Jagbir Singh vs State

Absence of medical certificate as to fit mental and physical condition of the person making dying declaration - Effect of Held: The medical certificate would go a long way in inspiring confidence of the court in the declaration - However, such certificate is essentially a rule of caution - The voluntary and truthful nature of declaration can be established otherwise Absence of such certificate is not fatal. Dismissing the appeal, the Court

HELD: 1.1 Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court. If there is nothing suspicious about the declaration, no corroboration may be necessary. No doubt, the court must be satisfied that there is no tutoring or prompting, the court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration. Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth, as can be gleaned from the facts established. [Para 30] [1164-E-H]

1.2 There may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable. [Para 30] [1165-A-C]

1.3 Where in one dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. [Para 30] [1165-D-E]

1.4 When there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the volu ntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered. [Para 31] [1166-B-D]

1.5 The Trial Court has brushed aside the contention that the Dying Declaration was result of conspiracy, as frivolous. The property belonged to PW7-mother-in-law of the appellant. It is inconceivable how the appellant would have any right either during her lifetime or even upon her dying intestate to get the property under the Hindu Succession Act, 1956. Having regard to Sections 15 and 16 of the Hindu Succession Act, 1956, it is clear that the appellant cannot claim any right. [Para 33] [1166H; 1167-A-B]

1.6 It is not in dispute that in the dying declaration dated 27.01.2008, there is no certificate by the Doctor certifying that the patient was conscious or that the patient was mentally or physically fit to give the declaration. Undoubtedly, it is true that the certificate by a Doctor about the patient being conscious and fit to give a dying declaration would go a long way in inspiring confidence of the court. However, a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. Though absence of the certificate by a Doctor is not fatal to act upon a dying declaration, but the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration. [Paras 37 and 38] [1168-E-G; 1169-A-B]

1.7 In the present case, the controversial dying declaration dated 27.01.2008 implicating the appellant, was recorded by a Police Officer. The Police Officer was performing his official functions. There is no acceptable material to show that he was interested in implicating the appellant or that he was showing any undue favour to PW1 or PW7. Even though, it may be true that he may not have put questions to ascertain her condition, the declaration, which is seen made, sufficiently assures of the physical and mental condition of the deceased to make the declaration. The appellant also proceeded on the basis that on 25.01.2008, the deceased was in a condition to make the statement. There is no case for the appellant that after 24.01.2008 and 25.01.2008, the condition of the deceased took a turn for the worse. The death took place only on the sixth day after making the declaration on 27.01.2008. Therefore, the deceased was in a position to make the declaration. [Para 39] [1169-F-H; 1170-A]

1.8 There is no material before the Court to hold that the dying declaration is a creation of imagination of the deceased. Nothing is established by the appellant to show that the facts which have been stated in regard to the physical places and things spoken of by the deceased in regard to the rooms, etc., do not match with the reality on the ground. [Para 40] [1170-C]

1.9 It is not correct that the statements made at the hospital on 24.01.2008 and to the Police Officer on 25.01.2008, are not dying declarations. Under Section 32 of the Evidence Act any statement made by a person as to the cause of his death or to any circumstance of the transaction which resulted in his death would be relevant. Once it is proved that such statement is made by the deceased then it cannot be brushed aside on the basis that it is not elaborate or that it was not recorded in a particular fashion. The principle that the statement is brief, would not detract from it being reliable. Equally, when there are divergent dying declarations, it is not the law that the court must invariably prefer the statement which is incriminatory and must reject the statement which does not implicate the accused. The real point is to ascertain which contains the truth. [Para 41] [1170-E-F]

1.10 The courts below were not in error in disregarding the statement attributed to the deceased in the MLC dated 24.01.2008 and the statement taken on the next day, i.e., on 25.01.2008. The incident, admittedly, took place towards the evening of 24.01.2008. The appellant and the deceased were taken by the Police in the PCR vehicle to the hospital. It is the proximity of the appellant, which apparently stood in the way of the deceased, disclosing the truth of the matter. The appellant and the deceased continued to be in the same hospital on 25.01.2008 also. In this regard, in the dying declaration, relied upon by the prosecution, the deceased has stated that as the appellant had extended threat to her, she could not give a statement on the very same day. Apparently, this means that she has proceeded on the basis that the declaration made on 27.01.2008 is the first dying declaration which she is making. She has, in other words, not treated the statement made on 24.01.2008 at the time when she was admitted, as a declaration. So also, the statement made on 25.01.2008, she was operating under the threat extended by her husband. [Para 57] [1175-H; 1176-A-C]

