BHAJJU @ KARAN SINGH v. STATE OF M.P

kerosene oil on his wife when she was cleaning the kitchen, and set her ablaze with the help of a match stick. The appellant's wife was admitted in the hospital with 60 % burn injuries where she subsequently died. Her dying declaration was recorded by the Executive Magistrate- C cum-Tehsildar (PWS). The trial court disbelieved the defence plea of the appellant-accused that his wife had accidentally caught fire and got burnt while she was preparing food, and convicted him under Section 302 IPC and awarded him rigorous imprisonment for life. The High Court affirmed the conviction and sentence. D In the instant appeal, the primary contention raised on behalf of the accused was that the dying declaration, Ex. P4 being the sole piece of evidence, could not be relied upon; that there was no evidence corroborating E Ex.P4 and as such, the concurrent judgments of conviction were unsustainable. Dismissing the appeal, the Court HELD: 1. It is a matter of common prudence that a F person who had been burnt and was having 60 per cent burn injuries would not be able to go to the hospital on her own and somebody must have taken her to the hospital. According to the prosecution, PW3 and PW2, had reached the spot and had taken the deceased to the G hospital. Thus, they were the first persons whom the deceased met and as per the case of the prosecution, she had told them that the appellant had poured kerosene on her and set her ablaze. At the hospital, she was examined by Dr. PW9, who in his statement had H 40 SUPREME COURT REPORTS [2012] 5 S.C.R. A recorded that he had examined the deceased and she had as many as 10 injuries on her body and that some wounds on her body were bleeding. According to the said doctor, these injuries could have been caused by a Kada or some sharp object. The burn injuries were found to be B 60 per cent. The person was burnt with kerosene oil. Lower parts of her body were burnt. Her left hand was burnt, right hand and arm were also burnt. He further stated that the statement of the deceased was recorded by the Tehsildar, on which she had put her thumb c impression and that the dying declaration also had been written by the doctor declaring that she was in full senses to make the statement. In his cross-examination, this witness clearly stated that the blouse that deceased was wearing was smelling of kerosene oil. Thus, the D doctor is a witness to the dying declaration as well as to the condition and cause of death of the deceased. [Para 4) [53-D-H; 54-A-B]

#2. PW5 is the Tehsildar who recorded the dying declaration of the deceased. When he appeared as a E witness, he admitted to having recorded the dying declaration of the deceased, which bore his signatures at A to A of Exhibit P4 and recording was in his hand writing of what was stated by deceased and that he added or subtracted nothing from what she had stated. F Nothing material could be brought out during the lengthy cross-examination of this witness. Thus, the dying declaration had been recorded by the competent officer of the executive, duly attested by the doctor and the cross-examination of both these witnesses did not bring G out any legal or substantial infirmity in the dying declaration of the deceased, which could render it inadmissible or unreliable. [Para 5) (54-B-D]

#3. The post mortem of the body of the deceased was H performed by Dr. PW10, and his report is Exhibit P15 BHAJJU @ KARAN SINGH v. STATE OF M.P. 41 which confirms the burn injuries and the death being due A to these injuries. There is evidence which clearly shows that she tried to fight before she succumbed to the burn assault by the appellant/accused. In that process, her bangles were broken which were recovered vide Exhibit PS from the site and she also suffered injuries which B were bleeding when she was examined by PW9. Other recoveries were also made from the site, which evidences that the occurrence took place in the manner as stated by the deceased. It is a common behaviour that if a person is pouring kerosene on herself then the c maximum kerosene will be poured on the head, face and upper parts of the body and lesser amount will reach the lower parts of the body and clothes. Contrary to this, the lower half of the body of the deceased had received more burn injuries than her upper part. [Para 6] [54-F-H; 55-A] 0 4. The incident in question is stated to have occurred on 12th September, 1995. Exhibit 01 is the affidavit stated to have been sworn by the deceased on 30th September, 1995 while she died on 17th October, 1995. In this affidavit, which is the backbone of the defence, it was E stated that at the time of swearing-in of the affidavit in the Medical College, the deceased was more or less healthy in all respects. If one has to even remotely believe that Exhibit 01 could be executed by her, then on the photograph annexed to it, not even a single burn injury F on her face and· upper part of the body is visible. If this photograph is of a date prior to the incident then there was no occasion for the appellant/accused or the Oath Commissioner attesting the affidavit to affix this photograph on this affidavit. This document, thus, G appears to have been created and is, thus, incapable of being relied upon by the Court. (Paras 2, 3, 6] [51-F; 53- A-B; 55-A-C]

