedbeyond doubt that in his first version in the hospital, the victimasserted that the accused persons poured kerosene oil on himand set him on fire. It is also established that accused (appellantNo. 2) was identified by the victim as ‘telwala’ and it has not beendoubted that in the slang expressions, the reference had been tothe one dealing in some kind of oil business. These are the firsttraces with names and slight particulars of the assailants. In thesequence of circumstances, the expressions have rightly beenfastened on the appellants. [Para 23.1] [386-B-E]

1.3 It is clear from the contents of Ex. PW-8/A about thecondition of the victim that though the doctor found him to be incritical condition with 100% deep burns yet, he was consciousand oriented. Such significant noting about the mental facultiesof the victim at the time of giving out the narratives to the doctormakes it clear that even when he was suffering from the agony of100% deep burns, he was not in an unfit state of mind; and thereappears no reason to disbelieve his first version as recorded inEx. PW-8/A. [Para 23.2] [386-G-H; 387-A]

1.4 The statement (Ex.PW-16/B) said to have been madeby the victim to PW-16 [police offifical) as recorded in hospital in

AHindi language, has in fact been the pivot of the prosecution case.This statement as also the testimony of PW-16 has undergonethorough scrutiny by the Trial Court as also by the High Court.[Para 24] [387-B-C]

1.5 On examining testimony of PW-16 as also the contentsBof Ex. PW-16/B,it is found that there is no reason to take anyview different. The presence ofPW-16 in that hospital at therelevant point of time has not been questioned and it is clearlyestablished on record that before recording the statement of thevictim, he moved the application Ex. PW-16/A whereupon PW-17 [doctor] declared the patient fit for making statement.CThereafter, PW-16 proceeded to record the statement of victimand it has not been shown on record if anyone related withdeceased was present at the time of recording of his statementby PW-16. Any possibility of tutoring or prompting is totally ruledout. In the statement, the victim even stated the registrationDnumber of the vehicle he was employed and gave out the namesand addresses of the appellants while stating their respectiveroles in the incident in question. At the time of making the saidstatement, the victim was suffering from 100% deep burn injuriesand was in critical condition. In the given state, elaboration onthe motive etc., was least expected from him. PW-16 appears toEhave recorded whatever was given out by the victim; and thereappears nothing of any manipulation by him. [Para 24] [387-C-F]

1.6 In the given set of circumstances, there is no infirmitythat the Trial Court and the High Court accepted that the victimwas in fit state of mind to give the statement. It has also notFbeen established on record that the statements of the victim werean outcome of tutoring or figment of imagination. In other words,the statements appear to be voluntary and were given in fitstate of mind. In the given set of circumstances, the statementsso made by the victim could be acted upon as dying declarations.G[Para 25] [388-B-C]

1.7 The expectations in the Delhi High Court Rules thatthe dying declaration be recorded by Judicial Magistrate; thefitness of the declarant be examined; the statement be in the

form of simple narrative; signature or thumb impression of thedeclarant be obtained etc. are all, obviously, intended to ensurethat the dying declaration is recorded in the manner that itscredence does not remain questionable. However, particularstatement, when being offered as dying declaration and satisfiesall the requirements of judicial scrutiny, cannot be discardedmerely because it has not been recorded by Magistrate or thatthe police officer did not obtain attestation by any person presentat the time of making of the statement. Even in this regard, thewitness PW-19 has pointed out that when asked to attest thestatement of the victim as recorded by PW 16 the doctor pointedout that the facts had already been mentioned in the MLC andthere was no need to attest the statement. Taking an overall viewof the matter, there is no reason that the statement Ex. PW-16/Bbe discarded only for want of its recording by Magistrate or forwant of attestation. [Para 25.1] [388-E-H; 389-A]1.8 The extent of burn injuries – going beyond 92% andeven to 100% - would not, by itself, lead to conclusion thatvictim of such burn injuries may not be in position to make thestatement. Irrespective of the extent and gravity of burn injuries,when the doctor had certified him to be in fit state of mind tomake the statement; and the person recording the statementwas also satisfied about his fitness for making such statement;and when there does not appear any inherent or apparent defect,the dying declaration cannot be discarded. The juristic theoryregarding acceptability of statement made by person who is atthe point of death has its fundamentals in the recognition that atthe terminal point of life, every motive to falsehood is removedor silenced. To fire victim like that of present case, the gravityof injuries is an obvious indicator towards the diminishing hopeof life in the victim; and on the accepted principles, accelerationof diminishing of hope of life could only obliterate the likelihoodof falsehood or improper motive. Of course, it may not lead tothe principle that gravity of injury would itself lead totrustworthiness of the dying declaration. There could still be someinherent defect for which statement, even if recorded as dyingdeclaration, cannot be relied upon without corroboration.

ATherefore, merely for 100% burn injuries, it cannot be said thatthe victim was incapable to make statement which could beacted upon as dying declaration. [Para 25.2] [389-C-G]

Vijay Pal v. State (Government of NCT of Delhi) (2015)4 SCC 749 : [2015] 3 SCR 394 ; Bhagwan v. State ofBMaharashtra (2019) 8 SCC 95 ; State of Punjab v. GianKaur and Anr. AIR 1998 SC 2809 ; Dalip Singh andOrs. v. State of Punjab AIR 1979 SC 1173 – relied on.

1.9 As regards the suggestions that the alleged statementsEx. PW-8/A and PW-16/B are manipulated and manufactured,Cthere had not been shown any reason for which PW-8 and PW-16would manufacture any such document. The doubts sought to besuggested about availability of thumb impression of the victimon the statement Ex. PW-16/B also deserve to be rejected. Inthe case of burns, the skin of small part of the body like thumbmay remain intact; and it is essentially question of fact as toDwhether skin of thumb had also been burnt completely. Even whenthe victim was carrying 100% deep burns, as per the post-mortemreport, peeling of skin was noticed on dorsum of hands andtherefore, taking of thumb impression on Ex. PW-16/B is notruled out. The concurrent findings of the Trial Court and the HighECourt in accepting the thumb impression on Ex. PW-16/B do notappear calling for any interference. [Para 25.3] [389-G-H;390-A-D]

Bhagwan v. State of Maharashtra (2019) 8 SCC 95 ;State of Punjab v. Gian Kaur and Anr. AIR 1998 SC2809 – relied on.F

1.10 In such fire injury case, no adverse conclusion can bedrawn against the statement made by the victim about his havingconsumed some liquor and for this reason, the reliability of allother facts stated in his statement cannot be doubted. If he hadGconsumed liquor, there was less probability of his talkingcoherently. It is difficult to say that victim was unable to makethe statement coherently. [Para 25.4] [390-E-F; H]

1.11 Therefore, the two statements Ex. PW-8/A and Ex.PW-16/B have rightly been accepted as dying declarations of the

victim, as made few hours before his demise and there is noreason to discard the same. In the given set of facts andcircumstances, where these two dying declarations inspireconfidence, They could be relied and acted upon even withoutcorroboration. [Para 25.5] [391-A-B]

2.1 The version as attempted to be given by PW6 in thecross-examination that the victim had at the first point of timemade the statement about self-immolation for the reason of himselfhaving been dropped from tempo has rightly been rejected bythe Trial Court and by the High Court. This witness did not stateanything in his examination-in-chief about the victim having toldanyone about self-immolation and therefore, there was no occasionfor the prosecution to declare him hostile and to confront himwith his previous statement. Moreover, though the story aboutthe victim having asserted that he had set himself on fire came tobe introduced by this witness in his cross-examination on behalfof the appellant No. 1 but the value and worth of such suggestionwas effectively demolished by this witness himself in his furtherstatement in cross-examination on behalf of the appellant No. 2where he categorically stated that “victim has not told the peoplepresent in my presence that he had put himself on fire”. Obviously,the suggestion as occurring in the statement of PW-6 about self-immolation by the victim had been of remote hearsay and is notof any worth at all. [Paras 26 and 26.1] [391-C-D, F-H; 392-A]

2.2 The plea about want of examination of other personsnamed by PW-6 falls to the ground because such names and theirroles came to be introduced only in the statement made by PW-6in his cross-examination. The theory of self-immolation as alsothe names of the other persons, who allegedly reached the spot,having come up by way of cross-examination of PW-6, the burdenwas on the accused persons to establish such theory by cogentevidence. No such attempt was made on behalf of the accused-appellants to prove any such fact or to examine any such namedperson. [Para 26.2] [392-B-C]

3. The plea that the prosecution has not been able toestablish the identity of assailants in this crime, has no substance

Awhen the particulars as occurring in the two statements Ex. PW-8/A and Ex. PW-16/B are examined and analysed, whereinoccupation of at least one of the assailant and then the names andaddresses of both the appellants came to be mentioned. For thisvery reason, the other contention that the incident took place ina crowded market place and the appellants were not seen byBanyone also pales into insignificance. [Para 27.1] [392-G-H;393-A]

4. The establishment of the motive for crime is also of noeffect because, in the first place, in death case, the motiveremains essentially known to the deceased and to the offender;Cand prosecution case cannot fail only for want of proof of motive.This apart, in the present case, the indications of an existingdispute of the deceased with appellant No. 1 do appear in thetestimony of the brother of the deceased, PW-1. It is also noticedthat the deceased and the accused persons were the residents ofDthe same locality. [Para 27.2] [393-B]

5. The High Court has rightly relied upon the informationreflected in Parts II, III and IV of PCR form, which clearly showthat not only the initial information was recorded about the victimbeing on fire but further information were recorded from time toEtime during the course of transporting and admitting the victimto hospital, where not only his address came to be mentioned butthe names of the assailants also surfaced. The said documenthaving been produced before the Court and its copy having beentaken on record, with PW-7 having proved the same, it would notbe justified to discard it. [Para 27.3] [393-D-E]F6. As regards the statement of PW-18 ASI who assertedthat the victim, while being taken to hospital in PCR Van andeven in hospital, did not speak to him and was only crying in pain,Some of the remarks appear justified. However, this aspect doesnot require further dilation for the other facts established onGrecord, including the fact that the victim was conscious andoriented at the time of admission to the hospital and made thestatements in fit state of mind. [Para 27.4] [393-F; 394-A-B]

7. The act of pouring kerosene over person and thenputting him on fire by lighting match has all the ingredients ofH

doing an act with the intention of causing death of person in agruesome manner. The conviction of the appellants for the offenceof murder appears justified and there is no reason to convert thesame into any offence of lesser degree i.e. u/s. 304 (Part II).[Para 27.5] [394-C-D]

Sharad Birdhi Chand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88 – referred to.

8. When it has come on record that appellant No. 1 waswith the appellant No. 2 when the victim was threatened and wasput on fire, the conviction of this appellant under Section 302/34IPC remains unexceptionable. The suggestion of no likelihoodof appellant No. 1 throwing kerosene on the head of the deceaseddeserves to be rejected without much dilation. [Para 27.6] [394-E-F]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 194-195 of 2012.

From the Judgment and Order dated 23.05.2011 of the High Courtof Delhi at New Delhi in Crl. Appeal Nos. 121 of 1999 and 139 of 1999.

AMs. Neha Kapoor, Mohit Rhadu, Milind Kumar, Jagjit SinghChhabra, Saksham Maheshwari, Advs. for the Appellants.

Ms. Vibha Dutta Makhija, Sr. Adv., Rajan Kumar Chourasia, AbhayKumar, B. V. Balaram Das, Advs. for the Respondent.

The Judgment of the Court was delivered byB

DINESH MAHESHWARI, J.

Preliminary

1. By way of these appeals, the appellants have called in questionthe judgment and order dated 23.05.2011 in Criminal Appeal No. 121 ofC1999 and Criminal Appeal No. 139 of 1999 whereby, the High Court ofDelhi has affirmed the judgment and order dated 30.01.1999 in SessionsCase No. 2 of 1998 by the Additional Sessions Judge, Delhi; and hasupheld the conviction of the appellants for the offence punishable underSection 302 read with Section 34 of Indian Penal Code (‘IPC’).

D2. In brief outline of the material aspects, it could be noticed thatin the present case, the appellants are accused of causing death of oneSher Singh by putting him on fire. There had been no eye-witness to theincident but the prosecution has relied upon two statements said to havebeen made by the deceased after the incident: one when he was admittedto the hospital with 100% burns and another when he was under treatment,Erespectively to doctor and to police officer. The Trial Court as alsothe High Court have accepted these statements as being his dyingdeclarations wherein the appellants were named as the assailants.Therefore, the appellants stand convicted essentially on the basis of thedying declarations of the victim. The reliability of such dying declarationsFhas been assailed in these appeals apart from other contentions concerningthe surrounding factors. The relevant facts and background aspects ofthe matter could be noticed, keeping in view of the points arising fordetermination in these appeals.

