the high court of delhi at new delhi + crl.a 189/1993 … rani vs. state.pdfcrl a. 189/93 and 195/93...

CRL A. 189/93 and 195/93 of 44

THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 10.05.2009

+ CRL.A 189/1993

USHA RANI ... Appellant

- versus –

STATE (DELHI ADMN.) ... Respondent

WITH

CRL. A 195/1993

NARESH CHAND … Petitioner

- versus –

STATE (DELHI ADMN.) ... Respondent

Advocates who appeared in this case: For the Petitioner : Mr K.B. Andley Sr Advocate with Mr. P.K. Bhardwaj, Mr M.Shamikh

For the Respondent : Mr M.N. Dudeja.

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MR JUSTICE V.B. GUPTA

1. Whether Reporters of local papers may be allowed to

see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED, J

1. These appeals arise from the judgment dated 9.11.1993 delivered by

the Additional Sessions Judge, Karkardooma, Shahdara, Delhi in Sessions

case No. 203/1985 concerning FIR No. 161/1985 under Section 302/34 IPC

registered at Police Station Seemapuri, Delhi. By the impugned judgment,

CRL A. 189/93 and 195/93 of 44

the appellants Naresh Chand and Usha Rani, who are husband and wife,

have been convicted for the offence punishable under Section 302 read with

Section 34 IPC for committing the murder of Naresh Chand‟s sister-in-law

Smt. Hemlata by pouring kerosene oil on her and setting her ablaze. The

learned Additional Sessions Judge by his order on the point of sentence

passed on 10.11.1993 sentenced both the appellants to undergo

imprisonment for life and to pay a fine of Rs 500/- each and in default of

payment of fine to further undergo rigorous imprisonment for three months

each.

2. As per the prosecution, on 27.4.1985 at about 10.40 a.m. a telephonic

message was received from an unknown person at police post Nand Nagri

that the clothes of a woman have caught fire in House No. A-5, Ashok

Nagar, Delhi. The said information was recorded at the said police post vide

DD Entry No. 12. ASI Rampat along with Head Constable Janki Prasad

were deputed to investigate. They reached Swami Daya Nand Hospital and

collected the MLC of the injured Hemlata wife of Mahesh Chand. At that

point of time, in the opinion of the doctor, the injured Hemlata was unfit for

making a statement and she was removed to Lok Nayak Jaya Prakash

Narayan Hospital (LNJPN Hospital). ASI Rampat, after leaving Constable

Tej Ram at the spot, went to LNJPN Hospital and collected the MLC of Smt.

Hemlata. Apparently, at that time the doctor gave his opinion that the

patient was fit for statement and the same ought to be recorded. ASI Rampat

along with Head Constable Janki Prasad went to the Shahdara Courts and

CRL A. 189/93 and 195/93 of 44

requested PW16 Mr V.P. Rao, the then Sub Divisional Magistrate, to

accompany them to the hospital and to record the statement of the injured

Smt. Hemlata. The said Sub Divisional Magistrate, after obtaining the

opinion of Dr Mohd. Ibrarullah that the patient was fit for making a

statement, recorded the statement of Smt. Hemlata. The said statement is

Ext. PW16/A. The statement is in Hindi. The English translation of the

same reads as under:-

“ I, V.P. Rao S.D.M. (Shahdara) arrived in L.N.J.PN

Hospital at 4.30 P.M. to record the statement of Smt. Hem Lata

w/o Shri Mahesh Chand r/o A-5, Ashok Nagar, Delhi aged

around 30 years. She has been identified and declared fit for

statement by Dr Mohd. Ibrarullah of J.P.N. Hospital.

I have disclosed my identity purpose of visit and

significance of her statement. Her statement in her own words

is as under/follows:-

Q. What is your name?

Ans. My name is Hemlata.

Q. What is the name of your husband and where do you

live?

Ans. The name of my husband is Mahesh Chand. We reside at

A-5, Ashok Nagar, Delhi.

Q. How did you catch fire?

Ans. My brother-in-law Naresh Chand and sister-in-law Usha

have set me on fire (Devar and Devrani). Today at about 8.30

A.M. when my brother-in-law (Devar), on saying of my

husband, brought the milk for us, my sister-in-law Usha

(Devrani) abused me. I was perturbed with the behavior of my

mother-in-law and father-in-law. That is why my husband

started living separately from them. My mother-in-law and

sister-in-law blamed me for causing the death of my brother-in-

law. As 1-1/2 – 2 months back, my brother-in-law had died,

therefore they blamed me that I have given something to him”.

She further disclosed, “my brother-in-law had died on 25th

February, 1985. Prior to this, the one day old child of my

sister-in-law had passed away. They held me responsible for

CRL A. 189/93 and 195/93 of 44

his death also. Usually they have been leveling such kind of

allegations against me.

Today in the morning, after about half an hour of leaving

of my husband, my brother-in-law and sister-in-law have set me

ablaze.

Q. What was the time?

Ans. I do not remember the exact time.

Q. How you caught fire?

Ans. My brother-in-law threatened me that they would kill me.

But I did not utter a single word. When I was brooming the

house, my brother in law poured Kerosene oil from the bottle

containing a little less than half oil and set me ablaze.

Q. Whether the door of the house was open?

Ans. Yes, the door was open. But I did not rush outside the

house. I cried. I do not know as to who saved me and I also do

not know who took me to the Hospital `A‟.

On asking her again, she stated as Under:-

“I am narrating the entire incident from the beginning.

They had a dispute with me from the very beginning. My

brother-in-law had died in an accident but my in-laws (mother-

in-law, brother-in-law and sister-in-law) abused me. My sister-

in-law was the person who used to harass me very much. They

had alleged that I and my parents had killed him by way of

giving him poison mixed in Puras. They got arranged

conjuration. But no name from us was revealed. Prior to it, the

baby of my sister in law had passed away the exact day of the

delivery. But they abused me and held me responsible for the

death. They also hurled abuses at me in the days of Navratras.

Q. When did your brother-in-law die?

Ans. I do not remember. Perhaps on 22nd

on 25th February,

1985.

SHE STATED FURTHER:-

“Today in the morning when the milk of my 3 months

old child had finished who takes the milk of the tin I asked my

husband for the same to which he replied that either he, after

going, would send it through his brother or he would himself

bring while coming back. My brother-in-law brought the milk

tin. Thereupon, my sister-in-law hurled filthy abuses and called

me “RANDI BHATIJA KHANI, DEWAR KHANI.

Thereafter, she threatened that they will not leave me alive.

CRL A. 189/93 and 195/93 of 44

When I was working, my brother-in-law and sister-in-law

poured Kerosene oil on me and set me on fire.

I have heard the statement and the same is correct.

Sd/- Hem Lata

(In Hindi)”

3. On the basis of this statement, a case under Section 307/34 IPC was

got registered. ASI Rampat conducted the investigation of the case. The

scene of occurrence was photographed and inspected by the crime team.

The bottle from which the kerosene oil was allegedly poured as also a match

box and burnt pieces of clothes were seized from the spot. Smt Hemlata

died in hospital on 29.4.1985 and thereupon the case was converted to one

under Section 302/34 IPC. S.I. Ram Kunwar took up the investigation. He

completed the inquest proceedings, got the post mortem examination

conducted on the dead body of Smt Hemlata and arrested the accused. The

site plan to scale was also got prepared by him. After completion of

investigation, the challan was filed against the appellants under Section

302/34 IPC. The Metropolitan Magistrate committed the case to the Court

of Sessions which framed the charge under Section 302/34 IPC against the

accused on 7.12.1985, to which they pleaded not guilty and claimed trial.

The prosecution examined 22 witnesses in support of its case. The defence

also examined as many as 7 witnesses. On conclusion of the trial the

appellants were found guilty as charged by the learned Additional Sessions

Judge by virtue of the impugned judgment and sentenced accordingly as

already indicated above.