1.11 The dying declaration dated 27.01.2008 is seen recorded in Hindi. There is no case that the deceased was not familiar with Hindi and it can safely be concluded that the dying declaration was recorded in a language with which the deceased was familiar. [Para 45] [1172-B]

1.12 The dying declaration dated 27.01.2008 is a fairly lengthy narration. It contains details about what happened on the fateful day, in a fairly graphic manner including details regarding the place where it happened, the manner in which it happened, the specific role played by the appellant, even things (presence of the motorcycle), the door being locked, are reflected. Even reference was made to the relationship which the appellant was having with his sister-in-law. [Para 46] [1172-C-D]

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

1.14 In dying declaration dated 27.01.2008, the deceased speaks of one boy, (PW24) a neighbour coming inside by jumping the main gate and breaking the lock placed inside the main gate with the help of hathi (handle) of the handpump. It is difficult to find that the deceased could have given the detail about PW24 doing what he did, only on the basis of any tutoring or prompting by PW1 or PW7. Thus, this portion of the statement stands fortified by the corroborative evidence of PW24. [Para 59] [1176E-H; 1177-A] Laxman v. State of Maharashtra (2002) 6 SCC 710 followed.

Kishan Lal v. State of Rajasthan AIR 1999 SC 3062 : [1999] 1 Suppl. SCR 517 ; Paniben (Smt) v. State of Gujarat (1992) 2 SCC 474 : [1992] 2 SCR 197 ; Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh (1993) 2 SCC 684 : [1993] 2 SCR

666 ; Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC

713 : [2004] 2 SCR 659 ; Sayarabano Alias

Sultanabegum v. State of Maharashtra (2007) 12 SCC

562 : [2007] 2 SCR 354 ; Amol Singh v. State of M.P. (2008) 5 SCC 468 : [2008] 8 SCR 956 ; Heeralal v. State of M.P. (2009) 12 SCC 671 : [2009] 4 SCR 283; Lakhan v. State of M.P. (2010) 8 SCC 514 : [2010] 9 SCR 705 ; Sher Singh v. State of Punjab (2008) 4 SCC

265 : [2010] 9 SCR 705 - referred to.

2.1 There is evidence on record, both in the form of oral testimony and documentary evidence, to suggest that there was kerosene kept in the premises. The can is found, the photograph of the can is taken. It is also sent for forensic examination. There is reference to the smell of kerosene available in evidence. The very first document available, viz., the MLC is dated 24.01.2008. In the same, it is clearly stated that there is smell of kerosene from the body of the deceased. In the second statement recorded by the Investigating Officer on the very next day, i.e., on 25.01.2008, it is stated that the patient was unable to tell the cause of kerosene oil smell from her body. This is in regard to the statement by the appellant which has also come to be recorded. [Paras 47, 48] [1172-E-G]

2.2 So far as further evidence indicating presence of kerosene oil is concerned, there is evidence of PW1 who speaks about being told about pouring of kerosene oil by the appellant over the deceased. PW7-mother-in-law of the appellant states that her daughter told her while in the hospital that kerosene oil was kept behind in a small container meant for storing grains. The appellant poured kerosene oil over her. He also sprinkled some kerosene oil on himself also. She, no doubt, states that she had stated before the Police that she had no ration card, that they never used to purchase kerosene oil or never used to keep kerosene oil and the kerosene oil must have been purchased from outside. She was, no doubt, confronted about such omission in the statement. PW8 conducted the post-mortem. She does not, undoubtedly, note the smell of kerosene. However, the post-mortem was conducted on 03.02.2008, almost ten days after the incident. [Para 48] [1172-G-H; 1173-A-B]