The relevant facts and background

3. Put in brief, the prosecution case had been that on 18.12.1997,at about 3.00-3.15 p.m., hearing the screams of person and noticingsmoke coming from plot no. 17 situated near Goverdhan Park, UttamNagar, Delhi, lot of people gathered at the spot and saw that manwas ablaze with his entire body covered with fire; and the people so

gathered made efforts to put out the flames by throwing water over thesaid person. The information as regards this incident was received in thePolice Control Room (‘PCR’) through phone call from some unknownperson at 3.28 p.m. by Ct. Anju (PW-7), who made an entry bearing No.467 in Form I (Ex. PW-7/A) and passed on the information to the nearestPolice Station. The concerned officers from PCR reached the spot andshifted the injured person to Safdarjung Hospital for treatment, whereDr. Sushma (PW-8) prepared the MLC (Ex. PW-8/A). While preparingthe MLC, the injured person identified himself as Sher Singh and gavehis address; and narrated the incident that had led to his current conditionwhile accusing one Purshottam and another Suresh (telwala), bothresidents of A-block, Uttam Nagar, Delhi as his assailants[1].

4. Simultaneously, SI Rajesh Kumar (PW-16) and Ct. VijayParkash (PW-13) reached the site of incident and were apprised thatthe injured person had been shifted to the hospital. SI Rajesh Kumar leftCt. Vijay Parkash on the spot and himself reached the hospital, only tofind that the injured person was admitted in ICU. SI Rajesh Kumarcollected the MLC prepared for the injured person; and moved anapplication (Ex. PW-16/A) before the concerned doctor to take thestatement of the injured person. When Dr. Rajesh Verma (PW-17)certified that the patient was fit to make the statement, SI Rajesh Kumarrecorded his statement (Ex. PW-16/B) wherein the injured person –Sher Singh – gave out his name and address and then stated that he hadpurchased half bottle of liquor from one Suresh (telwala), who had anoil depot; that he drank such liquor; that Purshottam also had an oildepot; and that while Suresh poured the kerosene oil over him and lit himaflame, Purshottam was present.[2]

5. Thereafter, the SHO and Additional SHO of Police StationVikas Puri reached the hospital. After recording the statement of injured,SI Rajesh Kumar left the hospital, only to arrive back at the site ofincident and sent Ct. Vijay Parkash to register complaint for the offencepunishable under Section 307 read with Section 34 IPC and hence, FIRNo. 780 of 1997 came to be registered. During this time, SI RajeshKumar got the site photographed; prepared the site plan; seized onepiece of burnt cloth (white colour), one half bottle of liquor, one white

1 These persons Purshottam and Suresh are the appellants herein.

2 The contents of this statement (Ex. PW-16/B) as also the MLC (Ex. PW-8/A) are taken as the dying declarations of the victim and shall be referred in detail hereafter later.

Acolour container, one burnt sweater, one match box which containedmatch sticks; prepared seizure memo of the articles; and deposited thesame with the Police Station at Vikas Puri.

6. On the basis of statement made by the injured Sher Singh, theappellants Purshottam and Suresh were arrested in the night interveningB18/19.12.1997 from their respective houses. In the morning hours of19.12.1997, the information of Sher Singh’s death was received whichresulted in the case being converted to one under Section 302 read withSection 34 IPC and the investigation of the case was taken over byInspector Om Prakash, Additional SHO, Police Station Vikas Puri, whoconducted inquest proceedings over the dead body of Sher Singh beforeCsending it for post-mortem on 19.12.1997. Dr. Arvind (PW-14) conductedthe post-mortem and opined that the cause of death was due to shockconsequent to 100% ante-mortem flame burns.7. The investigating officer then prepared scaled map; sent thearticles seized to office of CFSL, Chandigarh and thereafter collectedDthe report; and filed the charge-sheet before the Magistrate, whocommitted the case to the Court of Sessions.

The evidence

8. After committal, the case was tried as Sessions Case No. 2 ofE1998 in the Court of Additional Sessions Judge, Delhi. In prosecutionevidence, total of 19 witnesses were examined namely, PW-1 Raju(brother of deceased); PW-2 Paali (brother of deceased); PW-3 Ct.Mahender Singh; PW-4 Head Ct. Jagbir Singh; PW-5 L/Ct. Rajesh;PW-6 Rajesh (the shop owner near the place of incident who allegedlyreached the spot and found the victim in flames); PW-7 L/Ct. Anju (whoFreceived the telephonic information in PCR and made an entry to thateffect); PW-8 Dr. Sushma (who had been working in Plastic and BurnsWard in Safdarjang Hospital and who prepared the MLC as per thealleged version of the victim); PW-9 Dr. H. K. Sharma (who signed thedeath summary/discharge slip relating to the deceased victim); PW-10GHead Ct. Ved Parkash; PW-11 Gurdeep Kumar (the photographer);PW-12 Inspector Devender Singh (who prepared the scaled site plan);PW-13 Ct. Vijay Parkash (who reached the place of incident with SIRajesh Kumar); PW-14 Dr. Arvind (who conducted post-mortem overthe dead body of victim); PW-15 Ct. Joginder Singh; PW-16 SI RajeshKumar (who reached the place of incident with Ct. Vijay Parkash andH

thereafter reached the hospital and recorded the dying declaration ofthe victim); PW-17 Dr. Rajesh Verma (who declared the victim fit forgiving statement); PW-18 Harish Ram (who transported the victim tohospital from the place of incident in PCR van); and PW-19 InspectorOm Parkash (who took over the investigation from SI Rajesh Kumar).

9. Out of the aforesaid witnesses, PW-3 Ct. Mahender Singh;PW-4 Head Ct. Jagbir Singh; PW-5 L/Ct. Rajesh; PW-10 Head Ct. VedParkash; PW-11 Gurdeep Kumar; PW-12 Inspector Devender Singh;and PW-15 Ct. Joginder Singh had been the formal witnesses relatedwith the process of investigation. However, in view of the contentionsurged and the issues involved, we may take note of the salient featuresof the testimonies of other witnesses namely, the brothers of deceased,the person allegedly reaching the site upon noticing the incident, themedical officers, and the police personnel.

9.1. PW-1 Raju, the elder brother of the deceased Sher Singh, ledin evidence, inter alia, to the effect that the appellants were the residentsof same locality as that of his brother; that the appellants were havingseparate kerosene depots; that they were workers for BJP; and thatprior to the murder of Sher Singh, dispute had taken place between hisbrother and Purshottam but no police complaint was filed due to fear. Inhis cross-examination, this witness stated that he came to know aboutthe quarrels of deceased with Purshottam Chopra from his mother.

9.2. PW-2 Paali, also the brother of Sher Singh, led in evidence tothe effect that he had visited the mortuary to identify the dead body ofhis brother. This witness stated that the deceased was living with him inthe same premises; that he was not aware if deceased used to consumeliquor but denied the suggestion that the deceased was drunkard.

9.3. PW-6 Rajesh, having shop across the road where theincident had taken place, in his examination-in-chief deposed that onhearing the screams and seeing the smoke, he rushed to the spot; thatother people from the market had also reached there; that he saw aperson burning on fire; that they threw water from nearby tap on theburning body of the victim who identified himself as Sher Singh; and thatsomeone from the market telephoned at number 100 whereupon thepolice reached the spot.

9.3.1. In his cross-examination carried on behalf of the accusedPurshottam, this witness PW-6 Rajesh deposed that one has to pass

Afrom the street in front of his shop to reach plot No. 17 and there was noother way/gali to reach plot No. 17 nor there was any other exit. Thiswitness further stated that upon hearing the screams, himself as also hisneighbourers Daljit Singh and Vicky from Ravindra Auto and one Rinkurushed to the spot; that he had not seen any person running or goingfrom the spot. This witness further pointed out that they threw water onBthe victim, who stated his name and also gave out his address. Thiswitness, inter alia, stated,-

“ …..Some public persons had enquired from the victim as towho had put him on fire. He had told them that since he wasdropped from the tempo, he had set himself on fire…..”C

This witness further attributed knowledge about some of the factsto one Daljit and alleged that Daljit had seen the victim carrying keroseneoil in polythene towards the plot. The witness stated, inter alia, as under:

“ …..Daljit had told me in the evening that he had seen theDvictim carrying the kerosene oil in polythene towards thatplot. (Objected to by Ld. Addl. P.P.) Police had recorded mystatement and the statement of Rinku and Daljit in the sameevening. Volunteered the police had also recorded statementof 10/12 persons. Daljit Singh and Rinku had not made thesestatement to the police in my presence.E

After 2/3 days of the incident, the T.V. persons had come atplot no. 17 and had prepared cassette. They had enquiredabout the incident from me and Daljit Singh. My interviewwas taken by City Cables. Interview of Daljit was taken byCity Cables. Daljit Singh had told city cables in his interviewFthat he had seen the victim carrying kerosene oil in thepolythene to that plot. (Objected to by Ld. Addl. P.P.)”

9.3.2. On being subjected to cross-examination on behalf of theaccused Suresh, this witness stated that he was not present at the timewhen Sher Singh told the public that he had put himself on fire afterGbeing dropped from the tempo. The relevant portion of his statement inthis cross-examination reads as under:

“….The victim Sher Singh had not told the public persons inmy presence that he had put himself on fire as he was droppedfrom the tempo. About 100 or 120 persons had gathered at

the place of incident within 5 minutes. Police had interrogatedTony and one other person from the same locality in mypresence on the next day and had recorded their statements.Tony had stated to the police in his statement that victim wastelling that he had put himself on fire as he was dropped fromthe tempo. (objected to) Tony had given the statement to policein my presence. ….”

9.4. In all, four medical officers were examined in this matter.PW-9 Dr. H.K. Sharma had been working in the Burns Ward ofSafdarjung Hospital where the victim was admitted on 18.12.1997 andexpired in the early hours of 19.12.1997. He got prepared the deathsummary/discharge slip (Ex. PW-9/A). The statement made by thiswitness in cross-examination as regards the critical condition of the victimand preparation of OPD slip have been referred in the contentions onbehalf of the appellants and hence, it would be apposite to take note ofhis testimony in the cross-examination that reads as under:

“It is correct that the patient was in very critical conditionright from the time of admission. It is correct that the conditionof the patient went on deteriorating since time of hisadmission. It is correct that the patient remained admittedthroughout in ICU. Death summary Ex. PW-9/A was preparedon the basis of the recording in the patient file. First documentprepared at the time of the patient was OPD slip. The name ofthe informer was mentioned on the opd slip. I mentioned theinformant in Ex. PW-9/A to be ‘police’ from the OPD card.”

9.5. PW-14 Dr. Arvind had conducted post-mortem over the deadbody of the victim Sher Singh. In the external examination recorded byhim, it had been recorded as under:

“…Burns injuries: (1) Cut down wound was present on thelower end of right upper arm. (2) Dermo-eprdermai burnssuperficial to deep in nature were present all over the body.The total percentage of burns area was about 100%. The areaof redness was present on four (sic) arms and front of chest.The area of blackening of skin was present on face, front ofthe chest. Peeling of skin was present on dorsome (sic) ofhands, Front of legs. Heat split lecerations were present onfront of left shoulder....No mark of violence of leg, signs of

Astruggle were present on the body. Smell of kerosene waspresent in scalp hair.”

9.6. PW-17 Dr. Rajesh Verma deposed that he had declared thepatient to be fit for giving his statement and an endorsement was madeby him on the requisition Ex. PW-16/A provided by the InvestigatingBOfficer at mark ‘X’. In his cross-examination, this witness stated thatafter admission, the condition of the patient was continuouslydeteriorating; that he was under continuous medical watch; and that heultimately died at 4.00 a.m. This witness also stated that the patient wasunder continuous medical attendance at ICU but denied the suggestionthat the certificate regarding fitness to make statement was obtainedCfrom him by the police in routine manner.