CRL A. 189/93 and 195/93 of 44

4. Apart from the above dying declaration Ext. PW16/A, the deceased

Hemlata is also said to have made two oral declarations to PW2 Taras Chand

and PW3 Bimla Devi. It is an admitted position that the entire case revolves

around the dying declaration Ext. PW16/A recorded by PW16 Mr V.P. Rao,

the then Sub Divisional Magistrate, and also on the oral said dying

declarations. The Trial Court, after examining the said dying declarations,

came to the conclusion that they were truthful and correct and, therefore,

convicted the appellants.

5. Mr Andley, the learned senior counsel appearing on behalf of the

appellants challenged the impugned judgment on essentially two points. The

first challenge was with regard to the dying declarations themselves. The

second was a challenge based on the merits of the case.

6. Insofar as the dying declarations are concerned, Mr Andley submitted

that the alleged dying declaration Ext. PW16/A cannot be made the sole

basis of conviction without requiring corroboration. He referred to Chapter

13-A of the Delhi High Court Rules which deals with dying declarations.

The relevant portions of the said Chapter are set out hereinbelow:-

“1. Statements made by a person as to the cause of his death or

as any of the circumstances of the transaction which resulted in

his death are themselves relevant facts and admissible in

evidence under Section 32(1) of the Indiana Evidence Act in

CRL A. 189/93 and 195/93 of 44

cases in which the cause of the person‟s death comes into

question. A statement commonly known as a “dying declaration”

constitutes such an important evidence in criminals that their

Lordships of the Supreme Court ruled in Khushal v. State of

Bombay (AIR 1958 SC 22), which was followed in Singh v. The

State (AIR 2962 SC 439) that it could form the sole basis of

conviction. It is thus necessary that a Court trying the case

should have before it a correct and faithful record of the

statement made by the dead person. As far as possible the dying

declaration should be recorded in the manner hereinafter

prescribed, and in the event of death of the person making it,

should be submitted at the enquiry or trial.

2. Dying declarations to be recorded by Judicial

Magistrates – Where a person whose evidence is essential to the

prosecution of a criminal charge or to the proper investigation of

an alleged crime, is in danger of dying before the enquiry

proceedings or the trial of the case commences his statement, if

possible, be got recorded by a Judicial Magistrate. When the

police officer concerned with the investigation of the case or the

medical officer attending upon such person apprehends that such

person is in the danger of dying before the case is put in Court, he

may apply to the Chief Judicial Magistrate, and, in his absence to

the seniormost Judicial Magistrate present at the headquarters, for

recording the dying declaration.

(ii) On receiving such application, the Judicial Magistrate

shall at once either himself proceed, or depute some other

stipendiary Judicial Magistrate to record the dying declaration.

3. Fitness of the declarant to make the statement should

be got examined – Before proceeding to record the dying

declaration, the Judicial Magistrate shall satisfy himself that the

declarant is in a fit condition to make a statement, and if the

medical officer is present, or his attendance can be secured

without loss of time, his certificate as to the fitness of the

declarant to make a statement should be obtained. If, however,

the circumstances do not permit waiting or the attendance of the

CRL A. 189/93 and 195/93 of 44

Medical Officer, the Judicial Magistrate may in such cases

proceed forthwith to record the dying declaration but he should

note down why he considered impracticable or inadvisable to

wait for a doctor‟s attendance.

4. The statement of the declarant should be in the form of

a simple narrative – The statement, whether made on oath or

otherwise, shall be taken down by the Judicial Magistrate in the

form of a simple narrative. This, however, will not prevent the

Judicial Magistrate from clearing up any ambiguity, or asking the

declarant to disclose the cause of his apprehended death or the

circumstances of the transaction in which he sustained the

injuries. If any occasion arises for putting questions to the dying

man, the Judicial Magistrate should record the question also the

answers which he receives. The actual words of the declarant

should be taken down and not merely their substance. As far as

possible the statement should be recorded in the language of the

declarant or the Court language.

5. Signatures or thumb impression of the declarant to be

obtained to token of the correctness of the statement – At the

conclusion of the statement, the Judicial Magistrate shall read out

the same to be declarant and obtain his signature or thumb-

impression in token of its correctness unless it is not possible to

do so. The dying declaration shall be placed in a sealed cover

and transmitted to the Judicial Magistrate having jurisdiction to

deal with the case to which it relates.

6. xxx xxx xxx

7 xxx xxx xxx

8. Fitness of the Declarant to make a statement to be

certified by the Judicial Magistrate or other officer

concerned – The Judicial Magistrate or other officer recording a

dying declaration shall at the conclusion of the dying declaration

certify that the declarant was fit to make a statement and it

contained a correct and faithful record of the statement made by

him as well as of the questions, if any, that were put to him by the

CRL A. 189/93 and 195/93 of 44

justice recording the statement. If the accused or his counsel

happens to be present at the time the dying declaration is

recorded, his presence and objection, if any, raised by him shall

be noted by the Judicial Magistrate or the officer recording the

dying declaration, but the accused or his counsel shall not be

entitled to cross-examine the declarant.

9. Dying Declaration should be a free and spontaneous –

It is the duty of the person recording a dying declaration to take

every possible question to ensure the making of a free and

spontaneous statement by the declarant without any prompting,

suggestion or aid from any other justice.

10 xxx xxx xxx”

7. Referring to the aforesaid rules, Mr Andlay submitted that Ext.

PW16/A suffers from many infirmities. He submitted that first of all, it is

recorded by a Sub-Divisional Magistrate and not by a Judicial Magistrate.

The Investigating Officer did not make any application to the Chief Judicial

Magistrate or to the senior most Judicial Magistrate for the recording of

Hemlata‟s statement. Moreover, with regard to the fitness of the declarant,

the person recording the declaration is required to satisfy himself that the

declarant is in a fit condition. According to Mr Andley, no such attempt was

made by PW16 V.P. Rao nor has the doctor (Dr. Mohd Ibrarullah) who gave

the fitness certificate been examined. He also submitted that the statement

Ext. PW16/A is in question and answer form whereas the requirement is it

should be in simple narrative. He submitted that paragraph 5 of the said

Chapter 13-A requires that the dying declaration should be placed in a sealed

CRL A. 189/93 and 195/93 of 44

cover and transmitted to the competent Judicial Magistrate. In the present

case, the dying declaration Ext. PW16/A was handed over to the

Investigating Officer and not placed in a sealed cover or transmitted to the

Judicial Magistrate. The object of the requirement of paragraph 5 of Chapter

13A is to maintain authenticity of the statement. If this is not done, the

credibility and authenticity of the statement becomes suspect.

8. Mr Andley submitted that fitness of the declarant is of vital

importance and the non-examination of Dr Ibrarullah becomes very crucial.

He submitted that this is all the more important inasmuch as PW16 V.P.

Rao, the then SDM did not himself ascertain the fitness of the patient.

Coupled with this is the fact that the MLC at Swamy Daya Nand Hospital

recorded by Dr Rajan Khanna indicates that Smt Hemlata was unfit for

making the statement at 10.10 a.m. Dr Rajan Khanna has not been

examined. Hemlata was again declared unfit to give a statement at 12.30

p.m. by Dr Mahapatra at LNJPN Hospital. At 4.30 p.m. she was declared fit

for giving a statement by Dr Keshav of LNJPN Hospital. But, he too was

not examined. The dying declaration contains a certificate of Dr Mohd.

Ibrarullah given at 4.30 p.m. which also certifies that the patient (Hemlata)

was fit for giving a statement. Dr Mohd. Ibrarullah of LNJPN Hospital was

also not examined. It was, therefore, contended by Mr Andley that the non-

examination of the series of doctors who made endorsements on the MLC

and the dying declaration Ext. PW16/A with regard to fitness/unfitness of

CRL A. 189/93 and 195/93 of 44

Hemlata, casts a serious doubt on the correctness and veracity of the said

dying declaration.

9. Apart from the issue of the dying declaration, Mr Andley submitted

that even on merits, the case against the appellants has not been established.

He submitted that it is an admitted position on the part of the prosecution

that the appellant Naresh went to fetch milk for Hemlata‟s child. This is an

important circumstance inasmuch as, according to him, it would not amount

to natural behavior on the part of the appellant Naresh if it were to help her

by bringing milk for her child, as he did, and at the same time, to harbour

designs of killing her by setting her on fire.

