Purshottam Chopra & Anr. vs State (Govt. of NCT Delhi)

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 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 eyewitnesses 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.

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 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 PW17 [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 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. 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] Vijay Pal v. State (Government of NCT of Delhi) (2015)

4 SCC 749 : [2015] 3 SCR 394 ; Bhagwan v. State of Maharashtra (2019) 8 SCC 95 ; State of Punjab v. Gian Kaur and Anr. AIR 1998 SC 2809 ; Dalip Singh and Ors. v. State of Punjab AIR 1979 SC 1173 – relied on.

1.9 As regards the suggestions that the alleged statements Ex. PW-8/A and PW-16/B are manipulated and manufactured, there had not been shown any reason for which PW-8 and PW-16 would manufacture any such document. The doubts sought to be suggested about availability of thumb impression of the victim on the statement Ex. PW-16/B also deserve to be rejected. In the case of burns, the skin of a small part of the body like thumb may remain intact; and it is essentially a question of fact as to whether skin of thumb had also been burnt completely. Even when the victim was carrying 100% deep burns, as per the post-mortem report, peeling of skin was noticed on dorsum 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 the High Court in accepting the thumb impression on Ex. PW-16/B do not appear 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 SC 2809 – relied on.

1.10 In such fire injury case, no adverse conclusion can be drawn against the statement made by the victim about his having consumed some liquor and for this reason, the reliability of all other facts stated in his statement cannot be doubted. If he had consumed liquor, there was less probability of his talking coherently. It is difficult to say that victim was unable to make the 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 no reason to discard the same. In the given set of facts and circumstances, where these two dying declarations inspire confidence, They could be relied and acted upon even without corroboration. [Para 25.5] [391-A-B]

2.1 The version as attempted to be given by PW6 in the cross-examination that the victim had at the first point of time made the statement about self-immolation for the reason of himself having been dropped from tempo has rightly been rejected by the Trial Court and by the High Court. This witness did not state anything in his examination-in-chief about the victim having told anyone about self-immolation and therefore, there was no occasion for the prosecution to declare him hostile and to confront him with his previous statement. Moreover, though the story about the victim having asserted that he had set himself on fire came to be introduced by this witness in his cross-examination on behalf of the appellant No. 1 but the value and worth of such suggestion was effectively demolished by this witness himself in his further statement in cross-examination on behalf of the appellant No. 2 where he categorically stated that “victim has not told the people present in my presence that he had put himself on fire”. Obviously, the suggestion as occurring in the statement of PW-6 about selfimmolation by the victim had been of a remote hearsay and is not of 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 persons named by PW-6 falls to the ground because such names and their roles came to be introduced only in the statement made by PW-6 in his cross-examination. The theory of self-immolation as also the names of the other persons, who allegedly reached the spot, having come up by way of cross-examination of PW-6, the burden was on the accused persons to establish such theory by cogent evidence. No such attempt was made on behalf of the accusedappellants to prove any such fact or to examine any such named person. [Para 26.2] [392-B-C]

3. The plea that the prosecution has not been able to establish the identity of assailants in this crime, has no substance when the particulars as occurring in the two statements Ex. PW8/A and Ex. PW-16/B are examined and analysed, wherein occupation of at least one of the assailant and then the names and addresses of both the appellants came to be mentioned. For this very reason, the other contention that the incident took place in a crowded market place and the appellants were not seen by anyone also pales into insignificance. [Para 27.1] [392-G-H; 393-A]

4. The establishment of the motive for crime is also of no effect because, in the first place, in a death case, the motive remains essentially known to the deceased and to the offender; and a prosecution case cannot fail only for want of proof of motive. This apart, in the present case, the indications of an existing dispute of the deceased with appellant No. 1 do appear in the testimony of the brother of the deceased, PW-1. It is also noticed that the deceased and the accused persons were the residents of the same locality. [Para 27.2] [393-B]

5. The High Court has rightly relied upon the information reflected in Parts II, III and IV of PCR form, which clearly show that not only the initial information was recorded about the victim being on fire but further information were recorded from time to time during the course of transporting and admitting the victim to hospital, where not only his address came to be mentioned but the names of the assailants also surfaced. The said document having been produced before the Court and its copy having been taken on record, with PW-7 having proved the same, it would not be justified to discard it. [Para 27.3] [393-D-E]

6. As regards the statement of PW-18 ASI who asserted that the victim, while being taken to hospital in PCR Van and even in hospital, did not speak to him and was only crying in pain, Some of the remarks appear justified. However, this aspect does not require further dilation for the other facts established on record, including the fact that the victim was conscious and oriented at the time of admission to the hospital and made the statements in a fit state of mind. [Para 27.4] [393-F; 394-A-B]

7. The act of pouring kerosene over a person and then putting him on fire by lighting a match has all the ingredients of doing an act with the intention of causing death of a person in a gruesome manner. The conviction of the appellants for the offence of murder appears justified and there is no reason to convert the same 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 was with the appellant No. 2 when the victim was threatened and was put on fire, the conviction of this appellant under Section 302/34 IPC remains unexceptionable. The suggestion of no likelihood of appellant No. 1 throwing kerosene on the head of the deceased deserves to be rejected without much dilation. [Para 27.6] [394E-F]