9.7. PW-8 Dr. Sushma, one of the members of the Plastic andBurns Ward had attended on the injured Sher Singh when he was admittedto the hospital. She deposed, in her examination-in-chief, that Sher Singhwas initially brought to the burns causality; that Sher Singh himself gaveDthe alleged history that he had sustained burn injuries whenPurshottam and Suresh (telwala) threatened him and then pouredkerosene on him and set him on fire. She also stated that onexamination, the patient was found conscious and oriented, though hisgeneral condition was critical, being that the entire surface area of hisEbody was found with 100% deep burns. The relevant contents of thestatement made by this witness PW-8 Dr. Sushma in her cross-examination may also be taken note of in requisite details as under:

“I do not know if the patient was removed earlier to the maincasuality of Safdarjang hospital. Burns patient are broughtFdirectly to the casuality of burns ward. Victim Sher Sg. wasnot accompanied by any relative/attendant. Police had broughtthe patient in the casuality.

Death summary is prepared if the patient expires. Ex. PW-8/Ais the first document prepared by me.

I do not remember if the patient was crying in agony when hewas brought at the casuality. As soon as the patient arrives atthe casuality, OPD slip is prepared by the Junior Resident.On the OPD card it is decided if the patient is to be admittedor to be sent back. MLC is prepared after the preparation ofOPD card. OPD card was before me when I prepared the

MLC Ex. PW-8/A. I have not recorded the fact in the MLC Ex.PW-8/A that the patient was brought by the police. I rememberthis fact by memory. It is possible that some relations mighthave accompanied the patient. The OPD card remains in thepatient file. It is incorrect to suggest that the patient had notgiven any alleged history or that later at the suggestion ofthe police I have prepared this MLC. No mark of identificationof the patient was obtained on the MLC Ex. PW-8/A. The wholeof the body of the patient including his thumbs were burnt.”9.8. The testimonies of five police personnel related with this matteralso need to be taken note of. PW-7 L/Ct. Anju deposed that on18.12.1997, she received information through telephone call that someunknown person had set himself on fire near Uttam Nagar bus standand thereafter, she filled in the PCR form regarding this information atSerial No. 467. The statement of this witness was deferred for want oforiginal record and she was further examined alongwith the originalproforma of PCR, photocopy whereof was taken on record as ExhibitPW-7/B.

9.9. PW-13 Ct. Vijay Parkash in his examination-in-chief statedthat at the relevant time, he was on emergency duty at Police StationVikas Puri and reached the spot with SI Rajesh Kumar after receivinginformation about an injured person lying at Dal Mill Road, GoverdhanPark; and on reaching the said spot, they were informed that the injuredhad already been shifted to the hospital by PCR Van. Thereafter, SIRajesh instructed him to remain at the spot and left for the hospital.Upon his return from the hospital at about 09.50 p.m., SI Rajesh handedhim one rukka for registration of an FIR at the police station whereuponhe got recorded FIR at No. 780/97 and returned to the spot with copyof FIR and thereafter assisted the Investigating Officer to collect/seizecertain articles from the spot, which were later sealed in an envelope. Inhis cross-examination, this witness deposed as under:

“…There is distance of about 1 ½ Km. between the PS andthe spot. About 15/20 public persons were already present atthe spot when we reached there. Insp. Rajesh had not recordedthe statement of any person on reaching at the spot. AfterInsp. Rajesh had returned at the spot at 9.50 P.M. from thehospital, he did not record statement of any person in my

Apresence….I.O. had not called any public person at the timeof sealing the case property….”

9.10. PW-18 ASI Harish Ram stated in his examination-in-chiefthat at the relevant time on 18.12.1997, he was posted in PCR WestZone when they received wireless message at around 3.30 p.m. that aBperson was in burnt condition near scooter market, Uttam Nagar and onreceiving this information, they immediately reached the spot in the Vanand found one male person in burnt condition at plot No. 17 GoverdhanPark where about 20-30 persons had gathered; that they lifted the burntperson in the PCR Van and removed him to Safdarjung Hospital; thatthe name of victim came to be known as Sher Singh; that no publicCperson accompanied them from the spot in PCR Van; and that the patientwas crying in pain on the way, he did not have any talk with them. In hisinitial cross-examination, this witness stated that they did not make anyeffort to talk to the burnt person as he was not in condition to speak;and that no relative of the patient met them at the hospital. In his furtherDcross-examination, the witness admitted the fact that the first message

as received had been about the person having set himself on firewhereupon they reached the spot. The witness pointed out that it tookthem about 5-7 minutes to put the victim in the PCR Van but denied thesuggestion that the people present there informed that the patient put onthe fire himself. The witness stated that at the time of admitting theEvictim to hospital, he had given the name of victim as Sher Singh, as wasgathered from the persons present there; and repeated the assertionthat the victim was not in position to speak so long as he remained inthe hospital and that the doctor had not enquired about the address ofthe victim in his presence.

9.11. PW-16 SI Rajesh Kumar, in his examination-in-chief deposedthat after copy of DD No. 21A was handed over to him, he left withCt. Vijay Parkash for carrying out investigation; upon his reaching thesite, he was informed that the injured had been shifted to the hospital ina PCR Van; he then left Ct. Vijay Parkash at the site and reached thehospital only to find that the injured was admitted in the ICU and thushad sought permission through requisition Ex. PW-16/A from theconcerned doctor to record the statement of the injured. At about 7.50p.m. the same day, he was informed that the patient was fit for givingstatement whereupon he recorded the statement Ex. PW-16/B verbatim

and obtained the left thumb impression of Sher Singh. It was also statedby this witness that after recording the statement of Sher Singh, he wentback to the spot to carry out investigation and handed over rukka to Ct.Vijay Parkash for registration of FIR. Thereafter, the site plan was drawn,the site was photographed and certain articles were seized and sealed.He further stated that he had effected arrest of the two accused personsnamed by Sher Singh in the night intervening 18/19.12.1997; and thatafter receiving information that Sher Singh had passed away in themorning of 19.12.1997, the investigation was handed over to the InspectorOm Parkash, Additional SHO.

9.11.1. In his cross-examination, this witness stated that when hehad gone to arrest the accused persons in the night and apprised them ofthe statement made by Sher Singh, the accused persons denied anyinvolvement in the commission of the said offence. He also deposed asunder:

“…On reaching at the spot, I did not make any investigationregarding the information recorded in DD No. 21A that oneperson had set himself on fire. I did not investigate this facttill the investigation remained with me.

…I had made enquires from the public persons present thereduring my stay for about 20 or 25 minutes at the spot. At thattime, no evidence had come to show that injured Sher Singhhad put on fire by someone.”

9.11.2. PW-16 also stated that on reaching the hospital at about5.45 to 6 p.m., he collected the MLC of Sher Singh and came to knowthat Sher Singh had held Purshottam and Suresh responsible for hiscondition; he started recording the statement of the patient at about 8p.m. and that no other doctor or nurse was with them at the time ofrecording the statement. Though PW-16 stated that he did not put in anyefforts to call for SDM or MM to record the statement of Sher Singh,yet he volunteered to state that he had sought opinion of the concerneddoctor that if he could summon SDM or MM to record the statement butthe doctor stated that the condition of the injured had become critical.He also stated that the injured Sher Singh had stopped talking by thattime.

A9.11.3. More specifically, in the cross-examination conducted onbehalf of the accused Suresh, PW-16 stated that the whole body of SherSingh was wrapped in bandages except his eyes, nose and mouth. Hedenied the suggestion that the thumb impression on the statement wasforged and that the deceased was not in position to put his thumbimpression on the statement recorded. The relevant part of his testimonyBin this regard could also be usefully taken note of as under:

“The patient came out of the ICU at about 7.45 P.M. of 8P.M.…. When I had moved an application for recordingstatement of the patient, one doctor and one nurse werepresent beside the patient. I had not requested the doctor andCnurse in writing to remain present at the time of recordingdying declaration of the patient. (Volunteered I had requestedthem orally). ….. I had not informed the doctor and nurseabout the consequences for not joining the investigation.(Volunteered at that time I was not aware that the patient willDbe dying). When the patient was brought out of ICU I hadseen him burnt all over the body.The whole body of the patient excluding eyes, nose and mouthwas wrapped with bandages. The ears were also not wrappedwith bandage. It is incorrect to suggest that Patient Sher Singhdid not make any dying declaration and I had forged andcreated falsely the dying declaration Ex. PW-16/B to be thatof deceased Sher Singh. It is incorrect to suggest that thethumb impression at point on Ex. PW-16/B has been forgedafterwards and deceased was not in condition to put histhumb impression. It is also incorrect to suggest that deceasedSher Singh had died in the ICU itself and was dead whenbrought out of ICU.”

9.11.4. PW-16 also stated that he did not get the statement ofother witnesses from the spot or the nearby residential houses nor did hemake efforts to find out as to who had called the police to inform aboutGthe incident.

9.12. PW-19 Inspector Om Prakash had been the Additional SHO,Police Station Vikas Puri who took over the case from SI Rajesh Kumaron 19.12.1997. He prepared the inquest report in the presence of thebrothers of the deceased and sent the dead body for post-mortem and

after post-mortem handed over the same to his family members. Thiswitness further pointed out that he recorded the statement of Rajesh atthe spot and made further enquiries but no other person gave thestatement. This witness, inter alia, stated that on 18.12.1997, he alongwith SHO Police Station Vikas Puri had reached the hospital on gettingthe information about the critical condition of victim and SI Rajesh Kumarmet them; at that time the victim was lying in adjoining room of ICU.The witness further stated that when the doctor concerned was askedto attest the statement of injured Sher Singh as recorded by SI RajeshKumar, the doctor pointed out that the facts had already been mentionedin the MLC and there was no need to attest the statement recorded bySI Rajesh Kumar. In cross-examination the witness admitted the factthat in the related DD entry, the information recorded had been that oneperson had put himself on fire. In the other part of cross-examination,this witness was given the suggestions that when he was in-charge PPMatiala, hot words were exchanged with accused persons and furtherhot words were exchanged with them when he was in-charge PP EastUttam Nagar regarding some demonstration of workers. It was yet furthersuggested that one week prior to the incident, he had an altercation withthe accused persons. The witness, of course, denied such suggestions.

10. As noticed, the contents of two documents, namely, the MLCreport said to have been prepared by PW-8 Dr. Sushma (Ex. PW-8/A)and the statement said to have been recorded by PW-16 SI Rajesh Kumar(Ex. PW-16/B), form the core of this case inasmuch as the prosecutionhas relied upon them as being the last statements made by Sher Singhafter the incident and few hours before his demise. Hence, the contentsof these documents also need to be taken note of.

10.1. In the MLC Ex. PW-8/A, said to have been prepared byPW-8 Dr. Sushma at 4.35 p.m. on 18.12.1997, the particulars of thepatient were stated as Sher Singh son of Ganpat Ram age 23 yearsM and address as H-603, Pankha Rd. N. Delhi. While stating that thetime of burning was approximately 3.30 p.m. and time of admission was4.35 p.m., it was also stated therein that the informant was the patienthimself. The doctor noticed that the patient was ‘conscious, oriented’and that he had suffered ‘burn injuries involving whole of the bodysurface area-100% deep burn’. On the significant part, the doctorstated the information given by the patient in the following terms:

A“Alleged to have sustained burn injury when some Purshottam& Suresh (telwala)[3] threatened him & then poured keroseneon him & set him on fire.”

10.2. The statement of the injured Sher Singh (Ex. PW-16/B) issaid to have been recorded by PW-16 SI Rajesh Kumar in the hospital inBHindi language. Its approximately accurate translation, as adopted bythe High Court, reads as under:

“Statement of Sher Singh, S/o Ganpat Ram, R/o A-603, PankhaRoad, J.J.Colony, Uttam Nagar, Delhi aged 23/24 years.

I reside with my mother and I am employed as helper inCvehicle No. DL-IL-0382 Tata 407 owned by Raghunath whoresides opposite Chaddha Hotel, J.J.Colony, Uttam Nagar thedrivers of which vehicle are Natthu and Raju. Suresh whoruns an oil depot on Hastal Road gave me half bottle of liquorwhich I drank. Suresh and Purshottam who have an oil depotDat Jeevan Park and Suresh resides at 795, J.J.Colony andPurshottam resides at 686, J.J.Colony, Pankha Road. Sureshpoured kerosene oil on me and Purshottam was with him.Suresh thereafter set me on fire by lighting match.”

10.3. Another relevant document for the present purpose is theEPCR form (Ex. PW-7/B) wherein it was recorded in Part-I that theinformation was received that ‘near scooter market, Prem Nagar BusStand, Dall Mill Road, Uttam Nagar, one person has put himself onfire’. In Part-II, the information recorded had been that the victim wasfound to have suffered 100% burn injuries; he was being taken to thehospital; and was identified as ‘Sher Singh s/o Ganpat Ram age 23/F24 years R/o 603 Pankha Road, Uttam Nagar’. In Part III, it wasrecorded that the patient was admitted in the hospital in 100% burncondition and he was not saying anything. However, in the last part ofthis document, it came to be recorded that as per the patient’s statementto the doctor, ‘Suresh and Purshottam threatened him and then putGhim on fire after pouring kerosene oil’.