10. Mr Andley also contended that burning by kerosene is itself not

established. The post mortem report Ext. PW7/A clearly indicates:- “no

smell of kerosene evidence anywhere on body.” He also referred to the

report of the Central Forensic Science Laboratory, CBI, Lodi Road, New

Delhi (Ext. P – A). The report indicates that the contents of Ext. I (a slide

bottle containing some liquid) was found to contain kerosene oil. However,

Exts. 3 and 4 which contained burnt pieces of cloth and scalp hair,

respectively, were found not to contain kerosene oil. On the basis of these

facts, Mr Andley submitted that it is also not established as to whether the

burn injuries which Hemlata suffered were due to kerosene oil or some other

inflammatory substance.

CRL A. 189/93 and 195/93 of 44

11. Mr Andley also submitted that the non-examination of Hemlata‟s

husband Mahesh is also of vital importance. According to him, had Mahesh

been examined, he would not have supported the prosecution version.

Furthermore, Mr Andley drew our attention to the statement made by

appellant Usha Rani under Section 313 Cr.P.C. where she stated that she was

innocent and that she was five months into her pregnancy and was present in

her house and did not go to the house of Hemlata. On the basis of this, it

was submitted that the appellant Usha Rani who was herself in the family

way, could not be expected, under natural circumstances, to kill another

person.

12. Mr Andley also submitted that far from trying to kill Hemlata, the

appellant Naresh Chand tried to save her. On account of that he received

burn injuries on his hand. He referred to the testimony of DW6 Dheer

Singh, Record Clerk of Swami Daya Nand Hospital, Delhi wherein it is

stated that as per the record maintained in the said hospital Naresh Chand

was examined by Dr B Nayak on 3.5.1985. The said Dr. Nayak was also

produced as a defence witness (DW7). He stated that he had examined

Naresh on 3.5.1985 with the alleged history of burns on 27.4.1985. On

examination he found a few blisters on the right hand. According to the said

doctor the injuries were about 72 hours old and were not six days old and did

not coincide with 27th April, 1985.

CRL A. 189/93 and 195/93 of 44

13. Mr Dudeja, the earned counsel appearing on behalf of the State

supported the Trial Court decision. He submitted that the dying declaration

Ext. PW16/A was not a tutored declaration. There may have been some

irregularities in recording the dying declaration when examined in the light

of Chapter 13-A of the Delhi High Court Rules, but this would not enable us

to detract from the truthfulness of the declaration/statement made by the

declarant. He submitted that before the statement was recorded Dr Mohd.

Ibrarullah had clearly given his certificate of fitness with regard to the

making of a statement by Smt Hemlata. He further submitted that at three

separate points of the dying declaration Ext. PW16/A, the declarant Hemlata

had clearly stated that both the appellants set her on fire. There may be

minor discrepancies with regard to the threat to kill meted out by the two

appellants. At one point, the threat to kill is stated to be on the part of the

brother-in-law, appellant Naresh, and at another point the threat is stated to

have been meted out by the sister-in-law, appellant Usha Rani. According

to Mr Dudeja, this is a minor discrepancy which would not militate against

the truthfulness and correctness of the dying declaration Ext. PW16/A. He

submitted that the dying declaration Ext. PW16/A is consistent throughout

on the factum of both the appellants pouring kerosene on Hemlata and then

setting her on fire.

CRL A. 189/93 and 195/93 of 44

14. Mr Dudeja submitted that although the dying declaration Ext.

PW16/A contained allegations against Hemlata‟s mother-in-law as well as

the father-in-law; they have not been named as perpetrators of the crime. He

submitted that this factor also indicates the truthfulness of the statement

made by Hemlata.

15. Mr Dudeja also submitted that apart from the recorded dying

declaration Ext. PW16/A, there are also two other oral dying declarations

made by Hemlata to PW2 Taras Chand and PW3 Bimla Devi. PW2 Taras

Chand, who is Hemlata‟s brother, clearly stated that :

“I met my sister Hemlta at LNJPN Hospital. Hemlata told me

that while she was busy in the household work Usha Rani and

Naresh came to her and poured kerosene oil on her and put on

fire. Thereafter, they closed the door and after sometime, opened

the door gave water to Hemlata and sprinkled water to the body

to extinguish the fire.”

PW3 Bimla Devi, who is the mother of Hemlata also stated:-

“Thereupon I went to hospital to meet Hemlata. Hemlata told me

that she was brooming the house while Usha started abusing her.

Thereupon Usha and Naresh came to her and poured kerosene oil

on her and she was put on fire. Hemlata died on 29.4.1985.

Hemlata was conscious when she was talking to me.”

Mr Dudeja also stated that DW3 Mayavati in her cross-examination

confirmed that she was standing at a distance of about 4/5 steps from the bed

of Hemlata when her statement was recorded by the SDM.

16. Mr Dudeja referred to the Supreme Court decision in Laxman v. State

of Maharashtra: AIR 2002 SC 2973, wherein the Supreme Court observed

CRL A. 189/93 and 195/93 of 44

that 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. Based on this decision, Mr Dudeja submitted that the

non-examination of Dr Mohd. Ibrarullah would not be fatal to the

prosecution case. In the said decision, that is in Laxman (supra) the

Supreme Court also observed that the juristic theory regarding acceptability

of a dying declaration is that such declaration is made in extremity, when the

party is at the point of death and when every hope of this world is gone,

when every motive to falsehood is silenced, and the dying person is induced

by the most powerful consideration to speak only the truth. However, the

Supreme Court also observed that notwithstanding this circumstance, great

caution must be exercised in considering the weight to be given to this

species of evidence on account of the existence of many circumstances

which may affect its truth. The Supreme Court observed that the situation in

which a man is on his death bed is so solemn and serene and this is the

reason in law to accept the veracity of his statement. And, it is for this

reason that the requirements of oath and cross-examination are dispensed

with. At the same time, since the accused has no power of cross-examining

the declarant, courts insist that the dying declaration should be of such a

nature as to inspire full confidence of the court in its truthfulness and

correctness. The Supreme Court observed that there is no requirement of

law that a dying declaration must necessarily be made to a Magistrate and

when such statement is recorded by a magistrate there is no specified

statutory form for such recording. The Supreme Court further observed that

CRL A. 189/93 and 195/93 of 44

the evidential value or weight that has to be attached to such statement

necessarily depends on the facts and circumstances of each case and that

what is essentially required is that the person who records a dying

declaration must be satisfied that the deceased was in a fit state of mind and,

where it is proved by the testimony of the Magistrate that the declarant was

fit to make the statement even without examination by the doctor the

declaration can be acted upon provided the Court ultimately holds the same

to be voluntary and truthful.

17. Referring to the aforesaid observations of the Supreme Court in

Laxman (supra), Mr Dudeja submitted that the dying declaration Ext.

PW16/A was recorded by the Sub Divisional Magistrate (PW16) after the

doctor had declared Hemlata fit for making a statement. The non-

examination of the said doctor would not be fatal as long as it is established

as a fact that Ext. PW16/A was the statement made by Hemlata and had been

correctly recorded by the SDM (PW16).

18. Mr Dudeja referred to the Supreme Court decision in Muthu Kutty &

Anr. V. State by Inspector of Police, Tamil Nadu: 2004 (4) Crime 328 (SC)

in support of his proposition that a dying declaration can be made the sole

basis of conviction without the requirement of corroboration by other

evidence provided the dying declaration is truthful; acceptable and free

from any effort to induce the declarant to make a false statement. He

CRL A. 189/93 and 195/93 of 44

submitted that in the present case there is no evidence to suggest that there

was any tutoring or prompting by anybody while Hemlata made her

statement. Therefore, according to Mr Dudeja, the dying declaration Ext.

PW16/A coupled with the oral dying declarations made to PW2 Taras Chand

and PW3 Bimla Devi, all of which were consistent with each other, could be

made the sole basis for conviction of the appellants without requiring any

corroboration from any other quarter.

19. Mr Dudeja also referred to Balbir Singh & Another v. State of

Punjab: 2006 (4) Crimes 91 (SC) to submit that a dying declaration should

be made in any prescribed manner or in the form of questions and answers.