2.3 PW-29 is the Investigating Officer. He deposes that the can of kerosene oil was lying and kerosene was lying spread on all the sides of the can. He has spoken about seizing the burnt matchstick and matchbox. He reiterates that in the report, he has mentioned about the smell of kerosene oil emanating from the clothes seized by him. [Para 49] [1173-C]

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

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

2.6 Overwhelming evidence relating to the presence of kerosene starting with the can, kerosene being found by PW29 on the spot near the can on his inspection on the same day, the presence of kerosene residue on the clothing belonging both to the deceased and the appellant, as found by the Scientific Expert, would clearly establish that kerosene was used in causing the fire. This completely fortifies the prosecution. It equally clearly rules out the case sought to be set up by the appellant that it was a case of accidental fire which was brought about when the appellant was lighting his biri and a leak from the motorbike causing the fire. As deposed by the Scientific Expert, the possibility of kerosene smell would be there only if kerosene content is more in the petrol. Secondly, the leak would not have been of such an extent as to lead to the incident of this nature. [Para 52] [1174-D-F]

2.7 There is overwhelming evidence that the fire was caused by the use of kerosene. In the statement, there is no reference to the appellant being drunk. Everything was normal till the accidental fire erupted upon the motorcycle catching fire. Deceased states that the appellant was trying to extinguish the fire and his clothes also caught fire. The deceased, however, does not state that she went to extinguish the fire and thereby sustained the burn injuries. In other words, the statement on 25.01.2008 does not contain any reason as to how the deceased caught fire. There was no statement that she suffered the extensive (65 per cent) burn injuries when she tried to put out the fire. Secondly, the version involves the motorcycle catching fire. There are photographs of the motorcycle. It is only the part of the seat of the motorcycle which was burnt. In this regard, it is apposite to notice that PW14-Police Photographer has deposed about reaching the spot on 24.01.2008 at 09.00 P.M. and taking the photographs, inter alia, of the motorcycle. Statement of 25.01.2008 does not appear to indicate the cause of the burn injuries suffered by the deceased, for the reasons stated above. This version also is incompatible with the presence of the kerosene can which is proved by the evidence of PW29Investigating Officer, PW-14-photographer and the photograph. The statements made on 24.01.2008 and 25.01.2008 will not explain the cause of smell of kerosene emanating from the body, both of the deceased and from the appellant, as also the clothes smelling of kerosene. PW30 apparently spoke about the clothes smelling. That the appellant was unable to tell the cause of kerosene smell from his body. It is found that kerosene smell was present in the body of the patient. [Para 60] [1177-G-H; 1178-A-D]

2.8 In the statement on 27.01.2008, the deceased had spoken about the appellant coming drunk. He poured kerosene over the deceased. He also poured some kerosene on himself. The cause of fire was by lighting matchstick after pouring the kerosene. The deceased runs and trips over the handpump. The presence of the handpump is corroborated by the evidence of PW24-neighbour. No doubt, the action of the appellant in pulling out the petrol pipe is also referred to by the deceased in the dying declaration dated 27.01.2008. The fire erupting near the motorcycle is, thus, explained in the declaration dated 27.01.2008. It is here that the role of alcohol in the whole incident, which must be borne in mind. [Para 61] [1178-E-F]

2.9 The appellant suffering 40 per cent injuries on his face, neck and both upper limbs, was found compatible with the dying declaration dated 27.01.2008 wherein the deceased has explained that when she tried to flee, the appellant caught her trying to prevent her from running out. In the dying declaration, the deceased has stated that the appellant caught fire when the fire erupted near the motorcycle as a result of the pipe of the petrol tank being taken out by the appellant. The case of the appellant is that the fire occurred when he had lit a biri. He had no case that the pipe of the petrol tank had been taken out thereby causing the fire. But PW29-Investigating Officer, has deposed that the petrol pipe of the motorcycle had been detached from the place where it should be. He has also stated that in the inner room, a can of kerosene oil was lying and the kerosene was lying spread on all the four sides of the can. There is no reason to disbelieve PW29. The version, as projected in the declaration dated 27.01.2008, is clinchingly proved by this circumstance that kerosene was indeed the fuel used which caused the burn injuries and its position in the inner room is compatible with the dying declaration dated 27.01.2008. [Para 63] [1179-B-F]