11. In their statements under Section 313 of the Code of CriminalProcedure (‘CrPC’), both the appellants denied their involvement in thecommission of the offence i.e., putting Sher Singh on fire.

3 In Ex.PW-8/A, the expression ‘telwala’ is placed in parenthesis and is written inHHindi, though other contents are in English.

11.1. The relevant portions of appellant Purshottam’s statementread as under:

“Q.3 It is further in evidence against you that you are activeworker of BJP. On two or three occasions, prior to the incidentquarrels/ disputes had taken place of yours with deceasedSher Singh. No report was got lodged with the police aboutthe quarrels due to fear. What have you to say?

Ans. It is correct that I am an active member of BJP. Secondpart is incorrect.

Q.20 It is further in evidence against you that patient SherSingh (since deceased) had further stated in his statement toPW-16 SI Rajesh Kumar that co-accused Suresh had put himon fire with match stick and both of you were residing at ABlock, Uttam Nagar. What have you to say?

Ans. It is correct that I am residing at Block, Uttam Nagar.Rest is denied.

Q.43 Do you want to say anything else?

Ans. That being politically known person, I have been falselyimplicated by certain persons adversely interested against me.”

11.2. The accused Suresh also submitted that he had been falselyimplicated in the case and that the evidence led in against him was false.He gave out his version in the following:-

“Q.42 Do you want to say anything else?

Ans. I am innocent. I am running business of hardware underthe name and style of “M/S NEW DELUX PANTS and at nopoint time I have kerosene oil depot. The police has implicatedme in this case falsely and I was picked up from my residenceby the police of PS Vikas Puri on the false pretext that certainenquiries are to be made and they assured me to release onthe same day. But after taking me forcely from my residencethe police involved me in this case. I do not know thedeceased.”

AThe Trial Court found the appellants guilty

12. After conclusion of the trial and after having heard the parties,the Trial Court proceeded to determine the questions involved in thematter in its impugned judgment dated 30.01.1999. The Trial Court foundthat there was no direct evidence about the commission of offence; andBthat the entire prosecution case was hinging upon the two dyingdeclarations said to have been made by the deceased Sher Singh.

12.1. The Trial Court accepted the genuineness of the evidenceled in by PW-8 Dr. Sushma that the victim Sher Singh himself had informedher the reason and cause behind his injuries; that she had found thevictim to be conscious and oriented though his general condition wascritical; and that the veracity of the MLC Ex. PW8/A prepared by hercould not be doubted. The Trial Court, inter alia, observed and held asunder:

“16. From the entire testimony of PW-8 Dr. Sushma, I am ofthe considered view that she has fully proved the contents ofMLC Ex. PW-8/A prepared by her. PW-8 Dr. Sushma was aresponsible officer and was not expected to fabricate the vitalpiece of evidence against the accused persons with whom noill-will or enmity has been alleged. No motive can be imputedto PW-8 Dr. Sushma to fabricate the dying declaration at theinstance of the police. I have gone through the MLC Ex.PW-8/A which is in the handwriting of PW-8 Dr. Sushma. Samebears her sign at point A. The preparation of MLC by Dr.Sushma and examination of the deceased at the time has notbeen challenged in the cross-examination. There is no meritin the argument of the Ld. Defence counsel that since OPDcard was not produced on merit, the MLC prepared by Dr.Sushma cannot be considered. Nothing has come on recordabout the contents of the OPD card. If the OPD card was somaterial or relevant in the case to falsify the MLC Ex.PW-8/A, there was no obstruction for the accused persons to summonthe OPD card in their defence or at the time of cross-examination of PW-8 Dr. Sushma. Since OPD card is not onthe file and the contents of the same are not known to thecourt, no adverse inference can be drawn against theprosecution and by no stretch of imagination, the veracity ofMLC prepared by PW-8 Dr. Sushma can be doubted. Dr.

Sushma had no axe to grind to falsely record the allegedhistory given by the deceased himself. Nothing has come onrecord to show if Dr. Sushma was known to the deceased orany of his family members to favour them.….. PW-9 Dr. H. K.Sharma, PW-17 Dr. Rajesh Verma both from Safdarjanghospital have been examined by the prosecution. The MLCprepared by Dr. Sushma Ex.PW-8/A has not been challengedin their cross-examination also. So I am of this view thatthere is no doubt about the preparation of the MLC Ex.PW8/A by Dr. Sushma and in view the same has been proved onrecord beyond reasonable doubt.”

12.2. The Trial Court also accepted the testimony of PW-16 SIRajesh and the statement of the victim said to have been recorded byhim as the dying declaration with the findings as under:

“18. Perusal of the above said testimony of PW-16 SI RajeshKumar reveals that statement of the injured (subsequentlytreated as dying declaration) was recorded by PW-16 SIRajesh Kumar. The presence of SI Rajesh at the hospital hasnot been denied by the accused persons. PW-13 Ct. VijayParkash in his testimony has corroborated the version of PW-16 SI Rajesh that on receipt of DD, he alongwith SI Rajeshhad reached at the spot at 3.15 P.M. and there they had cometo know that the injured had already been removed by PCRvan to the hospital. Insp. Rajesh had left him at the spot andhe himself had left for the hospital. No suggestion was putby the accused persons to PW-8 Dr. Sushma, PW-9 Dr. H. K.Sharma and PW-17 Dr. Rajesh that SI Rajesh was not presentat the hospital or that he had not recorded any statement ofthe injured Sher Singh. PW-16 SI Rajesh has proved on recordthe application Ex.PW-16/A moved by him before the doctorto record the statement of injured Sher Singh. Endorsementof PW-17 Dr. Rajesh Verma declaring the patient to be fit forstatement at 7.50 P.M. appears at portion on Ex.PW-16/A.Dr. Rajesh appearing before the court as PW-17 has alsodeposed that he had declared the patient to be fit for statementon the application of the IO Ex.PW-16/A. No suggestion wasput to this witness in the cross-examination by the accusedpersons that no such application was moved by the IO at that

time. PW-17 Dr. Rajesh Verma working as doctor was havingno motive to falsely make his endorsement at portion onEx.PW-16/A. The application Ex.PW-16/A categorically provesthe presence of PW-16 SI Rajesh at the hospital at 7.50 P.M.Once the permission was obtained by SI Rajesh to record thestatement of Sher Singh at 7.50 P.M. from PW-17 Dr. Rajeshhe was supposed to right (sic) the statement of the injuredand it does not lie in the mouth of the accused persons tostate that the statement of the injured Sher Singh wasfabricated afterwards by the IO. No suggestion was put toPW-17 in the cross-examination by the accused persons thateven after endorsement made by him on Ex.PW-16/A, the IOhad not record the statement of injured Sher Singh.…..

19. Nothing has come on record to show if any relative of thedeceased was present at the time when injured Sher Singhwas brought at hospital or when his MLC Ex.PW-8/A wasprepared or when statement Ex.PW-16/B was recorded by PW-16 SI Rajesh. No motive has been imputed by the prosecutionto this witness to falsely fabricate the statement of thedeceased. At the time of recording the statement Ex.PW-16/B,there was nothing in the mind of SI Rajesh to show that injuredSher Singh would expire soon. SI Rajesh got recorded thecase u/s 307/34 IPC against both the accused persons. Rukkawas sent from the spot at 9.55 P.M. The FIR was registeredthereafter at 10.20 P.M. The names of both the accusedpersons were mentioned in the MLC Ex.PW-8/A and in thestatement Ex.PW-16/B. The death of injured Sher Singh hadnot occurred by that time. So it cannot be imagined that SIRajesh Kumar would get the case registered giving the namesof the accused persons at that time. The case had beenregistered on 18.12.97. The intimation about the death ofinjured Sher Singh was received at PS Vikas Puri on 19.12.97in the morning. The accused persons admittedly were arrestedon the intervening night of 18/19.12.97 from their respectivehouses even before the death of the deceased. All these factsclearly rule out the possibility of any manipulations orfabrications….”12.3. The Trial Court also did not find any adversity in the situationthat no statement was made to PW-18 ASI Harish by Sher Singh whenhe was being transported to the hospital. The Trial Court also rejectedthe other contentions urged on behalf of the accused appellant and heldthat even if the victim had suffered 100% burn injuries, the dyingdeclaration made by him was not to be rejected as there was nothing toshow that the mental condition of injured Sher Singh was such that hewas unable to speak and, inter alia, held as under:

“25……… I am of the view that despite suffering 100% burns,injured Sher Singh was mentally fit to make dying declaration.The certificate issued to that effect by PW-17, Dr. Rajeshclinches the entire issue.

26. ….Moreover, mere for the negligence of the IO to get recordthe dying declaration from the SDM, the dying declarationEx. PW-8/A and Ex. PW-16/B cannot be rejected on that scorealone. It is not always mandatory for the police to get recordthe dying declaration from the SDM or Ld. M.M. though therecording of the dying declaration by these officers do expire(sic) much confidence….”

12.4. One of the principal submissions on behalf of the accusedpersons had been that as per the testimony of PW-6 Rajesh, the victimhad at the first point of time made the statement to the effect that he hadput himself on fire. The Trial Court rejected this part of the statementmade by PW-6 Rajesh in his cross-examination while observing as under:

“29……The testimony of PW-6 before the court is somewhatcontradictory on many aspects. In the examination-in-chief,the witness merely stated that the victim had told his name tobe Sher Singh. In the cross-examination, he has furtherdisclosed that the victim had also given his home address i.e.A-603, J.J. Colony, Uttam Nagar. In the examination-in-chief,this witness did not depose that the victim had told to somepublic persons that since he was dropped from the tempo, he(Sher Singh) had set himself on fire. Again in the examination-in-chief, the witness did not state that the Daljit and Rinkuwere present at the spot and Daljit had told him in the eveningthat he had seen the victim carrying kerosene oil in apolythene towards that plot. Similarly, this witness did not

Adepose about preparation of cassette by T.V. persons after 2/3 days after incident and about the disclosure of Daljit Singhto them in his interview about the victim carrying keroseneoil in the polythene to that plot. The witness did not discloseall these facts in the examination-in-chief to give anopportunity to the prosecution to confront him on the factsBrecorded in his statement u/s 161 Cr.P.C. The testimony ofthis witness on all these facts does not inspire confidenceand does not shatter the dying declaration recordedsubsequently by PW-8 and PW-16. In view of abovediscussion, I am fully of the view that dying declarationsCEx.PW-8/A and Ex.PW-16/B were duly made by the deceasedSher Singh and the same were duly recorded by PW-8 Dr.Sushma and PW-16 SI Rajesh respectively.”

12.5. The Trial Court found that the two dying declarations inspiredconfidence and were worthy of reliance while observing that the sameDwere recorded at the earliest; that none of the relatives of the victimwere present at that time; and that there was nothing to suggest if thedeceased was influenced by any consideration to falsely name theaccused persons while letting the real culprits go scot free.

12.6. The Trial Court, though found that the prosecution had failedEto establish the motive of the accused persons for setting the deceasedSher Singh on fire, but observed that merely for want of proof of motive,the prosecution case could not be discarded and said as under:

“42. Though the prosecution has failed to prove specificallymotive of the accused persons to put the deceased on fire, yetFthe same is not fatal to be prosecution case. SI Rajesh Kumarhas deposed that he has made efforts to enquire the motive ofthe accused persons from the deceased but he had stoppedtalking by that time. However, it has come on record that thedeceased was known to the accused persons. The deceasedand the accused persons were the residents in the same locality.GPW-1 Raju has categorically deposed that on 2/3 occasionsearlier also dispute had taken place of the deceased withaccused Purshotam. They had not lodged any report withthe police about the quarrels due to fear. In the cross-examination the testimony of the witness regarding the quarrels

to have taken place earlier with the accused Purshotam hasnot been controverted. Nothing has been suggested by theaccused persons about the cause of quarrel with thedeceased. It is very difficult for the prosecution to establishmotive in the absence of the victim. The motive remains lockedin the heart of the accused and in view of the categoricallyallegations in the dying declaration against them, the failureof the prosecution to prove the motive positively pales intoinsignificance….”

