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CRL A. 189/93 and 195/93 Page 1 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 Page 2 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 Page 3 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 Page 4 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 Page 5 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 Page 6 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 Page 7 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 Page 8 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 Page 9 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 Page 10 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 Page 11 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 Page 12 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 Page 13 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 Page 14 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 Page 15 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 Page 16 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 Page 17 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 Page 18 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 Page 19 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 Page 20 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 Page 21 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 Page 22 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 Page 23 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 Page 24 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 Page 25 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 Page 26 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 Page 27 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 Page 28 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 Page 29 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 Page 30 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 Page 31 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 Page 32 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 Page 33 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 Page 34 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 Page 35 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 Page 36 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 Page 37 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 Page 38 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 Page 39 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 Page 40 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 Page 41 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 Page 42 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 Page 43 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 Page 44 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