He submitted that although the dying declaration Ext. PW16/A may not have

been entirely in accordance with the guidelines given in Chapter 13-A of the

Delhi High Court Rules, it did not mean that the dying declaration Ext.

PW16/A ought to be discarded for this reason. All that is necessary is that

the dying declaration must be voluntary, it should not be tutored and it must

be correctly recorded. Once, it is so established, the factum that it was not

recorded as per the suggested guidelines, would be immaterial.

20. In rejoinder Mr Andley, the learned senior counsel appearing for the

appellants, submitted that a dying declaration can form the sole basis of

conviction. However, it can only do so provided it is truthful and correct.

According to him, the mental fitness of the declarant is a material factor. In

CRL A. 189/93 and 195/93 of 44

this case, no doctor had been examined. The SDM has also not recorded

that he himself was satisfied that the declarant Hemlata was fit for making

the statement. Consequently, the said dying declaration Ext. PW16/A

cannot be made the basis of the conviction of the appellants.

21. Let us now examine the law with regard to dying declarations. In

Khushal Rao v State of Bombay: AIR 1958 SC 22, the Supreme Court

observed that Section 32 (1) of the Evidence Act, 1872, had been made by

the Legislature, as a matter of sheer necessity by way of an exception to the

general rule that hearsay is no evidence and that evidence which has not

been tested by cross-examination, is not admissible. The purpose of cross-

examination is to test the veracity of the statements made by the witness.

The Supreme Court observed that in the view of the Legislature, in the case

of a dying declaration, the test is supplied by the solemn occasion when it

was made, normally, at a time when the person making the statement is in

danger of losing his life. As per the observations in the said decision, at such

a serious and solemn moment, the person making the statement is not

expected to tell lies, and secondly, the test of cross-examination would not

be available. The Supreme Court observed that the statement made by a

dying person as to the cause of death, has been accorded special sanctity by

the Legislature which should, on first principles, be respected unless there

are clear circumstances brought out in the evidence to show that the dying

declaration was not reliable. In the same decision, the Supreme Court has

also observed that there is no absolute rule, or even a rule of prudence which

has ripened into a rule of law, that a dying declaration, unless corroborated by

CRL A. 189/93 and 195/93 of 44

other independent evidence, is not fit to be acted upon, and made the base of

a conviction. This statement of law has been consistently followed by the

Supreme Court in several decisions spanning over all these years.

22. In Harbans Singh v. State of Punjab: AIR 1962 SC 439, the Supreme

Court took the view that the law does not make any distinction between a

dying declaration in which one person is named and a dying declaration in

which several persons are named as culprits. A dying declaration

implicating one person may well be false while a dying declaration

implicating several persons may be true. When a number of persons appear

to have been mentioned as culprits in a dying declaration, the Court has to

scrutinize the evidence in respect of each. The Supreme Court cautioned

that it is wrong to think that a dying declaration becomes less credible if a

number of persons are made as culprits.

23. The principles governing dying declarations have been succinctly

summarized by the Supreme Court in Paniben (Smt) v. State of Gujarat:

(1992) 2 SCC 474 as under:-

“16.This is a case where the basis of conviction of the accused

is the three dying declarations. The principle on which dying

declarations are admitted in evidence is indicated in legal

maxim:

“nemo moriturus proesumitur mentri – a man will not meet his

Maker with a lie in his mouth.”

17. The situation in which a man on death bed is so solemn and

serene when he is dying – the grave position in which he is

placed, is the reason in law to accept the veracity of his

statement. It is for this reason the requirements of oath and

CRL A. 189/93 and 195/93 of 44

cross-examination are dispensed with. Besides, should the

dying declaration be excluded it will result in miscarriage of

justice because the victim being generally the only eye witness

in a serious crime, the exclusion of the statement would leave

the Court without a scrap of evidence.

18. Though a dying declaration is entitled to great weight, it is

worthwhile to note that the accused has no power of cross-

examination. Such a power is essential for eliciting the truth as

an obligation of oath could be. This is the reason the Court also

insists that the dying declaration should be of such a nature as

to inspire full confidence of the Court in its correctness. The

Court has to be on guard that the statement of deceased was not

as a result of either tutoring, prompting or a product of

imagination. The Court must be further satisfied that the

deceased was in a fit state of mind after a clear opportunity to

observe and identify the assailants. Once the Court is satisfied

that the declaration was true and voluntary, undoubtedly, it can

base its conviction without 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. The rule requiring corroboration is merely a rule

of prudence. This Court has laid down in several judgments the

principles governing dying declaration, which could be

summed up as under:-

(i) There is neither rule of law nor of prudence that

dying declaration cannot be acted upon without

corroboration (Munnu Raja v State of M.P.)

(ii) If the Court is satisfied that the dying declaration

is true and voluntary it can base conviction on it,

without corroboration. (State of U.P. v. Ram Sagar

Yadav, Ramawati Devi v. State of Bihar).

(iii) This Court has to scrutinize the dying declaration

carefully and must ensure that the declaration is not the

result of tutoring, prompting or imagination. The

deceased had opportunity to observe and identify the

assailants and was in a fit state to make the declaration.

(K. Ramachandra Reddy v. Public Prosecutor).

(iv) Where dying declaration is suspicious it should

not be acted upon without corroborative evidence

(Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could

never make any dying declaration the evidence with

regard to it is to be rejected (Kake Singh v. State of

M.P.)

CRL A. 189/93 and 195/93 of 44

(vi) A dying declaration which suffers from infirmity

cannot form the basis of conviction (Ram Manorath v.

State of U.P.)

(vii) Merely because a dying declaration does not

contain the details as to the occurrence, it is not to be

rejected (State of Maharashtra v. Krishnamurti

Laxmipati Naidu).

(viii) Equally, merely because it is a brief statement, it

is not be discarded. On the contrary, the shortness of

the statement itself guarantees truth, (Surajdeo Oza v.

State of Bihar).

(ix) Normally the court in order to satisfy whether

deceased was in a fit mental condition to make the

dying declaration look up to the medical opinion. But

where the eye witness has said that the deceased was in

a fit and conscious state to make this dying declaration,

the medical opinion cannot prevail. (Nanahau Ram v.

State of M.P.)

(x) Where the prosecution version differs from the

version as given in the dying declaration, the said

declaration cannot be acted upon (State of U.P. v.

Madan Mohan).

24. Similar views are expressed in Mathu Kutty (supra), Bapu v. State of

Maharashtra: (2006) 12 SCC 73 and Bijoy Das v. State of West Bengal:

(2008) 4 SCC 511. It will also be relevant to notice the Supreme Court

decisions being Shanmugan V. State of Tamilnadu: (2002) 10 SCC 4 and

Sher Singh v. State of Punjab: (2008) 4 SCC 265. The Supreme Court in

Shanmugan (supra) held that the mere fact that the doctor had not been

examined did not affect the evidentiary value to be attached to a dying

declaration. The Supreme Court clearly observed that the proposition laid

down in Paparanbaka Rosamma and Otheres v. State of A.P.: (1999) 7

SCC 695 that - “in the absence of a medical certification that the injured

CRL A. 189/93 and 195/93 of 44

was in a fit state of mind at the time of making the declaration, it would be

very much risky to accept the subjective satisfaction of a Magistrate” - was

no longer good law in view of the larger Bench decision in Laxman (supra).

In Shanmugan (supra), the cross-examination of the doctor was found not

to effect the evidentiary value attaching to the dying declaration therein

inasmuch as the Magistrate who recorded the statement put some

preliminary questions to the declarant to satisfy himself that the injured was

conscious enough to give the statement. It is, therefore, apparent that where

the Court is able to come to the conclusion, even in the absence of the

examination of the doctor who gave the fitness certificate, that the declarant

was in a fit state of mind when the dying declaration was made, the non-

examination of such doctor would not effect the evidentiary value of the

dying declaration. In Sher Singh (supra), the Supreme Court observed:-

“The court should ensure that the statement was not as a result

of tutoring or prompting or a product of imagination. It is for

the court to ascertain from the evidence placed on record that

the deceased was in a fit state of mind and had ample

opportunity to observe and identify the culprit. Normally, the

court places reliance on the medical evidence for reaching the

conclusion whether the person making a dying declaration was

in a fit state of mind, but where the person recording the

statement states that the deceased was in a fit and conscious

state, the medical opinion will not prevail, nor can it be said

that since there is no certification of the doctor as to the fitness

of mind of the declarant, the dying declaration is not acceptable.