12.7. The Trial Court also referred to the contention that no overtact was attributed to the accused appellant Purshottam but opined thatin the proven circumstances, he could not escape liability while observingas under:

“50. From the law laid down by the Hon’ble Supreme Courtin the above judgment, it is clear that accused Purshotamcannot escape the consequence simply because no overt actwas attributed to him by deceased Sher Singh in his seconddying declaration Ex.PW-16/B. Reading the substrum of boththe dying declaration as whole, I am of the view that thedeceased has implicated both the accused persons for theoffence committed by them. It was accused Purshotam whowas having previous quarrels with the deceased. So all theseproved circumstances on record clearly proved the involvementof both the accused persons in the commission of the offence.”

12.8. In the ultimate analysis, the Trial Court found proved theprosecution case beyond reasonable doubt and hence, convicted theaccused-appellants for the offence under Section 302/34 IPC andsentenced them to life imprisonment.

The High Court affirmed the conviction and sentence

13. Assailing the order of conviction, the accused persons preferredseparate appeals, being Criminal Appeal Nos. 121 of 1999 and 139 of1999 before the High Court of Delhi. The High Court reappreciated theevidence and concurred with the decision of the Trial Court while holdingthat the statement made by the deceased Sher Singh to Dr. Sushma(PW-8) and recorded by her in the MLC (Ex. PW-8/A) as also thestatement made by him to SI Rajesh Kumar (PW-16) in Ex. PW-16/B,

DEF

Awhich were considered to be the dying declarations, clearly establishedthe crime alleged against the appellants.

13.1. The High Court particularly referred to the fact that in thePCR Form (Ex. PW-7/A) the entries came to be made by PW-7 Ct.Anju not only as regards the information received at the initial stage butBfurther to that about the nature of injuries as also the particulars of thevictim with his name and address and the fact that he was admitted tothe hospital. The High Court, in comprehension of the material onrecord, found that PW-18 ASI Harish had not been truthful in his assertionthat the victim did not say anything to him because the subsequent entriesin the PCR Form (Ex. PW-7/A) could not have been made by PW-7 Ct.CAnju but for the information passed on to her by PW-18 ASI Harish,who, in turn, ought to have gathered all such particulars from the victimonly. The High Court, inter alia, observed as under:

“11…..To person with ordinary commonsense and requiringno great process of reasoning, it would be apparent that AnjuDwould write the name, the parentage, the age, the address,the 100% burnt condition of Sher Singh, kerosene oil beingused to burn him and he being removed to SafdarjungHospital only through the mouth of ASI Harish, who had daredto stare into the eyes of the judicial process and falsely stateEthat on the way to the hospital he had no talk with thedeceased……”

13.2. The High Court further proceeded to analyse the descriptionappearing in MLC Ex. PW-8/A and found that such entries wereobviously made by PW-8 Dr. Sushma on the information divulged by theFvictim himself. The High Court said,-

“14. Dr.Sushma has contemporaneously recorded that SherSingh told her that Purshottam and Suresh have set him onfire after pouring kerosene oil on him. How would Dr.Sushmaknow two names i.e. Purshottam and Suresh unless somebodyGtold her so. Obviously it is Sher Singh who gave said namesto her.”

13.3. The High Court also referred to the contents of the dyingdeclaration Ex.PW-16/B and observed as under:

“21. That in the dying declaration Ex.PW-16/B not only theHnames but the avocation and even the residential address of

the accused has been given with lethal precision lendsassurance to the truthfulness of the dying declaration sorecorded and this dying declaration is upon proof of SherSingh being fit when he made the statement, notwithstandinghis condition being critical for the reason person may be ina critical medical state but may be mentally fully conscious.”

13.4. After rejecting the contention urged on behalf of theappellants as regards the reliability of the dying declarations recorded byPW-8 Dr.Sushma and PW-16 SI Rajesh Kumar, the High Court acceptedthe case of prosecution while observing as under:

“30. The settled legal position is that dying declarationwhich inspires confidence needs no corroboration to sustainitself and in the instant case we have already discussed thatthere is sufficient evidence to bring luminance of gold to thetwo dying declarations made by Sher Singh and we do notfind the same to be copper and that there is intrinsic evidenceof truthfulness in the same for how could Dr.Sushma and SIRajesh Kumar note the name, the parentage, the age and theaddress of the deceased unless the deceased told them so.How could SI Rajesh Kumar note the names of the accused,their avocation and their residential addresses unless thedeceased told him so. These are tell tale pointers leading inthe direction of the truthfulness of the two dying declarationsmade by Sher Singh and we have no evidence that Dr.Sushmahas contrived writing on the MLC. Why should she do so?There is no evidence why SI Rajesh Kumar would contrive adocument? There is no evidence of any such contrivance onthe part of the two. Though critical, but in state of mind fitenough to make statement is the evidence which has surfacedthrough the testimony of Dr.Rajesh Verma and he is the thirdperson against whom no evidence of contrivance has emerged.31…as per the post-mortem report Ex. PW-14/A the deceaseddied due to shock consequent upon 100% ante-mortem flameburns….The state of the hands of the deceased i.e., skinpeeling on the dorsum of the hands shows the extent of theburn injuries on the hands on the dorsa side i.e. not the palmbut the outer portion of the hand and therefrom there is anindication that kerosene was doused on the deceased by

Asomebody else and not the deceased himself for if the deceasedhad poured kerosene oil on himself the same could not fallon the dorsum of the hands and if this was so we would havenot found peeling of the skin on the dorsum of the hand andthis is an additional piece of evidence wherefrom it can beinferred that somebody else doused the deceased withBkerosene and not the deceased self doused himself withkerosene.”

13.5. While rejecting the contentions urged on behalf of theappellants that the statement allegedly made by the victim Sher Singh toPW-6 Rajesh that for being dropped from the tempo he had set himselfon fire may be accepted as the first dying declaration and, while approvingthe findings of the Trial Court in paragraphs 29 of the impugned judgment,the High Court said,-

“28. The contention that Rajesh PW-6 has categoricallydeposed that when he was near Sher Singh soon after SherDSingh was seen by him engulfed in flames, somebody in thecrowd asked him as to how he had caught fire, Sher Singhreplied that since he was dropped from the tempo he had sethimself on fire and this is the first point of time on which SherSingh made dying declaration and thus the same had to beEaccepted is plea which was raised before the learned TrialJudge and has been rightly rejected and for which we acceptthe reasoning of the learned Trial Judge in para 29 of theimpugned order and since each and every reasoning of thelearned Trial Judge is accepted by us, we need not burdenour decision by re-penning the same and would comment thatFpara 29 of the impugned judgment be read as an integralpart of our present opinion.”

13.6. Therefore, the High Court, rather in its independent analysisof the evidence on record, concurred with the conclusion of guilt of theappellants and dismissed the appeals.G

Rival Contentions

14. Assailing the conviction and sentencing in the impugnedjudgment, it has been contended on behalf of appellant No. 1 that theconviction of this appellant is based only on speculations and theprosecution had even failed to prove his identity. As regards value and

worth of the alleged dying declarations of the deceased, learned counselwould argue that such dying declarations are not reliable for variousreasons and counts. The learned counsel has elaborated that the assertionoccurring in the dying declaration Ex. PW-16/B that the deceased hadconsumed liquor is falsified by the post-mortem report Ex. PW-14/Astating that there were no traces of alcohol in the body of the deceased.Learned counsel has also argued that as per PW-8 Dr. Sushma, thedeceased was suffering 100% deep burns involving whole of the bodyand the nature of the injury was grievous; and she had also testified thatthumbs of the deceased were burnt. Thus, according to the learnedcounsel, in the given status of burns, including the thumbs, assertion ofPW-16 about having obtained the thumb impressions of the deceased isclearly falsified; and dying declaration alleged to have been recorded byPW-16 appears to be doctored and manipulated document. It has alsobeen argued that PW-16 had ample opportunity to call for Magistratefor recording the dying declaration as he was allegedly declared fit bythe Doctor, but PW-16 did not do so and purportedly recorded the dyingdeclaration himself that further casts serious doubt on the correctnessof such alleged dying declaration. Learned counsel has referred toChapter 13-A of the Delhi High Court Rules to submit that as per therequirements therein, PW-16 ought to have requested the Magistrate torecord such dying declaration and in any case, ought to have taken theattestation from medical or para-medical staff in attendance but he didnot do so, and this creates further doubt on the correctness of suchstatement. Learned counsel has argued that for various infirmities andinconsistencies as also for want of corroboration, the alleged dyingdeclarations cannot be relied upon; and that being the sole basis ofconviction, the impugned judgments deserve to be set aside. The learnedcounsel has, inter alia, referred to and relied upon the decisions in Stateof Punjab v. Gian Kaur and Anr.: AIR 1998 SC 2809, Uka Ram v.State of Rajasthan: JT 2001 (4) SC 472, Dalip Singh and Ors. v.State of Punjab: AIR 1979 SC 1173, Gopal Singh and Anr. v. Stateof Madhya Pradesh and Anr.: AIR 1972 SC 1557 and ThurukanniPompiah and Anr. v. State of Mysore: AIR 1965 SC 939.

14.1. The learned counsel has further argued that there being noeye-witness and the entire matter resting upon circumstantial evidence,the appellants could not have been held guilty before establishment ofthe entire chain of circumstances and cogent corroboration of the allegeddying declarations. The learned counsel has contended that the place of

DEF

Aincident was crowded market and there were many shops in the area;and then, there was only one exit from the place of incident. Thus,according to the learned counsel, it was impossible for the accused toescape the place of incident without being spotted by any of theshopkeepers or people in the market; and they having not being spottedso, the prosecution case cannot be relied upon.B

14.2. The learned counsel has further relied upon the testimonyof PW-6 Rajesh to submit that in the very first instance, the victim madethe statement to the effect that he was dropped from the tempo he wasworking with and had set himself on fire. The learned counsel wouldcontend that PW-6 having not been declared hostile, the statement madeCby the deceased to PW-6 ought to be considered as the first dyingdeclaration and therein, the cause of incident having been stated by thedeceased as self-immolation, the prosecution case ought to fail on thiscount alone. The learned counsel has also contended that the prosecutionhas failed to examine the other persons Rinku and Daljeet whose namesDhave occurred in the testimony of PW-6 and who were present at thesite when the deceased made his statement about self-immolation.

14.3. The learned counsel has also referred to the fact that as perPW-18, who took the deceased in his PCR Van from the place of incidentto the hospital, the deceased was crying the whole way and was unableEto speak and this version, according to the learned counsel, contradictsthe testimony of PW-16 that the deceased was in fit state of mind andwas conscious to give his statement.

14.4. It has also been contended that the prosecution proved onlyPart I of the document Ex. PW-7/A but not Parts II, III and IV thereofFand such other parts appear to be doctored and manipulated. The learnedcounsel has also argued that the prosecution has failed to prove anymotive on part of appellant No. 1 to commit the alleged offence and thehearsay testimony of PW-1 about his having heard from his mother aboutthe quarrel between appellant No. 1 and the deceased is not of anyvalue or substance. Learned counsel would also contend that deceasedGhimself had nowhere mentioned in any of the alleged dying declarationsabout the motive behind the crime; and the prosecution also having failedto prove any such motive, the prosecution case cannot be said to havebeen established beyond reasonable doubts. It has also been argued thatthe appellant No. 1 being shorter in height than the deceased, there wasHno likelihood of him throwing kerosene on the head of the deceased.

14.5. Lastly, with reference to the decision in Sharad BirdhiChand Sarda v. State of Maharashtra: (1984) 4 SCC 116, learnedcounsel has contended that when two views are possible on evidence,one pointing to the guilt of the accused and another to his innocence, theaccused is entitled to the benefit of the one which is favourable to him.

15. While assailing the conviction and sentencing, learned counselfor the appellant No. 2 has argued that the alleged dying declarationsare not reliable and conviction could not have been based thereupon. Ithas been contended that the dying declarations are unreliable for variousreasons that: (a) the OPD Card which was the first document preparedby the Hospital was not produced on record; (b) the tone and tenor ofthe language used in Ex. PW-8/A shows that it could not have been thestatement of the deceased since he was in critical condition; (c) that thedocument Ex. PW-16/B, recorded almost three hours after the allegedfirst statement could not have been more detailed when the condition ofdeceased was critical and as per the treating Doctor PW-9, the conditionof the deceased was continuously deteriorating; (d) that the thumbimpression of the deceased on the dying declarations is entirely doubtfulwhen he had suffered 100% burns all over the body; (e) that there wereno indication of liquor consumption in MLC or post-mortem report; (f)that if the deceased had consumed half bottle of liquor, his making longnarrative with intelligible and coherent statement remains doubtful; (g)and that no effort was made to requisition the services of Magistrate forthe purpose of recording the dying declarations. Thus, according to thelearned counsel, the dying declarations do not pass through the test oftruthfulness and reliability and cannot be acted upon.