#5. Besides recording of Exhibit P4, two other H 42 SUPREME COURT REPORTS [2012] 5 S.C.R. statements of the deceased were also recorded. Both of them were recorded by the Police Officers on different occasions. Firstly, Exhibit P16 was the statement recorded immediately after the occurrence on 12th September, 1995, on the basis of which FIR, Ext. P-17, was registered and thereafter Exhibit P18, the statement of the deceased under Section 161 of the Cr. P.C. was recorded, that too, on 12th September, 1995. Exhibit P16 and P18 may, by themselves, not carry much evidentiary value but they definitely have the same version as was recorded by PW11, the Tehsildar in Exhibit P4, the dying declaration, which is not only admissible in evidence but is reliable, coherent and in conformity with the requirements of law. [Para 7] [55-0-F]

#6. This is not a case where the dying declaration, Ex.P4, is the only evidence against the appellant/accused or that whatever is stated in it, is not partially or otherwise supported by other evidence given the fact that there is no dispute to the occurrence in question, the statements of the doctor, PW9 and the Investigating Officer, PW10 and the Exhibits including the site plan, post-mortem report etc., which are admissible pieces of substantive evidence, fully corroborate the dying declaration. If the deceased had poured kerosene oil on herself, then in the normal course; a) there could not be bleeding wounds on her body, b) broken bangles could not have been recovered from the site, in question and c) she could not have suffered injuries on her hands and arms. All these factors show struggle before death and this indication is further strengthened by the fact that lower part of her body had suffered greater burn injury, than the upper part. [Para 9] [55-G-H; 56-A-C] 7 .1. The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the A B c D E F G H BHAJJU @ KARAN SINGH v. STATE OF M.P. 43 occurrence of the events, then the dying declaration can A certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule against the admissibility of B hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a 'dying declaration'. The 'dying declaration' essentially means the statement made by a person as to the cause of his death or as to the circumstances of the C transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the D consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak E the truth. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated F by other evidence. [Para 1 OJ [56-D-H; 57-A-B]

7.2. There is a clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law. Under the English law, G credence and relevancy of a dying declaration is only when the person making such a statement is in hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and H 44 SUPREME COURT REPORTS [2012] 5 S.C.R. A that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is B admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in his mouth) [Para 11] [57-B-E] c

7.3. The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated D dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction. [Para 12] [57-E-H; 58-A] E F G H

7.4. Another consideration that may weigh with the Court, of course with reference to the facts of a given case, is whether the dying declaration has been able to bring a confidence thereupon or not, is it trust-worthy or is merely an attempt to cover up the latches of investigation. It must allure the satisfaction of the Court BHAJJU @ KARAN SINGH v. STATE OF M.P. 45 that reliance ought to be placed thereon rather than A distrust. [Para 13] [58-B-C]

7.5. The first attempt of the court has to be, to rely upon the dying declaration, whether corroborated or not, unless it suffers from certain infirmities, is not voluntary 8 and has been produced to overcome the latches in the investigation of the case. There has to be a very serious doubt or infirmity in the dying declaration for the courts to not rely upon the same. Of course, if it falls in that class of cases, the dying declaration cannot form the sole basis C of conviction. However, that is not the case here. [Para 17] [61-E-F] Ravikumar @ Kutti Ravi v. State of Tamil Nadu (2006) 9 SCC 240; Vikas and Others v. State of Maharashtra, (2008) 2 SCC 516 : 2008 (1) SCR 933; Kishan Lal v. State of D Rajasthan (2000) 1 SCC 310 : 1999 (1) Suppl. SCR 517; Laxmi (Smt.) v. Om Prakash & Ors. (2001) 6 SCC 118 : 2001 (3) SCR 777; Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 : 2001 (5) Suppl. SCR 503; Jaishree Anant Khandekar v. State of Maharashtra (2009) 11 SCC 647 : 2009 (4 ) SCR E 992 and Muthu Kutty and Another v. State by Inspector of Police, T.N. (2005) 9 sec 113 : 2004 (6) Suppl. SCR 222 - relied on. Munnu Raja and Another v. The State of Madhya F Pradesh - (1976) 3 SCC 104: 1976 (2) SCR 764 - referred to.