What is essential is that the person recording the dying

declaration must be satisfied that the deceased was in a fit state

of mind. Where it is proved by the testimony of the Magistrate

that the declarant was fit to make the statement without there

being the doctor‟s opinion to that effect, it can be acted upon

provided the court ultimately holds the same to be voluntary

CRL A. 189/93 and 195/93 of 44

and truthful. A certificate by the doctor is essentially a rule of

caution and, therefore, the voluntary and truthful nature of a

statement can be established otherwise.”

25. A dying declaration can be oral or written. In rare cases, it can even

take shape of nods or gestures [see Meesala Ramakrishnan v. State of A.P.:

(1994) 4 SCC 182]. Oral dying declarations are made to witnesses who

come before court and testify as to what the person who make the

declaration told them before that person died. Written dying declarations

could also be of two kinds. A declaration could be, inter alia, in the hand

writing of the declarant before he or she died. Secondly, it could be written

or scribed by someone else on the dictation of the declarant. Whether the

dying declaration is oral or written, the court has to determine whether it is

correct and truthful. While considering whether it is the correct statement of

the declarant, it must be established as a fact that the statement was made by

the declarant and that it was correctly recorded. But the mere fact that the

dying declaration was correctly recorded and was, in fact, made by the

declarant is not sufficient for the court to base a conviction thereupon. The

Court must also examine the second and extremely important aspect of a

dying declaration and that is the truthfulness on veracity of the statement. A

person may make a false declaration. Though, it may be correctly recorded,

it still remains untruthful and cannot be relied upon. To determine the

truthfulness of a statement, the Court has to ascertain as to whether there is

any evidence that the person made the statement under any coercion, undue

CRL A. 189/93 and 195/93 of 44

influence or pressure from anybody else. The Court must also examine the

possibility of tutoring. Another factor which the court has to look into is

whether the declarant was in a fit state of mind to make the statement. The

declarant may have been in a semi conscious state as a result of the injury

inflicted upon him/her. The declarant may also be in a state of delirium on

account of injury or on account of the medication given by the doctors to

treat his/her injuries. Then, of course, the court must also satisfy itself that

the declarant, though not under any coercion, pressure or otherwise being in

a fit state of mind to make the statement, had done so truthfully. Though,

there is a presumption that a person close to death would normally tell the

truth, it is not improbable that he may also lie. These are the principles

which have to be kept in mind while considering a dying declaration and in

basing a conviction on a dying declaration.

26. In order to ascertain as to whether the dying declaration Ext. PW16/A

was authentic and correct, in the sense that it was the statement of Hemlata

and that whatever she said had been correctly recorded, we have to first

examine the testimony of PW16 Mr V.P. Rao the SDM, who is said to have

recorded the statement. As per his testimony, PW16 V.P. Rao stated that on

the request of ASI Rampath of police post Nand Nagri, he reached LNJPN

Hospital at about 4.30 p.m. where the injured Hemlata had been declared fit

for giving a statement at 4.20 p.m. According to him, Hemlata had been

identified and had been declared fit for giving the statement by Dr Mohd

Ibrarullah vide his endorsement Ext. PW15/C on the said Ext. PW16/A. He

CRL A. 189/93 and 195/93 of 44

further stated that he had recorded Hemlata‟s statement and she signed at the

end of the statement and that, he attested the same and also signed. He

indicated that her said statement is Ext. PW16/A. He further stated that Dr

Ibrarullah made his endorsement and also affixed his signatures Ext

DW15/D and Ext. PW15/E. PW16 V.P. Rao further stated that Hemlata‟s

statement was written on her dictation. He questioned her and she replied.

The said witness also testified that her statement was recorded correctly. He

handed over the same to the Investigating Officer. Hemlata‟s signature was

at point „A‟ in Ext. PW16/A. In his cross examination, the said witness

stated that although, he had not recorded the time as to when the police

officer contacted him at the Shahdara Courts, but he had come there

sometime before 4 p.m. and that he accompanied him to the hospital. In

cross examination, it is once again confirmed that the dying declaration

made by the deceased was the complete version of the patient and no

addition or omission were made on his own accord. Coupled with this

testimony of PW16, we have the evidence in the shape of the MLC Ext.

PW17/A. In the said MLC Ext. PW17/A, it is recorded that Hemlata was

brought to hospital by Naresh Chand on 27.4.1985 at 10.10 a.m. At that

time, she was unconscious. There is an endorsement of Dr Rajan Khanna of

SDN Hospital at 10.10 a.m. to the effect that Hemlata was “unfit for

statement”. As per the testimony of prosecution witnesses and, in particular,

PW22 ASI Rampat, Hemlata was moved from SDN Hospital to LNJPN

Hospital between 11 a.m. to 12 noon on 27.4.1985. The said MLC Ext.

PW17/A contain an endorsement Ext. PW15/A of Dr Mahapatra at 12.30

CRL A. 189/93 and 195/93 of 44

p.m. on 27.4.1985 itself where, again, it is mentioned – “Pt. unfit to give

statement”. There is yet another endorsement on the said MLC with regard

to the fitness of the patient. That endorsement has been marked as Ext.

PW15/B. It is an endorsement of one Dr Keshav of LNJPN Hospital at 4.30

p.m. on 27.4.1985 and it reads as follows:

“Patient is fit for giving statement”.

Then there is the endorsement Ext. PW16/C on the dying declaration itself

of Dr Ibraullah allegedly made on 27.5.1985 at 4.30 p.m. to the following

effect:-

“Pt. is identified and fit for giving statement.”

The signatures of Dr Ibraullah appear at two other places in the said dying

declaration Ext. PW16/A and the same have been marked as Ext. PW15/D

and Ext. PW15/E.

27. The prosecution has not examined any of the said doctors – neither Dr

Rajan Khanna of SDN Hospital nor Dr Mahapatra, Dr Keshav and Dr

Ibraullah of LNJPN Hospital. Non-examination of the doctor who gave the

certificate of fitness would not in itself be fatal to the prosecution case

provided there are other circumstances which are brought forth by the

prosecution to indicate that the declarant was in a fit state of mind. As

noticed earlier, in cases where the doctor who purportedly gave the fitness

certificate is not examined, the person or Magistrate recording the statement

CRL A. 189/93 and 195/93 of 44

should himself state that he was satisfied that the declarant was in a fit state

of mind. In the present case, it is nowhere stated by PW16 Mr V.P. Rao that

he had satisfied himself that Hemlata was fit to make the statement. On the

other hand, he has clearly stated that the statement of Hemlata was recorded

by him on the basis of the certificate of Dr Ibraullah declaring her fit for

giving a statement. There is another circumstance which goes against the

prosecution and that is that Dr Keshav of LNJPN Hospital made the

endorsement at 4.30 p.m. that the patient was fit for giving a statement. But,

the statement was not recorded in the presence of Dr Keshav nor was any

endorsement made by him on the dying declaration PW16/A. On the other

hand, at exactly the same time i.e., at 4.30 p.m. the certificate of fitness is

said to have been given by Dr Ibraullah and the endorsement is made on Ext.

PW16/A. How could two doctors, at exactly the same time, make the

endorsement with regard to the fitness of Hemlata? This question remains

unanswered. An answer to this question and other questions pertaining to

the fitness of Hemlata for making a statement could have been provided had

the prosecution produced the doctors as witnesses before Court.

Unfortunately, that was not done and this circumstance will certainly go

against the prosecution.

28. As we have pointed out earlier, that while considering the question of

correctness or authenticity of a dying declaration the question of mental

fitness of the person making the dying declaration is also of importance.

