PURSHOTTAM CHOPRA & Anr. v. STATE (GOVT. OF NCT DELHI)

Judgment

1 S.C.R. 341 341 PURSHOTTAM CHOPRA & ANR. v. 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 the deceased on fire – Information given to Police Control Room (PCR) – Officials of PCR took the victim to the hospital – Statement made by the victim to the doctor (PW 8) who prepared MLC, accusing the appellants (accused persons) for the incident – Statement later made to police Sub-Inspector (PW16) accusing the appellants – Trial Court relying on the Dying Declarations convicted the accused and sentenced them to life imprisonment – High Court affirmed the conviction and sentence – Appeal to Supreme Court – Held: The two statements of the victim have rightly been accepted as Dying Declaration – The Dying Declarations inspire confidence and could be relied and acted upon even without corroboration – Suggestion as to self-immolation as occurring in the statement of PW-6 was of a remote hearsay and hence cannot be accepted – The burden to establish the self-immolation theory was on the accused, in which it failed – The act of pouring kerosene and then putting the person on fire, has all the ingredients of doing an act with the intention of causing death in a gruesome manner – Hence the conviction cannot be altered to one u/s. 304 (Part II) – Conviction u/s. 302/34 and sentence of life imprisonment affirmed. Dying Declaration: Principles relating to recording of Dying Declaration – Discussed. Dismissing the appeals, the Court HELD: 1.1 A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. The Court should be satisfied that the declarant 341 A B C D E F G H 342 SUPREME COURT REPORTS [2020] 1 S.C.R. was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. When the eye- witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration. [Para 21] [384-E-H; 385-A-C] Laxman v. State of Maharashtra (2002) 6 SCC 710 – followed. State of Madhya Pradesh v. Dal Singh (2013) 14 SCC 159 : [2013] 8 SCR 968 ; Bhagwan v. State of Maharashtra (2019) 8 SCC 95 ; State of Punjab v. Gian Kaur and Anr. AIR 1998 SC 2809 ; Uka Ram v. State of Rajasthan JT 2001 (4) SC 472 : [2001] 2 SCR 1052 ; Dalip Singh and Ors. v. State of Punjab AIR 1979 SC 1173 ; Gopal Singh and Anr. v. State of Madhya Pradesh and Anr. AIR 1972 SC 1557; Thurukanni Pompiah and Anr. v. State of Mysore AIR 1965 SC 939 – relied on. A B C D E F G H PURSHOTTAM CHOPRA v. STATE (GOVT. OF NCT DELHI) 343 Paparambaka Rosamma and Ors. v. State of Andhra Pradesh 1999 CriLJ 4321 ; Koli Chunilal Savji and Anr. v. State of Gujarat 1999 CriLJ 4582 ; Vijay Pal v. State (Government of NCT of Delhi) (2015) 4 SCC 749 : [2015] 3 SCR 394 ; Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 ; Kalabai v. State of Madhya Pradesh 2019 SCC ONLINE SC 621 – referred to.

1.2 In the MLC report (Ex. PW-8/A), PW-8 specifically mentioned the particulars and information as given out by the victim himself. PW-8 had been categorical in her assertion that the patient had himself informed her about the alleged history behind his sustaining burn injuries. There is absolutely nothing on record to disbelieve or even doubt the statement of PW-8. On the contrary, such recording of the expressions verbatim by the doctor lends credence to her testimony and the document prepared by her. With this testimony of PW-8, it is established beyond doubt that in his first version in the hospital, the victim asserted that the accused persons poured kerosene oil on him and set him on fire. It is also established that accused (appellant No. 2) was identified by the victim as ‘telwala’ and it has not been doubted that in the slang expressions, the reference had been to the one dealing in some kind of oil business. These are the first traces with names and slight particulars of the assailants. In the sequence of circumstances, the expressions have rightly been fastened on the appellants. [Para 23.1] [386-B-E]