15.1. The learned counsel for appellant No. 2 has also stronglyrelied upon the testimony of PW-6 Rajesh who was not declared hostile;and has contended that the entire prosecution case fails when it is noticedthat his version about self-immolation by the deceased is in sharp contrastto the contents of the alleged dying declarations.

15.2. The learned counsel for the appellant No. 2 has furthercontended that the prosecution has failed to establish any motive forcommission of crime by this appellant and, with reference to the decisionin Kalabai v. State of Madhya Pradesh: 2019 SCC ONLINE SC621, has argued that motive having not been proved, conviction underSection 302 IPC is not sustainable.

A15.3. Learned counsel has also urged in the alternative that in thegiven set of facts and circumstances, even if the conviction of theappellant No. 2 is to be maintained, the same may be altered to the oneunder Part II of Section 304 IPC.

16. Per contra, the learned senior counsel for the respondent hasBstrenuously argued that the prosecution case clearly stands establishedby the two dying declarations independently recorded, one by PW-8Dr.Sushma and another by PW-16 SI Rajesh. Learned counsel hasreferred to the Constitution Bench decision of this Court in the case ofLaxman v. State of Maharashtra: (2002) 6 SCC 710 as also otherdecisions of this Court in State of Madhya Pradesh v. Dal Singh:C(2013) 14 SCC 159 and in Bhagwan v. State of Maharashtra: (2019)8 SCC 95 to submit that on the settled principles relating to acceptabilityof dying declaration, the contentions urged on behalf of the appellantsdeserve to be rejected. The learned counsel would submit that the twodying declaration are consistent on material points and features and theDsame have rightly been accepted by the Trial Court as also by the HighCourt. The learned counsel would also submit that at the time of recordingof Ex. PW-8/A, no relative or acquaintance of the victim was presentand any possibility of tutoring is totally ruled out. According to the learnedcounsel, there was no occasion for PW-8 Dr.Sushma to record theparticulars of the deceased and other information of her own imagination;Eand such particulars and information could have occurred in Ex. PW-8/A only when divulged by the victim himself. Learned counsel furthersubmitted that even the question regarding thumb impression pales intoinsignificance when it is noticed that there is no such thumb impressionon Ex. PW-8/A.F

16.1. In regard to the thumb impression on Ex. PW-16/B, thelearned senior counsel has contended that even if the victim had allegedlysuffered 100% burns, the evidence is not to the fact that inner side ofthe hand/palm was also burnt to the extent that the victim could not haveput his thumb impression; and post-mortem report would also show thatGdorsum of the hand was burnt and therefore, taking of thumb impressionon Ex. PW-16/B is not ruled out. The learned counsel has contendedthat, again, there was no occasion for PW-16, to record all the particularsof the victim as also the offenders including their addresses, unless givenout by the victim himself; and there is no reason to discard this dyingdeclaration Ex. PW-16/B either.H

16.2. As regards the possibility of the victim having set himself onfire and the want of evidence of other persons named by PW-6, thelearned senior counsel has contended that such theory of self-immolationas also the names of other persons essentially came to be introduced inthe cross-examination of PW-6 Rajesh and therefore, the burden wason the accused persons to establish such theory and to examine suchalleged persons; and no fault could be fastened on prosecution if suchpersons were not examined. According to the learned counsel, thedefence having failed to establish the theory of self-immolation, thecontentions urged on behalf of the appellants deserve to be rejected.

16.3. The learned senior counsel has further argued that so far asthe question of motive is concerned, though the possibility of motive hascome on record in the testimony of PW-1 Raju but in any case, even ifthe prosecution has not been able to lead cogent evidence as regardsmotive, the accusations against the appellants do not fail, particularly inview of the facts occurring in the two dying declarations.

16.4. Thus, according to the learned counsel for the respondent,the dying declarations have rightly been accepted in this case and theconviction of the appellants on that basis calls for no interference.

17. Having given thoughtful consideration to the rival submissionsand having examined the record, we find no reason to considerinterference in the conviction of the appellants and, in our view, theseappeals must fail.

Admission and acceptability of dying declaration: theprinciples

18. The principles relating to admission and acceptability of thestatement made by victim representing the cause of death, usuallyreferred to as dying declaration, are well settled and few doubts asregards pre-requisites for acceptability of dying declaration were alsoput at rest by the Constitution Bench of this Court in the case of Laxmanv. State of Maharashtra: (2002) 6 SCC 710.

18.1. In the said case of Laxman, conviction of the appellant wasbased on dying declaration of the deceased which was recorded by theJudicial Magistrate. The Session Judge and the High Court found suchdying declaration to be truthful, voluntary and trustworthy; and recordedconviction on that basis. In appeal to this Court, it was urged with reference

378SUPREME COURT REPORTS

Ato the decision in Paparambaka Rosamma and Ors. v. State of AndhraPradesh: 1999 CriLJ 4321 that the dying declaration could not havebeen accepted by the Court to form the sole basis of conviction sincecertification of the doctor was not to the effect that the patient was in afit state of mind to make the statement. On the other hand, it wascontended on behalf of the State, with reference to the decision in KoliBChunilal Savji and Anr. v. State of Gujarat: 1999 CriLJ 4582, thatthe material on record indicated that the deceased was fully consciousand was capable of making statement; and his dying declaration cannotbe ignored merely because the doctor had not made the endorsementabout his fit state of mind to make the statement. In view of theseCsomewhat discordant notes, the matter came to be referred to the LargerBench. The Constitution Bench summed up the principles applicable asregards the acceptability of dying declaration in the following:-

“3. The juristic theory regarding acceptability of dyingdeclaration is that such declaration is made in extremity, whenDthe party is at the point of death and when every hope of thisworld is gone, when every motive to falsehood is silenced,and the man is induced by the most powerful considerationto speak only the truth. Notwithstanding the same, greatcaution must be exercised in considering the weight to begiven to this species of evidence on account of the existenceEof many circumstances which may affect their truth. Thesituation in which man is on the deathbed is so solemn andserene, is the reason in law to accept the veracity of hisstatement. It is for this reason the requirements of oath andcross-examination are dispensed with. Since the accused has

no power of cross-examination, the courts insist that the dyingdeclaration should be of such nature as to inspire fullconfidence of the court in its truthfulness and correctness.The court, however, has always to be on guard to see that thestatement of the deceased was not as result of either tutoring

or prompting or product of imagination. The court also mustfurther decide that the deceased was in fit state of mindand had the opportunity to observe and identify the assailant.Normally, therefore, the court in order to satisfy whether thedeceased was in fit mental condition to make the dyingdeclaration looks up to the medical opinion. But where the

eyewitnesses state that the deceased was in fit and consciousstate to make the declaration, the medical opinion will notprevail, nor can it be said that since there is no certificationof the doctor as to the fitness of the mind of the declarant, thedying declaration is not acceptable. dying declaration canbe oral or in writing and any adequate method ofcommunication whether by words or by signs or otherwisewill suffice provided the indication is positive and definite. Inmost cases, however, such statements are made orally beforedeath ensues and is reduced to writing by someone like aMagistrate or doctor or police officer. When it is recorded,no oath is necessary nor is the presence of Magistrateabsolutely necessary, although to assure authenticity it is usualto call Magistrate, if available for recording the statementof man about to die. There is no requirement of law that adying declaration must necessarily be made to Magistrateand when such statement is recorded by Magistrate there isno specified statutory form for such recording. Consequently,what evidential value or weight has to be attached to suchstatement necessarily depends on the facts and circumstancesof each particular case. What is essentially required is thatthe person who records dying declaration must be satisfiedthat the deceased was in fit state of mind. Where it is provedby the testimony of the Magistrate that the declarant was fitto make the statement even without examination by the doctorthe declaration can be acted upon provided the courtultimately holds the same to be voluntary and truthful. Acertification by the doctor is essentially rule of caution andtherefore the voluntary and truthful nature of the declarationcan be established otherwise.”

18.2. The Constitution Bench affirmed the view in Koli ChunilalSavji (supra) while holding that Paparambaka Rosamma (supra), wasnot correctly decided. The Court said,-

“5…….It is indeed hyper technical view that the certificationof the doctor was to the effect that the patient is consciousand there was no certification that the patient was in fitstate of mind especially when the Magistrate categoricallystated in his evidence indicating the questions he had put to

ABCD

the patient and from the answers elicited was satisfied thatthe patient was in fit state of mind whereafter he recordedthe dying declaration. Therefore, the judgment of this Courtin Paparambaka Rosamma v. State of A.P.(1999) 7 SCC 695must be held to be not correctly decided and we affirm thelaw laid down by this Court in Koli Chunilal Savji v. State ofGujarat (1999) 9 SCC 562.”

19. In the case of Dal Singh (supra), this Court has pointed outthat the law does not provide as to who could record dying declarationnor is there prescribed format or procedure for the same. All that isrequired is the person recording dying declaration must be satisfied thatthe maker is in fit state of mind and is capable of making such astatement. This Court also pointed out that as to whether in given burncase, the skin of thumb had been completely burnt or if some part of itwill remain intact, would also be question of fact. This Court said,-“20. The law on the issue can be summarised to the effectthat law does not provide who can record dying declaration,nor is there any prescribed form, format, or procedure forthe same. The person who records dying declaration mustbe satisfied that the maker is in fit state of mind and iscapable of making such statement. Moreover, therequirement of certificate provided by doctor in respectof such state of the deceased, is not essential in every case.

21. Undoubtedly, the subject of the evidentiary value andacceptability of dying declaration, must be approached withcaution for the reason that the maker of such statementcannot be subjected to cross-examination. However, the courtmay not look for corroboration of dying declaration, unlessthe declaration suffers from any infirmity.

22. So far as the question of thumb impression is concerned,the same depends upon facts, as regards whether the skin ofthe thumb that was placed upon the dying declaration wasalso burnt. Even in case of such burns in the body, the skinof small part of the body i.e. of the thumb, may remain intact.Therefore, it is question of fact regarding whether the skin

of the thumb had in fact been completely burnt, and if not,whether the ridges and curves had remained intact.”

19.1. In the case of Bhagwan (supra), this Court accepted thedying declaration made by person having suffered 92% burn injuryand whose continued consciousness was certified by the doctor. ThisCourt referred to the decision in Vijay Pal v. State (Government ofNCT of Delhi): (2015) 4 SCC 749, where the statement made by thevictim having suffered 100% burn injury was also accepted. This Courtsaid :-

“ 23…..(B). Can person who has suffered 92% burn injuriesbe in condition to give dying declaration?

24. This question is also no longer res integra. In Vijay Pal v.State (NCT of Delhi): 2015 (4) SCC 749, we notice the followingdiscussion: (SCC p. 759, paras 23-24)

‘23. It is contended by the learned counsel for the appellantthat when the deceased sustained 100% burn injuries, shecould not have made any statement to her brother. In thisregard, we may profitably refer to the decision in MafabhaiNagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69 whereinit has been held that person suffering 99% burn injuriescould be deemed capable enough for the purpose of makinga dying declaration. The Court in the said case opinedthat unless there existed some inherent and apparent defect,the trial court should not have substituted its opinion forthat of the doctor. In the light of the facts of the case, thedying declaration was found to be worthy of reliance.

24. In State of M.P. v. Dal Singh: (2013) 14 SCC 159, two-Judge Bench placed reliance on the dying declaration ofthe deceased who had suffered 100% burn injuries on theground that the dying declaration was found to be credible.’

25. Therefore, the mere fact that the patient suffered 92%burn injuries as in this case would not stand in the way ofpatient giving dying declaration which otherwise inspiresthe confidence of the Court and is free from tutoring, andcan be found reliable.”

20. In the case of Gian Kaur (supra), the dying declaration wasdisbelieved on the ground that though as per medical evidence thedeceased had 100% burn injuries but the thumb mark appearing on thedying declaration had clear ridges and curves. The benefit of doubtextended by the High Court was found to be not unreasonable and hence,this Court declined to interfere while observing as under:-

“5. The High Court disbelieved the dying declaration on theground that even though according to the medical evidenceRita had 100% burns, the thumb mark of Rita appearing onthe dying declaration had clear ridges and curves. The HighCourt found the evidence of Dr Ajay Sahni-PW 1 not reliableas he failed to satisfactorily explain how such thumb markcould appear on the dying declaration when Rita had 100%burns over her body. The High Court relied upon thedeposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100%burns over her body and both the thumbs of Rita were burnt.