Suppose the declarant was not in a fit condition at all to make any kind of

CRL A. 189/93 and 195/93 of 44

statement and yet a statement is produced by the prosecution as being one

made by the declarant, serious doubts would arise as to the correctness and

authenticity of such a statement. How could a person who was unfit to make

a statement have made a statement? In the context of the present case, we

find that when Hemlata was brought to SDM Hospital, Dr Rajan Khanna

declared her unfit for making a statement at 10.10 a.m. Her condition

continued to be the same as would be reflected by Dr Mahapatra‟s

endorsement at 12.30 p.m. at LNJP Hospital where he also found the patient

unfit to give a statement. In fact, the death summary Ext. PW6/A given at

LNJP Hospital also indicates that the condition of Hemlata who had been

brought in shock with 85% burns “remained unchanged” during the time of

admission and progress till death.

29. Moreover, it is clear that at least till 12.30 p.m. Hemlata was not in a

fit condition for making any statement. This being the position, where was

the requirement for summoning the SDM at that point of time? PW22

Rampath stated in his examination-in-chief that he and head constable Janki

Prasad reached LNJPN Hospital. He stated that on the MLC of injured

Hemlata, the doctor on duty declared injured Hemlata fit for statement. He

further stated that as the condition of the injured deteriorated, he directed

Head Constable Janki Prasad to call the SDM to record his statement. He

also rushed to contact the SDM, Shahdara and that he reached the office of

the SDM and requested him to come to LNJPN Hospital. The SDM went to

LNJPN Hospital and he produced the MLC of the injured before the doctor

who again declared the patient fit for making a statement and an

CRL A. 189/93 and 195/93 of 44

endorsement was made on the MLC and the SDM, Shahdara recorded the

statement of the injured Hemlata.

30. From the aforesaid testimony of PW22 Rampat, it appears that he

went to call the SDM for recording the statement of Hemlata only after the

doctor on duty had declared Hemlata fit for statement and only because her

condition was deteriorating. This is not borne out by the endorsement made

on the MLC Ext. PW17/A. As we have already indicated above, Dr Rajan

Khanna of SDN Hospital had found Hemlata to be unfit for statement at

10.10 a.m. Between 11 a.m. and 12 noon, Hemlata was moved to LNJPN

Hospital. At 12.30 p.m., Dr Mahapatra of LNJPN Hospital made an

endorsement that Hemlata was not fit for giving a statement. It is clear that

till 12.30 p.m. Hemlata was not fit for making any statement. And, there is

no evidence that her condition improved or deteriorated. PW22 S.I. Rampat

in his cross-examination disclosed that he reached LNJP Hospital at about

12 noon and that at about 12.30 p.m. he contacted and inquired from the

doctor as to whether the injured was fit for making the statement. He also

stated that he remained in hospital for about half an hour or 45 minutes and

then went to the Shahdara Courts to call the SDM. According to him, he

reached the Shahdara Courts at about 1 p.m. or 1.15 p.m. From these

statements, it is clear that PW22 Rampat arrived at LNJPN Hospital at about

12 noon and left, latest, by 12.45 p.m. Till such time the only two

endorsements made in the MLC Ext. PW17/A were (1) the endorsement of

Dr Rajan of LNJPN Hospital at 10.10 a.m. and (2) an endorsement of Dr

CRL A. 189/93 and 195/93 of 44

Mahapatra of LNJPN Hospital at 12.30 p.m. Both these endorsements

indicated that Hemlata was unfit for making a statement. It is, therefore,

clear that there was no occasion for PW22 Rampat to have set out in search

of the SDM at 12.30 to 12.45 pm., inasmuch as at that point of time Dr

Mahapatra had declared Hemlata to be unfit for giving any statement.

31. If PW22 S.I. Rampat is to be believed, the condition of Hemlata was

deteriorating and it is because of this that he hurried to contact the SDM for

the purposes of having her statement recorded. But, this is in sharp contrast

to his behavior on his alleged arrival at the Shahdara Court at 1-1.15 p.m. In

his cross-examination, the said witness stated that when he reached the

Shahdara Courts, the SDM was not available and that he waited for him and

met him later on. He, of course, did not remember the time when he met the

SDM. At this point, it would be relevant to co-relate this with the testimony

of PW16 Mr V.P. Rao who, in his cross-examination, stated that he had not

recorded the time of the police officer contacting him at the Shahdara Courts

but the said police officer had come sometime before 4 p.m. and that he had

accompanied him to LNJPN Hospital and arrived at the hospital at about

4.30 p.m. Now, let us analyse the statements given by these two witnesses.

On the one hand, PW 22 Rampat stated that because of the emergent

situation in view of the deteriorating condition of Hemlata he reached the

Shahdara Courts to call the SDM for having Hemlata‟s statement recorded

but on reaching there at about 1.15 p.m. he waited there for three hours till

he contacted the SDM at around 4 p.m. This period of time cannot be

CRL A. 189/93 and 195/93 of 44

explained by his conduct. Was there only one Magistrate available whom he

could contact? In fact, the Delhi High Court Rules required him to seek the

services of a Judicial Magistrate and not an Executive Magistrate. He could

have straightway gone to the Chief Judicial Magistrate and requested him for

either deputing another Judicial Magistrate or himself for recording the

statement of Hemlata. We find the conduct of PW22, as stated by him, to be

not in consonance with what might have actually transpired. It appears to us

that there is some truth in the suggestion given by the defence at the time of

cross-examination of PW22 to the effect that he, in fact, started from LNJPN

Hospital at about 3.30 p.m. and met the SDM PW16 Mr V.P. Rao at about 4

p.m.

32. Another factor which creates doubts in our minds is that between

12.30 p.m. and 4.30 p.m. there is no endorsement of any doctor indicating

that Hemlata was fit for making a statement. Suddenly, everything happens

at 4.30 p.m. Dr Deshav gives his endorsement that the patient is fit for

making a statement at 4.30 p.m. Dr Ibraullah identifies Hemlata and

declared her fit to make a statement; again exactly at 4.30 p.m. and the SDM

PW16 Mr V.P. Rao arrives at the LNJPN Hospital at 4.30 p.m. and

immediately begins to record the statement of Hemlata. It may be a co-

incidence but in the background of the unreliable testimony of PW22, it

certainly does not appear to be a likely co-incidence. Considering all these

factors including the important fact that PW16 did not satisfy himself with

regard to the fitness of Hemlata, we are of the view that there is a great deal

CRL A. 189/93 and 195/93 of 44

of doubt surrounding the question of correctness and authenticity of the

dying declaration Ext. PW16/A.

33. We may also note that there are two alleged oral dying declarations

made to PW2 Taras Chand and PW3 Smt. Bimla Devi. It is interesting to

note that these declarations were made prior to the purported dying

declaration Ext. PW16/A. Insofar as PW3 Smt. Bimla Devi is concerned,

she has stated in her cross-examination that on 27.4.1985 when she and her

son (Taras Chand Jain) visited her daughter, she was in the ward. She stated

that they had reached there at 3 p.m. It is at that point of time that Hemlata

is said to have stated to her that while she was „brooming‟ the house Usha

started abusing her and thereupon Usha and Naresh came to her and poured

kerosene on her and she was put on fire. PW3 also stated in her

examination-in-chief that Hemlata was conscious when she was talking and

was giving rational answers.

34. Similarly, PW2 Taras Chand, who is Hemlata‟s brother, stated that on

27.4.1985 in the afternoon he came to know at his shop that Hemlata had

been burnt. He went first to General Hospital Shahdara and then to LNJPN

Hospital to meet his sister Hemlata. There he met her and apparently told

him that while she was busy in the household work when Usha and Naresh

came to her and poured kerosene oil on her and put her on fire. Thereafter,

they closed the door and after sometime opened the door and sprinkled water

CRL A. 189/93 and 195/93 of 44

in order to extinguish the fire. The said witness also stated that his sister

Hemlata was married to Mahesh Chand Goel who is the appellant Naresh‟s

brother. She had two children aged about five years and two and a half

years. According to him, the in-laws of Hemlata had, throughout, treated

her with cruelty. However, he stated that Hemlata‟s Kriya ceremony was

performed by the in-laws of Hemlata. In his cross-examination, he admitted

that Hemlata used to be ill. He also admitted that the houses of Mahesh and

Naresh were situated on plot A-5, Ashok Nagar and that the back of

Mahesh‟s house is towards the front of Naresh‟s house and in between there

is a vacant space. He also admitted that the houses are not interconnected.