8.1. It was also vehemently argued that the two main witnesses PW2 and PW3 as well as the brother of the deceased PW4, had turned hostile and, therefore, the G case of the prosecution has no legs to stand, much less that they have proved their case beyond any reasonable doubt. This submission is without any merit. Firstly, there is no witness to the dying declaration who has turned hostile. None of the witnesses, i.e. PW2 to PW4, were H 46 SUPREME COURT REPORTS [2012) 5 S.C.R. A witnesses to or were even remotely involved in the recording of the three different dying declarations, i,e. Ex.P4, P16 and ·p18. None of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. The dying declaration can be acted upon without corroboration and can be made the basis B c of conviction. [Para 18] [61-G-H; 62-A-B, C-D] D

8.2. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross- E examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination in-chief as well as the cross-examination of the said F witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot G be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the H person, who calls a witness, to put any question to him BHAJJU@ KARAN SINGH v. STATE OF M.P. 47 which might be put in cross-examination by the adverse A party. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of B the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. [Para 19) [63-A-G] C

8.3. PW2 and PW3 were the persons who had met the deceased first after she was put on fire. They were not the eye-witnesses to the occurrence. It is an admitted case that they were the first persons to meet the deceased after she suffered the burn injuries and had D taken her to the hospital. This was their consistent version when stated before the police and even before the court. Contrary to their statement made to the Investigating Agency, in the Court, they made a statement that the deceased had told them that she had caught fire E by chimney and her burn injuries were accidental. This was totally contrary to their version given to the police where they had stated that she had told them that the appellant had poured kerosene on her and put her on fire. To the extent that their earlier version is consistent with F the story of the prosecution, it can safely be relied upon by the prosecution and court. The later part of their statement, in cross-examination done either by the accused or by the prosecution, would not be of any advantage to the case of the· prosecution. However, the G accused may refer thereto. But the court will always have to take a very cautious decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statements recorded, particularly, under Section 164 of the Cr.P.C. What value should be attached H 48 SUPREME COURT REPORTS (2012] 5 S.C.R. A and how much reliance can be placed on such statement is a matter to be examined by the Courts with reference to the facts of a given case. [Para 20] (64-B-G] 8

8.4. PW4, brother of the deceased, is another witness who has made an attempt to help the accused. He stated that deceased had died and appellant was his brother in-law and she got burnt while cooking food and that deceased had told him that appellant used to keep her nicely. Firstly, it must be noticed that all these witnesses who had turned hostile or attempted to support the C accused are the neighbours or close relations of the deceased and also that of the appellant/accused. Their somersault appears to be founded on the consideration of saving a relation from receiving punishment at the hands of justice. They appear to have lied before this D Court, more out of sympathy for the appellant/accused. The very opening part of the statement of PW4, where he says "Medabai mari ja chuki hai" and "Medabai ko khana pakate samay aag lagi thi" is sufficient indicator of his sympathy and the fact that his sister has already died and that he would not like to lose his brother-in-law and secondly, that it is also not clear from his statement as to who told him that deceased had caught fire while cooking. (Para 21] (64-G-H; 65-A-C] E F

8.5. These are matters of serious consequences and render the statement of all these three witnesses unreliable and undependable. Thus, these statements this Court would refer and rely (examination-in-chief) only to the extent they support the case of the prosecution and G are duly corroborated, not only by other witnesses but even by the dying declaration and the medical evidence. (Para 22] (65-D-E] Kofi Lakhmanbhai Chanabhai v. State of Gujarat (1999) a sec 624; Prithi v. State of Haryana - (201 O) a sec 536 : H 2010 (9) SCR 33; Sidhartha Vashisht@ Manu Sharma v. BHAJJU @ KARAN SINGH v. STATE OF M.P. 49