In view of such inconsistent evidence, the High Court wasright in giving benefit of doubt to the respondents. It cannotbe said in this case that the High Court has taken anunreasonable view.”

E20.1. In the case of Gopal Singh (supra), the Court found thatthe dying declaration did not contain complete names and addresses ofthe persons charged with the offence and it was found that convictioncould not be based on such dying declaration alone without corroboration.Essentially, for the infirmity carried by such dying declaration, this Courtfound lesser justification for the High Court’s interference with the orderFof acquittal while observing as under:-

“8. But even if we assume that the High Court was right inconcluding that the dying declaration established the identityof the appellants, it was certainly not of that character aswould warrant its acceptance without corroboration. It issettled law that court is entitled to convict on the sole basisof dying declaration if it is such that in the circumstancesof the case it can be regarded as truthful. On the other handif on account of an infirmity, it cannot be held to be entirelyreliable, corroboration would be required……”

20.2. In the case of Dalip Singh (supra), the alleged dyingdeclaration turned out to be doubtful for it contained such facts whichcould not have been in the knowledge of the deceased and hence, thisCourt found it unsafe to rely on the same while observing as under: -

“9.…..The dying declaration seems to be otherwise truthfulbut for the fact that it could not be within the knowledge orvision of Teja Singh that Jetha Singh was murdered by theappellants. His saying so in the dying declaration makes hisstatement bit doubtful. It is, therefore, safe to leave out ofconsideration this dying declaration….”

20.3. In the case of Thurukanni Pompiah (supra), this Courtheld that while truthful and reliable dying declaration may form thesole basis of conviction, even without corroboration but the Court mustbe satisfied about its truthfulness and reliability; and if the Court findsthat the declaration is not wholly reliable and material portion of thedeceased’s version of the occurrence is untrue, the Court may, in thecircumstances of given case, may consider it unsafe to convict theaccused on the basis of the declaration alone without furthercorroboration. This Court observed, inter alia, as under:-“10. Under clause (1) of Section 32 of the Indian EvidenceAct, 1872, statement made by person who is dead, as tothe cause of his death or as to any of the circumstances of thetransaction which resulted in his death is relevant fact incases in which the cause of that person’s death comes intoquestion, and such statement is relevant whether the personwho made it was or was not, at the time when it was made,under expectation of death, and whatever may be the natureof the proceeding in which the cause of his death comes intoquestion. The dying declaration of Eranna is therefore relevantand material evidence in the case. truthful and reliable dyingdeclaration may form the sole basis of conviction, even thoughit is not corroborated. But the Court must be satisfied that thedeclaration is truthful. The reliability of the declaration shouldbe subjected to close scrutiny, considering that ‘it was madein the absence of the accused who had no opportunity to testits veracity by cross-examination. If the Court finds that thedeclaration is not wholly reliable and material and integral

portion of the deceased’s version of the entire occurrence isuntrue, the Court may, in all the circumstances of the case,consider it unsafe to convict the accused on the basis of thedeclaration alone without further corroboration.”

20.4. In the case of Uka Ram (supra), this Court again emphasisedBon the requirement that the Court should be satisfied about trustworthinessof the dying declaration, its voluntary nature and fitness of the mind ofthe deceased and it was held that:

“6. ….Once the court is satisfied that the dying declarationwas true, voluntary and not influenced by any extraneousCconsideration, it can base its conviction without any furthercorroboration as rule requiring corroboration is not ruleof law but only rule of prudence.”

20.4.1. In the said case of Uka Ram, however, the Court foundthat the deceased was mental patient and there existed doubt aboutDmental condition of the deceased at the time of making the dyingdeclaration. In the given circumstances, this Court found that to be fitcase to extend the benefit of doubt to the accused.

21. For what has been noticed hereinabove, some of the principlesrelating to recording of dying declaration and its admissibility and reliabilityEcould be usefully summed up as under:-

i) dying declaration could be the sole basis of conviction evenwithout corroboration, if it inspires confidence of the Court.

ii) The Court should be satisfied that the declarant was in fitstate of mind at the time of making the statement; and that it was aFvoluntary statement, which was not the result of tutoring, prompting orimagination.

iii) Where dying declaration is suspicious or is suffering fromany infirmity such as want of fit state of mind of the declarant or of likenature, it should not be acted upon without corroborative evidence.

iv) When the eye-witnesses affirm that the deceased was not in afit and conscious state to make the statement, the medical opinion cannotprevail.

v) The law does not provide as to who could record dyingdeclaration nor there is any prescribed format or procedure for the same

but the person recording dying declaration must be satisfied that themaker is in fit state of mind and is capable of making the statement

vi) Although presence of Magistrate is not absolutely necessaryfor recording of dying declaration but to ensure authenticity andcredibility, it is expected that Magistrate be requested to record suchdying declaration and/or attestation be obtained from other personspresent at the time of recording the dying declaration.

vii) As regards burns case, the percentage and degree of burnswould not, by itself, be decisive of the credibility of dying declaration;and the decisive factor would be the quality of evidence about the fit andconscious state of the declarant to make the statement.

viii) If after careful scrutiny, the Court finds the statement placedas dying declaration to be voluntary and also finds it coherent andconsistent, there is no legal impediment in recording conviction on itsbasis even without corroboration.

22. Applying the relevant principles to the facts of the presentcase, we have not an iota of doubt that the appellants have rightly beenconvicted on the basis of the statements of the victim Sher Singh, asrecorded by PW-8 Dr. Sushma and PW-16 SI Rajesh Kumar.

Testimony of PW-8 and the contents of Ex. PW-8/A

23. As noticed, it is clearly established on record that the victimSher Singh, when found engulfed in fire, information was received inPCR and its Van reached the place of incident within minutes of incident;and the victim was immediately placed in the Van and was taken toSafdarjung Hospital. Though it appears from the testimony of PW-9 Dr.H.K. Sharma as also of PW-8 Dr. Sushma that the first documentprepared at the time of admission of the patient is OPD slip; and suchOPD slip in this matter has not been produced on record. However,such omission of the prosecution, in our view, has no bearing on thesubstance of the matter because immediately after preparation of theOPD slip, the victim was taken to the Burns Ward and detailed Medico-Legal Case Report was prepared by PW-8 Dr. Sushma. The incidenthad taken place at about 3.00-3.15 p.m. and the MLC report (Ex. PW-8/A) was prepared by Dr. Sushma at 4.35 p.m. There had not beenunnecessary time gap between the occurrence and the preparation of

AMLC particularly when major part of time was spent in the process oftransportation.

23.1. The significant feature of the case is that in the said MLCreport (Ex. PW-8/A), PW-8 specifically mentioned the particulars andinformation as given out by the victim himself. As noticed, in theBinformation particulars, this doctor clearly stated the version of the victimthat he sustained burn injury ‘when some Purshottam & Suresh(telwala) threatened him & then poured kerosene on him & set himon fire’. It is noticed that in Ex. PW-8/A the word ‘telwala’ came to bementioned within brackets and was written in Hindi (being vernacularexpression), although other contents of this document were filled up inCEnglish. PW-8 had been categorical in her assertion that the patient hadhimself informed her about the alleged history behind his sustaining burninjuries. There is absolutely nothing on record to disbelieve or even doubtthe statement of PW-8 Dr. Sushma. On the contrary, such recording ofthe expressions verbatim by the doctor lends credence to her testimonyDand the document prepared by her. In our view, with this testimony ofPW-8 it is established beyond doubt that in his first version in the hospital,the victim Sher Singh asserted that Purshottam and Suresh pouredkerosene oil on him and set him on fire. It is also established that Sureshwas identified by the victim as ‘telwala’ and it has not been doubted thatin the slang expressions, the reference had been to the one dealing inEsome kind of oil business. These are the first traces with names andslight particulars of the assailants. As shall be noticed hereafter, in thesequence of circumstances, the expressions have rightly been fastenedon the appellants.23.2. It is also noteworthy that in Ex. PW-8/A, the doctor PW-8FSushma mentioned all other features relating to the medical condition ofthe patient and recorded that he had suffered ‘burn injuries involvingwhole of the body surface area-100% deep burn’. However andeven while mentioning that the general condition of the patient was‘critical’, it was also recorded in Ex. PW-8/A that the patient wasG‘conscious, oriented’. It is but clear from the contents of Ex. PW-8/Aabout the condition of the victim Sher Singh that though the doctor foundhim to be in critical condition with 100% deep burns yet, he was consciousand oriented. In other words, he was neither unconscious nor disoriented.In yet other words, he was neither insensate nor confused. Suchsignificant noting about the mental faculties of the victim at the time ofH

giving out the narratives to the doctor makes it clear that even when hewas suffering from the agony of 100% deep burns, he was not in anunfit state of mind; and there appears no reason to disbelieve his firstversion as recorded in Ex. PW-8/A.

Testimony of PW-16 and the contents of Ex. PW-16/B

24. The statement (Ex.PW-16/B) said to have been made by thevictim Sher Singh to PW-16 SI Rakesh Kumar, as recorded in hospital inHindi language, has in fact been the pivot of the prosecution case. Thisstatement as also the testimony of PW-16 SI Rakesh Kumar hasundergone thorough scrutiny by the Trial Court as also by the High Court,as noticed in the extraction hereinbefore. We have yet again examinedthe testimony of PW-16 as also the contents of Ex. PW-16/B and findno reason to take any view different. The presence ofPW-16 in thathospital at the relevant point of time has not been questioned and it isclearly established on record that before recording the statement of thevictim, he moved the application Ex. PW-16/A whereupon PW-17 Dr.Rajesh Verma declared the patient fit for making statement. Thereafter,PW-16 proceeded to record the statement of victim and it has not beenshown on record if anyone related with deceased was present at thetime of recording of his statement by PW-16. Any possibility of tutoringor prompting is totally ruled out. As noticed, in the statement, the victimeven stated the registration number of the vehicle he was employed andgave out the names and addresses of the appellants while stating theirrespective roles in the incident in question. At the time of making thesaid statement, the victim Sher Singh was suffering from 100% deepburn injuries and was in critical condition. In the given state, elaborationon the motive etc., was least expected from him. PW-16 appears tohave recorded whatever was given out by the victim; and there appearsnothing of any manipulation by him.

The two statements Ex. PW-8/A and Ex. PW-16/B are dyingdeclarations

25. For what has been observed hereinabove, it is but clear that inhis first version before the doctor, the victim Sher Singh named [REDACTED] as his assailants and particulars of these persons were fullydescribed by him in the statement made to PW-16 only few hoursbefore his demise. It has not been disputed that particulars and addressesas stated by the victim in his statement Ex. PW-16/B had been of the

Aappellants only. It, therefore, emerges that the victim, before his demise,alleged that the appellant No. 2 had put him on fire and the appellant No.1 was his accomplice. While recording his version in Ex. PW-8/A, thedoctor PW-8 mentioned that he was conscious and oriented. On theother hand, before recording the statement of the victim (Ex. PW-16/B),PW-16 obtained the certification from PW-17 Dr. Rajesh Verma thatBthe patient was fit to give his statement. In the given set of circumstances,we find no infirmity that the Trial Court and the High Court acceptedthat the victim was in fit state of mind to give the statement. It has alsonot been established on record that the statements of the victim were anoutcome of tutoring or figment of imagination. In other words, theCstatements appear to be voluntary and were given in fit state of mind.In the given set of circumstances, the statements so made by the victimcould be acted upon as dying declarations. However, before reaching tothe conclusion on the basis of these statements, it would be appropriateto deal with the criticism offered on behalf of the appellants.