He, of course, has denied the suggestion that Hemlata tried to commit

suicide by burning herself. Importantly, he stated that he reached LNJPN

Hospital at 4 p.m. on 27.4.1985. He denied the suggestion that he along

with his mother (PW3 Bimla Devi) had reached LNJPN Hospital at 2 p.m.

35. From the testimony of these two witnesses i.e., PW2 and PW3, it

appears that PW3 Bimla Devi spoke to her daughter Hemlata at 3 p.m. and

that PW2 Taras Chand spoke to his sister Hemlata at 4 p.m. Of course, there

are some variations in what these witnesses say about the statement made by

Hemlata to them, but we shall ignore those for the time being. What is of

significance is that neither of the two witnesses acknowledged the presence

of any police officer in LNJPN Hospital on that date, i.e., on 27.4.1985.

They also made no reference to any statement being recorded by the SDM

PW16 Mr V.P. Rao. PW3 Bimla Devi had categorically stated that she and

her son visited her daughter in Hospital on 27.4.1985 there was no police

CRL A. 189/93 and 195/93 of 44

man there. According to her they had reached together at about 3 p.m. (of

course, according to PW2 he had reached the hospital at 4 p.m., but, we shall

ignore this discrepancy for the time being). PW3 Bimla Devi stated that

from 27th April, 1985 till Hemlata died, PW3 looked after her and PW2

Taras Chand use to visit off and on. She stated that it was incorrect that any

police officers were present on 27.4.1985 and that they had told her that her

daughter had allegedly told them and the doctor that she had tried to commit

suicide and that if she remained alive she would be prosecuted. If PW3

Bimla Devi is to be believed, then, she did not meet any police officer on

27.4.1985. Since she stated that she remained throughout with her daughter

till she died, it is obvious that the presence of PW22 and the SDM PW16 for

recording of the statement becomes suspect. It is strange that neither PW22

Rampat nor PW16 V.P. Rao acknowledge the presence of Hemlata‟s brother

PW2 Taras Chand or her mother PW3 Bimla Devi and vice-versa. In fact,

PW22 in his cross-examination revealed that he did not know when PW3

Bimla Devi and PW2 Taras Chand had come to hospital. He volunteered

that they did not meet him. He further stated that after going to the hospital

he remained in the hospital up to 5.30 p.m. and left there about 6 p.m. Thus,

according to PW22 throughout his two periods of stay at LNJPN Hospital he

did not meet PW2 or PW3. But PW3 Bimla Devi categorically stated that

she arrived at 3 p.m. and stayed with her daughter till she died on 29.4.1985.

It does appear to us to be very strange that PW2 and PW3 on the one hand

and PW22 and PW16 on the other hand do not acknowledge the presence of

each other at around 4.30 p.m. when, as per their independent versions, both

CRL A. 189/93 and 195/93 of 44

sets of persons were present in Hospital. Such a state of affairs casts serious

doubts on the testimonies of these witnesses, particularly with regard to the

so called oral dying declarations as also the recording of the written dying

declaration Ext. PW16/A.

36. When we examine the next aspect concerning the dying declaration

Ext PW16/A, which aspect involves the truthfulness of the dying

declaration, we find that the issue of the declarant being fit to make a

statement has a bearing on this aspect also. Thus, the question of fitness

casts a reflection on both the correctness/authenticity of the statement as also

on its truthfulness. This is easily explained. Let us assume that Hemlata

made the statement Ext PW16/A. But, before it can be relied upon for the

purposes of convicting the appellants, it would also have to be established

that what she state was truthful. If she was in a state of delirium or she was

slipping in and out of consciousness, it is quite possible that what she stated

could have been a part of her imagination and not necessarily a narration of

the true and full facts. It is here, also, that the circumstance of fitness

becomes important. In the present case we have already noted that although

the doctor certified the fitness, the doctor has not been examined and,

therefore, an opportunity has not been given to the defence to cross-examine him.

We have already noted above that the law is clear that the non-examination

of such a doctor would by itself would not be fatal to the prosecution case

provided, however, the prosecution can satisfy the court through other

evidence on record that the declarant was in a fit state of mind to make the

CRL A. 189/93 and 195/93 of 44

statement. Courts, as we have already pointed out above, have taken the

view that where the person recording the statement satisfies himself with

regard to the fitness of the declarant to make the statement and then records

the statement, the non-examination of the doctor or the absence of any

certificate of fitness from the doctor or even where the certificate of fitness

given by a doctor is contrary to the observations of the person recording the

statement, the same would not be fatal to the prosecution case. And, in such

an eventuality, the dying declaration could be relied upon. However, in the

present case, PW16 V.P. Rao has not recorded his own satisfaction with

regard to fitness of Hemlata for making the statement. He has merely relied

upon the certificate of fitness/endorsement of Dr Ibraullah who,

unfortunately, has not been produced as a prosecution witness. Therefore, it

will not be possible for us to come to a conclusion that Ext. PW16/A, which

purports to be a statement of Hemlata, is a truthful one because we are

unsure as to whether she was in a fit state of mind to have made the said

declaration. This is, of course, assuming that Ext. PW16/A is authentic and

correct.

37. There is also the possibility of tutoring and influence on the part of the

PW2 and PW3. As noted above, PW2 and PW3 both, on their own saying,

met with Hemlata and talked with her. PW3 is said to have talked to her at 3

p.m. and PW2 Taras Chand is stated to have had a talk with Hemlata at 4

p.m. Ext. PW16/A is said to have been recorded at about 4.30 p.m. The

possibility of these witnesses, namely, PW2 Taras Chand and PW3 Bimla

CRL A. 189/93 and 195/93 of 44

Devi, influencing the mind of Hemlata, cannot be ruled out. This is all the

more likely in the backdrop of the rather suspicious circumstance that PW2

and PW3 on the one hand and PW16 and PW22 on the other hand do not

acknowledge the presence of each other in the hospital at about 4.30 p.m.

when all of them have individually stated that they were present in the

hospital with Hemlata.

38. In this case we also note that the defence has examined as many as

seven witnesses. DW1 Balram Singh has stated that he was at the coal depot

of appellant Naresh Chand for the purposes of purchasing coal. While he

was in the process of doing so, he heard shrieks coming from the rear

portion of the plot from where he was purchasing coal i.e. A-5, Ashok

Nagar, Shahdra. The shrieks were – “Aag lag gai bachao”. The said

witness along with other persons went with the accused Naresh Chand.

Naresh is said to have jumped over the wall to reach the place from where

the sheiks originated. He tried to extinguish the fire. According to the said

witness after extinguishing the fire Naresh put his own lungi which he was

wearing, over the lady as she has become naked. The said witness further

stated that Naresh lifted the lady and brought her on the road and, after

placing her in a jeep, took her to hospital. A similar testimony is given by

DW2 Chander Mohan, who is also a shop keeper and was also present in the

shop of the appellant for the purposes of purchasing coal. He, however,

added that Naresh went inside the house to extinguish the fire and brought

the lady out. In the process appellant Naresh is said to have sustained burn

CRL A. 189/93 and 195/93 of 44

injuries on his hand. The witness further stated that Naresh brought the

injured lady to the road and removed her to hospital in the jeep of one

Chaudhary which was parked there. He also stated that he did not see Usha

Rani on that day.

39. DW4 Baleshwari has also made a similar statement. She also stated

that she was present in the shop of appellant Naresh for the purposes of

buying coal and when the receipt was prepared and handed over to her she

had heard the cries and screams coming from behind the coal store. At that

point of time, the appellant Naresh was said to be writing some other receipt.

She stated that Naresh ran behind the stall. She also followed him and there

were about 25 other persons. Naresh extinguished the fire of the burning

lady and then he also filled a bucket of water and covered her with his own

“Tehmat”. She further stated that the appellant Naresh removed the injured

lady from the spot. In her cross-examination, DW4 Baleshwari also stated

that she did not see Usha on the day of occurrence nor did she see her in the

shop.