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

1.4 The statement (Ex.PW-16/B) said to have been made by the victim to PW-16 [police offifical) as recorded in hospital in A B C D E F G H 344 SUPREME COURT REPORTS [2020] 1 S.C.R. Hindi language, has in fact been the pivot of the prosecution case. This statement as also the testimony of PW-16 has undergone thorough 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 contents of Ex. PW-16/B,it is found that there is no reason to take any view different. The presence of PW-16 in that hospital at the relevant point of time has not been questioned and it is clearly established on record that before recording the statement of the victim, he moved the application Ex. PW-16/A whereupon PW- 17 [doctor] declared the patient fit for making statement. Thereafter, PW-16 proceeded to record the statement of victim and it has not been shown on record if anyone related with deceased was present at the time of recording of his statement by PW-16. Any possibility of tutoring or prompting is totally ruled out. In the statement, the victim even stated the registration number of the vehicle he was employed and gave out the names and addresses of the appellants while stating their respective roles in the incident in question. At the time of making the said statement, the victim was suffering from 100% deep burn injuries and was in a critical condition. In the given state, elaboration on the motive etc., was least expected from him. PW-16 appears to have recorded whatever was given out by the victim; and there appears nothing of any manipulation by him. [Para 24] [387-C-F]

1.6 In the given set of circumstances, there is no infirmity that the Trial Court and the High Court accepted that the victim was in a fit state of mind to give the statement. It has also not been established on record that the statements of the victim were an outcome of tutoring or figment of imagination. In other words, the statements appear to be voluntary and were given in a fit state of mind. In the given set of circumstances, the statements so made by the victim could be acted upon as dying declarations. [Para 25] [388-B-C]

1.7 The expectations in the Delhi High Court Rules that the dying declaration be recorded by a Judicial Magistrate; the fitness of the declarant be examined; the statement be in the A B C D E F G H PURSHOTTAM CHOPRA v. STATE (GOVT. OF NCT DELHI) 345 form of simple narrative; signature or thumb impression of the declarant be obtained etc. are all, obviously, intended to ensure that the dying declaration is recorded in the manner that its credence does not remain questionable. However, a particular statement, when being offered as dying declaration and satisfies all the requirements of judicial scrutiny, cannot be discarded merely because it has not been recorded by a Magistrate or that the police officer did not obtain attestation by any person present at the time of making of the statement. Even in this regard, the witness PW-19 has pointed out that when asked to attest the statement of the victim as recorded by PW 16 the doctor pointed out that the facts had already been mentioned in the MLC and there was no need to attest the statement. Taking an overall view of the matter, there is no reason that the statement Ex. PW-16/B be discarded only for want of its recording by a Magistrate or for want of attestation. [Para 25.1] [388-E-H; 389-A]

1.8 The extent of burn injuries – going beyond 92% and even to 100% - would not, by itself, lead to a conclusion that victim of such burn injuries may not be in a position to make the statement. Irrespective of the extent and gravity of burn injuries, when the doctor had certified him to be in fit state of mind to make the statement; and the person recording the statement was 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 theory regarding acceptability of statement made by a person who is at the point of death has its fundamentals in the recognition that at the terminal point of life, every motive to falsehood is removed or silenced. To a fire victim like that of present case, the gravity of injuries is an obvious indicator towards the diminishing hope of life in the victim; and on the accepted principles, acceleration of diminishing of hope of life could only obliterate the likelihood of falsehood or improper motive. Of course, it may not lead to the principle that gravity of injury would itself lead to trustworthiness of the dying declaration. There could still be some inherent defect for which a statement, even if recorded as dying declaration, cannot be relied upon without corroboration. A B C D E F G H 346 SUPREME COURT REPORTS [2020] 1 S.C.R. Therefore, merely for 100% burn injuries, it cannot be said that the victim was incapable to make a statement which could be acted upon as dying declaration. [Para 25.2] [389-C-G]