D25.1. It has been contended that the statement Ex. PW-16/Bcannot be accepted for the same having not been recorded by or in thepresence of Magistrate nor any attestation having been obtained. Chapter13-A of Delhi High Court Rules has also been referred. In our view, thesaid rules as regards the expected manner of recording of dyingdeclaration, by their very nature, could only be considered directly and itEcannot be laid down that want of compliance of any of the expectationtherein would result in discarding of recorded dying declaration. Theexpectations in the said rules that the dying declaration be recorded by aJudicial Magistrate; the fitness of the declarant be examined; thestatement be in the form of simple narrative; signature or thumbFimpression of the declarant be obtained etc. are all, obviously, intendedto ensure that the dying declaration is recorded in the manner that itscredence does not remain questionable. However, particular statement,when being offered as dying declaration and satisfies all the requirementsof judicial scrutiny, cannot be discarded merely because it has not been

recorded by Magistrate or that the police officer did not obtain attestationGby any person present at the time of making of the statement. Even inthis regard, the witness PW-19 Inspector Om Prakash has pointed outthat when asked to attest the statement of Sher Singh as recorded by SIRajesh Kumar, the doctor pointed out that the facts had already beenmentioned in the MLC and there was no need to attest the statement.H

Taking an overall view of the matter, we find no reason that the statementEx. PW-16/B be discarded only for want of its recording by Magistrateor for want of attestation.

25.2. Another emphasis laid on behalf of the appellants is on thefact that the victim Sher Singh had suffered 100% burns and he wasalready in critical condition and further to that, his condition was regularlydeteriorating. It is, therefore, contended that in such critical anddeteriorating condition, he could not have made proper, coherent andintelligible statement. The submissions do not make out case forinterference. As laid down in Vijay Pal’s case and reiterated in Bhagwan’scase (supra), the extent of burn injuries – going beyond 92% and even to100% - would not, by itself, lead to conclusion that victim of such burninjuries may not be in position to make the statement. Irrespective ofthe extent and gravity of burn injuries, when the doctor had certified himto be in fit state of mind to make the statement; and the person recordingthe statement was also satisfied about his fitness for making suchstatement; and when there does not appear any inherent or apparentdefect, in our view, the dying declaration cannot be discarded. Contra towhat has been argued on behalf of the appellants, we are of the viewthat the juristic theory regarding acceptability of statement made by aperson who is at the point of death has its fundamentals in the recognitionthat at the terminal point of life, every motive to falsehood is removed orsilenced. To fire victim like that of present case, the gravity of injuriesis an obvious indicator towards the diminishing hope of life in the victim;and on the accepted principles, acceleration of diminishing of hope oflife could only obliterate the likelihood of falsehood or improper motive.Of course, it may not lead to the principle that gravity of injury woulditself lead to trustworthiness of the dying declaration. As noticed, therecould still be some inherent defect[4] for which statement, even ifrecorded as dying declaration, cannot be relied upon withoutcorroboration. Suffice would be to observe to present purpose that merelyfor 100% burn injuries, it cannot be said that the victim was incapable tomake statement which could be acted upon as dying declaration.

25.3. The suggestions have also been made that the victim was in100% burnt condition and therefore, the alleged statements Ex. PW-8/Aand PW-16/B are manipulated and manufactured. We find nothing ofsubstance in such suggestions for there had not been shown any reason

4 As had been in Dalip Singh’s case (supra).

Afor which PW-8 Dr.Sushma and PW-16 SI Rajesh Kumar wouldmanufacture any such document. Interestingly, certain suggestions weremade to PW-19 Inspector Om Prakash in his cross-examination abouthis previous exchange of hot words or altercation with the accusedpersons. However, there was no such suggestion to PW-16 or to PW-8.For the same reason, the doubts sought to be suggested about availabilityBof thumb impression of the victim on the statement Ex. PW-16/B deserveto be rejected. In the case of Dal Singh (supra), this Court has pointedout that in the case of burns, the skin of small part of the body likethumb may remain intact; and it is essentially question of fact as towhether skin of thumb had also been burnt completely. In this regard, itCis also noticeable that even when the victim was carrying 100% deepburns, as per the post-mortem report, peeling of skin was noticed ondorsum of hands and therefore, taking of thumb impression on Ex. PW-16/B is not ruled out. The concurrent findings of the Trial Court and theHigh Court in accepting the thumb impression on Ex. PW-16/B do notappear calling for any interference. It gets, perforce, reiterated that thereDappears no reason for PW-16 to go to the extent of manufacturing thedocument with false thumb impression.25.4. Another contention urged on behalf of the appellants hasbeen that the victim, as per his statement, had allegedly consumed halfbottle of liquor before being put on fire but, as per post-mortem report,Eno such liquor was found in the dead body. This apart, if he had consumedliquor, there was less probability of his talking coherently. We find thesecontentions also lacking in substance. It had been case of fire injuryand as per the post-mortem report, the liver, spleen, kidney and otherbody-parts were found congested. In such fire injury case, no adverse

Fconclusion can be drawn against the statement made by the victim abouthis having consumed some liquor and for this reason, the reliability of allother facts stated in his statement cannot be doubted. As noticed, he hadgiven his complete particulars including address at the time of admissionto the hospital and it has not been shown if such particulars were narrated

by anyone else. He had stated in his statement Ex. PW-16/B even theGvehicle registration number on which he was employed and then hadgiven the names and addresses of both the appellants while stating thatappellant No. 2 Suresh poured kerosene on him and appellant No. 1Pushottam was also there; and the appellant No. 2 set him on fire bylighting of match. It is difficult to say that victim was unable to make theHstatement coherently.

25.5. For what has been discussed hereinabove, we are clearly ofthe view that the two statements Ex. PW-8/A and Ex. PW-16/B haverightly been accepted as dying declarations of Sher Singh, as made fewhours before his demise and there is no reason to discard the same. Inthe given set of facts and circumstances, where these two dyingdeclarations inspire confidence, we are clearly of the view that theycould be relied and acted upon even without corroboration.

Testimony of PW-6

26. great deal of emphasis has been made in this case withreference to the testimony of PW-6 Rajesh and it has been contendedon behalf of the appellants that as per this testimony, the victim had atthe first point of time made the statement about self-immolation for thereason of himself having been dropped from tempo. It is contended thatsuch statement by the victim ought to be taken as his first dyingdeclaration. Having closely scrutinized the testimony of this witness PW-6 Rajesh, we are satisfied that the version as attempted to be given byhim in the cross-examination has rightly been rejected by the Trial Courtand by the High Court.

26.1. Noticeable it is that this witness PW-6, in the examination-in-chief deposed that on hearing the screams and having seen the smoke,he reached the spot; that other people from market also reached thespot; that he saw person burning on fire; that water was thrown on theburning body of the victim from nearby tap and the victim identifiedhimself as Sher Singh; and that someone from the market telephoned atnumber 100 whereupon the police reached the spot. This witness did notstate anything in his examination-in-chief about the victim having toldanyone about self-immolation and therefore, there was no occasion forthe prosecution to declare him hostile and to confront him with his previousstatement. Moreover, though the story about the victim having assertedthat he had set himself on fire came to be introduced by this witness inhis cross-examination on behalf of the appellant No. 1 but the value andworth of such suggestion was effectively demolished by this witnesshimself in his further statement in cross-examination on behalf of theappellant No. 2 where he categorically stated that “victim Sher Singhhas not told the people present in my presence that he had put himselfon fire”. In this cross-examination, the witness attempted to impute theknowledge about such statement to one Tony. Obviously, the suggestion

Aas occurring in the statement of PW-6 about self-immolation by the victimhad been of remote hearsay and is not of any worth at all.

26.2. In the same sequence, the contentions urged on behalf ofthe appellants about want of examination of other persons named byPW-6 falls to the ground because such names and their roles came to beBintroduced only in the statement made by PW-6 in his cross-examination.In the given context, it has rightly been contended on behalf of therespondent that the theory of self-immolation as also the names of theother persons, who allegedly reached the spot, having come up by wayof cross-examination of PW-6, the burden was on the accused personsto establish such theory by cogent evidence. No such attempt was madeCon behalf of the accused-appellants to prove any such fact or to examine

any such named person.

26.3. As noticed, the appellant No. 1 attempted to suggest in hisstatement under Section 313 CrPC that he was politically known personand was falsely implicated by certain persons ‘adversely interested’Dagainst him. No such evidence is placed on record as to who were suchpersons and as to why they would be falsely implicating him in murdercase. Thus, the incomplete and uncertain defence theory has rightlybeen rejected and we have no hesitation in endorsing the findings recordedin the impugned judgments in that regard.

EOther Contentions

27. Although we have found that the two statements made by thevictim and recorded in Ex. PW-8/A and Ex. PW-16/B could be reliedupon as his dying declarations and thereby the complicity of appellantsin the crime is established; and we have also rejected the contentionsFurged with reference to the testimony of PW-6 yet, the other contentionsurged on behalf of the appellants need to be examined before reachingto final conclusion.

27.1. It has been argued that the prosecution has not been able toestablish the identity of assailants in this crime. The submission has noGsubstance when the particulars as occurring in the two statements Ex.PW-8/A and Ex. PW-16/B are examined and analysed, whereinoccupation of at least one of the assailant and then the names andaddresses of both the appellants came to be mentioned. For this veryreason, the other contention that the incident took place in crowded

market place and the appellants were not seen by anyone also pales intoinsignificance.

27.2. The submission that prosecution has not been able to establishthe motive for crime is also of no effect because, in the first place, in adeath case, the motive remains essentially known to the deceased andto the offender; and prosecution case cannot fail only for want ofproof of motive. This apart, in the present case, the indications of anexisting dispute of the deceased with appellant No. 1 do appear in thetestimony of the brother of the deceased, PW-1 Raju. It is also noticedthat the deceased and the accused persons were the residents of thesame locality.

27.3. The contention that only Part I of the PCR is proved and notthe other parts is also not correct. It is noticed from the record that PW-7 Ct. Anju was examined on 12.08.1998 when her statement was deferredfor summoning the concerned record and then, her statement was furtherrecorded on 31.08.1998 when she brought the original proforma of PCRand the photocopy of the same was taken on record as Ex. PW-7/B. Inour view, the High Court has rightly relied upon the information reflectedin Parts II, III and IV of PCR form, which clearly show that not only theinitial information was recorded about the victim being on fire but furtherinformation were recorded from time to time during the course oftransporting and admitting the victim to hospital, where not only hisaddress came to be mentioned but the names of the assailants alsosurfaced. The said document having been produced before the Courtand its copy having been taken on record, with PW-7 having proved thatsame, it would not be justified to discard the same.27.4. substantial deal of argument had been with reference tothe statement of PW-18 ASI Harish who asserted that the victim, whilebeing taken to hospital in PCR Van and even in hospital, did not speak tohim and was only crying in pain. The High Court has made scathingremarks about this witness PW-18. Some of the remarks appear justified,particularly when PW-18 attempted to say that he came to know thename of the victim in the hospital from the persons present there. Nosuch persons were otherwise shown on record and from the testimonyof PW-8 Dr. Sushma, it is established that the particulars in MLC reportcame to be mentioned by her as per the information divulged by thevictim himself. For the reasons best known to him, PW-18, who hadtaken the victim to hospital, attempted to say that the victim was not in

Acondition to speak and thereby, attempted to disown whatever informationthat was given by the victim during the process of transportation.However, this aspect does not require further dilation for the other factsestablished on record, including the fact that the victim was consciousand oriented at the time of admission to the hospital and made thestatements in fit state of mind.B

27.5. Another contention urged on behalf of the appellants aboutconverting the present case to that under Section 304 Part II for theoffence of culpable homicide not amounting to murder has only beennoted to be rejected. The act of pouring kerosene over person andthen putting him on fire by lighting match has all the ingredients ofCdoing an act with the intention of causing death of person in gruesomemanner. The conviction of the appellants for the offence of murderappears justified and we find no reason to convert the same into anyoffence of lesser degree. Therefore, the submissions made on behalf ofthe appellants with reference to the decisions in Sharad Birdhi ChandDSarda and Kalabai (supra) also deserve to be, and are, rejected.

27.6. Another suggestion on behalf of the appellant No. 1 that inany case, he has not been assigned the role of pouring the kerosene orlighting the fire also deserves to be rejected for the facts andcircumstances noticed above and particularly when it has come on recordEthat he was with the appellant No. 2 when the victim was threatenedand was put on fire. The conviction of this appellant under Section 302/34 IPC remains unexceptionable. For what has been noticed hereinabove,the suggestion of no likelihood of appellant No. 1 throwing kerosene onthe head of the deceased deserves to be rejected without much dilation.

ConclusionF

28. For what has been discussed hereinabove, we are clearly ofthe view that the appellants have rightly been held guilty of causingdeath of Sher Singh by putting him on fire and have also rightly beenconvicted for the offence under Section 302/34 IPC. No case forinterference is made out.

29. Accordingly, and in view of the above, these appeals fail andare, therefore, dismissed.

Kalpana K. Tripathy

Appeals dismissed.