40. DW3 Mayavati states that she heard of the incident. She went to the

hospital. There she found two police officials one of them being ASI

Rampat. She stated that on the advice of doctor and police officer she gave

Hemlata one glass of water. She also testified that Hemlata gave a statement

to the police in the presence of doctor and herself that she attempted to

CRL A. 189/93 and 195/93 of 44

commit suicide as she was not feeling well and was fed up with life and the

her husband was also not helping her. The said witness stated that she

remained there for 2/3 hours in the hospital and when the mother and brother

of the deceased Hemlata reached there, she returned to her home. DW3

Mayavati is the maternal aunt of Mahesh Chand (Hemlata‟s husband) and

the appellant Naresh Chand.

41. At the outset, we may say that we are not inclined to believe the

testimony of this witness. First of all, she is closely related to the appellant

Naresh Chand being his maternal aunt. Secondly, her testimony that

Hemlata gave a statement in the presence of Doctors which was recorded by

the police does not find corroboration from the evidence on record,

particularly, the MLC Ext. PW17/A. The said MLC, as indicated above,

contains the endorsement with regard to Hemlata‟s condition being unfit for

giving any statement at 10.10 a.m. and 12.30 p.m. The first endorsement

with regard to Hemlata being fit for giving statement was recorded at 4.30

p.m., by which time, DW3 Mayawati, by her own admission, had already

left the hospital.

42. We now come to DW5 Ghanshyam whose house is stated to be

opposite the house of the accused. According to this witness, appellant

Naresh had told him that his sister-in-law had received burn injuries and she

was to be admitted in hospital. The appellant (Naresh) had brought her in a

CRL A. 189/93 and 195/93 of 44

burnt condition in his arms and that he (DW5 Ghanshyam) had taken them

in a jeep to the general hospital. He also stated that he had not seen the

appellant Usha at that time. He reiterated that he dropped the appellant

Naresh and his brother‟s wife in the hospital and came back thereafter.

DW6 Dhir Singh is the record clerk of SDM Hospital, Delhi, who was

produced to testify to the medical record of appellant Naresh by Dr B.

Nayak on 3.5.1985. DW7 Dr B. Nayak of SDM Hospital, Delhi testified

that he found injuries on the right hand of the appellant Naresh. The injuries

were “old burn injuries”. However, this witness stated that the injuries

found on the hands of the appellant Naresh were not six days old and were

not coinciding with 27.4.1985. He, however, opined that the injuries could

have been possible if he had to extinguish the fire in order to save a burning

person.

43. The law with regard to appreciation of the evidence produced by the

defence is clear and well settled, but is often lost sight of. In Dudh Nath

Pandey v. State of Uttar Pradesh.: (1981) 2 SCC 166, the Supreme Court

held:-

“Defence witnesses are entitled to equal treatment with those of

the prosecution. And, courts ought to overcome their

traditional, instinctive disbelief in defence witnesses. Quite

often, they tell lies but so do the prosecution witnesses.”

The said decision was followed in State of U.P. v. Babu Ram: (2000) 4

SCC 515. The Supreme Court further clarified:-

CRL A. 189/93 and 195/93 of 44

“ Deposition of witnesses, whether they are examined on the

prosecution side or defence side or as Court witnesses, are

oral evidence in the case and hence the scrutiny thereof shall

be without any predilection or bias. No witness is entitled to

get better treatment merely because he was examined as a

prosecution witness or even as a court witness. It is judicial

scrutiny which is warranted in respect of the depositions of all

witnesses for which different yardsticks cannot be prescribed

as for those different categories of witnesses.”

Similarly, in State of Haryana v. Ram Singh: (2002) 2 SCC 426, the

Supreme Court observed:-

“Incidentally, be it noted that the evidence tendered by

defence witnesses cannot always be termed to be a tainted one

- the defence witnesses are entitled to equal treatment and

equal respect as that of the prosecution. The issue of

credibility and the trustworthiness ought also to be attributed

to the defence witnesses on a par with that of the

prosecution.”

With regard to the parity between prosecution and the defence witnesses

insofar as Courts are concerned, the Supreme Court in Banti V. State of

M.P. : (2004) 1 SCC 414 observed:-

“It is true, the evidence of the defence witness is not to be

ignored by the courts. Like any other witness, his evidence

has to be tested on the touchstone of reliability, credibility and

trustworthiness, particularly when he attempts to resile from

and speak against records and in derogation of his earlier

conduct and behavior. If after doing so, the Court finds it to

be untruthful, there is no legal bar in deserting it.”

44. With these principles in mind, let us try to ascertain as to what exactly

happened on 27.4.1985. The prosecution case is that an information was

CRL A. 189/93 and 195/93 of 44

received from an unknown person at the police post Nand Nagri at 10.40

a.m. that the clothes of a woman cought fire at A-5, Ashok Nagar and that

some officer may be sent to the spot. This information was recorded in DD

Entry No. 12 dated 27.4.1985 which has been marked as Ext. PW13/A. It is

pursuant to this information that PW22 ASI Rampat set out for investigation

along with Constable Tej Ram. It is apparent that based upon this

information, PW22 ASI Rampat ought to have gone straightway to the spot

i.e., House No. A-5, Ashok Nagar. But that is not what he did. Instead, as

per his own testimony, he, along with Head Constable Janki Prasad and Tej

Ram rushed to SDN Hospital. Without going to the spot, i.e. A-5, Ashok

Nagar, Delhi, how would PW22 ASI Rampat have known that the injured

Hemlata had been taken to hospital and that, too, to which hospital? This

part of the prosecution case is completely missing as to how the police

officer came to know that the injured had been taken to SDN Hospital. As

per the testimony of PW22, he went to the scene of the occurrence only at

about 6 p.m. in the evening after the SDM had purportedly recorded the

statement Ext. PW16/A. Nothing has been produced in evidence by the

prosecution to indicate how the injured Hemlata was taken to hospital and

under what circumstances. This part of the prosecution case is a complete

blank. The missing link is provided by defence witnesses. DW1 Balram

Singh, DW2 Chander Mohan, DW4 Baleshwari and DW5 Ghanshyam have

all stated that it is the appellant Naresh who extinguished the fire and took

Hemlata to Hospital. DW5 Ghanshyam has stated that he took appellant

Naresh and the injured Hemlata to SDN hospital in his jeep. Even the MLC

CRL A. 189/93 and 195/93 of 44

Ext. PW17/A indicated that Hemlata was brought to hospital by the

appellant Naresh. Why has the prosecution not collected and/or produced

any evidence with regard to this important circumstance which reflects on

the conduct of the appellant Naresh, is a complete mystery to us. The

defence witnesses have stated that the appellant Naresh was present in the

coal shop when they heard the screams and cries. All of them reached the

source of the screams and cries. Naresh went inside the house after jumping

a wall and extinguished the fire. The injured Hemlata was covered with the

lungi which Naresh was wearing and it was Naresh who brought out

Hemlata onto the road for being taken to hospital. She was taken to hospital

by Naresh in the vehicle provided by DW5 Ghanshyam. None of the

witnesses have testified that they had seen Usha at that point of time. In

passing we may also note the short history given in the death summary Ext.

PW6/A. It reads as follows:-

“Sustained 85% burns on a suicide attempt by pouring kerosene

over herself and lighting fire.”

45. Considering all the circumstances narrated above, we are not inclined

to base a conviction on the so called dying declaration Ext. PW16/A or on

the oral dying declarations purportedly made to PW2 Taras Chand and PW3

Bimla Devi. The other evidence on record also does not conclusively or at

least beyond reasonable doubt establish the guilt of the appellants. They are

entitled to get the benefit of doubt. The impugned judgment and order on

sentence are set aside and the appellants stands acquitted of all charges in

CRL A. 189/93 and 195/93 of 44

this case. The appellants have been on bail. Their bail bonds stand

cancelled and the sureties stand discharged.

The appeals are allowed.

BADAR DURREZ AHMED, J

V.B.GUPTA, J

JULY 10, 2009

j

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